\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES, Appellee, v. José Francisco RODRÍGUEZ-REYES, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1217\n\n UNITED STATES,\n\n Appellee,\n\n v.\n\n JOSÉ FRANCISCO RODRÍGUEZ-REYES,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Francisco A. Besosa, U.S. District Judge]\n\n\n Before\n\n Torruella, Selya, and Lynch,\n Circuit Judges.\n\n\n Luis A. Guzmán Dupont for appellant.\n David C. Bornstein, Assistant United States Attorney, with\nwhom Mariana E. Bauzá-Almonte, Assistant United States Attorney,\nChief, Appellate Division, Thomas F. Klumper, Assistant United\nStates Attorney, Senior Appellate Counsel, and Rosa Emilia\nRodríguez-Vélez, United States Attorney, were on brief, for\nappellee.\n\n\n June 5, 2019\n\f LYNCH, Circuit Judge. This is a challenge to the\n\nimposition of an upwardly variant sentence of thirty-six months'\n\nimprisonment, following a guilty plea by José Francisco Rodríguez-\n\nReyes (Rodríguez) to a charge of being a felon in possession of a\n\nfirearm, in violation of 18 U.S.C. § 922(g)(1). The firearm was\n\nan AM-15 multi-caliber assault rifle which accepted 5.56\n\nmillimeter military-style ammunition. Rodríguez tried\n\nunsuccessfully to escape arrest. Rodríguez did not challenge\n\neither the procedural or substantive reasonableness of the\n\nsentence in the district court.\n\n As to procedural reasonableness, Rodríguez argues on\n\nappeal that the district court: (1) erred in the course of\n\nsentencing by discussing Rodríguez's arrests that did not result\n\nin convictions; (2) failed to consider adequately the 18 U.S.C.\n\n§ 3553(a) factors; and (3) erred in varying upward from the\n\ngovernment's sentencing recommendation. As to substantive\n\nreasonableness, Rodríguez argues that (1) the district court did\n\nnot sufficiently consider unspecified mitigating factors and the\n\nreasons for the government's sentencing recommendation, and (2)\n\nthe sentence imposed was longer than necessary.\n\n Finding no reversible error, we affirm Rodríguez's\n\nsentence.\n\n\n\n\n - 2 -\n\f I.\n\n \"When a sentencing appeal follows a guilty plea, 'we\n\nglean the relevant facts from the change-of-plea colloquy, the\n\nunchallenged portions of the presentence investigation report\n\n. . . and the record of the disposition hearing.'\" United States\n\nv. Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010) (quoting United\n\nStates v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009)).\n\nA. Facts of the Offense\n\n On February 23, 2017, officers from the Puerto Rico\n\nPolice Department (PRPD) received information about a future\n\nfirearm transaction, including the location, date, time, and\n\ndescription of vehicles likely to be involved. PRPD officers,\n\nalong with agents from the federal Department of Homeland Security\n\n(DHS), during surveillance observed Rodríguez and two other men\n\nstanding near the rear hatch of a Jeep Cherokee looking at a rifle.\n\nRodríguez drove away in the Jeep and the police officers and agents\n\nfollowed by car; Rodríguez then parked and entered the car of\n\nanother man involved in the attempted firearm transaction. The\n\nmen noticed the police officers and agents and fled by vehicle.\n\nTheir vehicle eventually crashed, and the officers detained the\n\ntwo men. After Rodríguez and the other man consented to a search\n\nof the vehicles, the officers and agents found an AM-15 multi-\n\ncaliber rifle, which Rodríguez admitted to purchasing online and\n\nwas planning to sell for $2,000.\n\n\n - 3 -\n\fB. Procedural History\n\n On March 8, 2017, a federal grand jury in Puerto Rico\n\nindicted Rodríguez on one count of being a felon in possession of\n\na firearm and one count of being an unlawful drug user in\n\npossession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)\n\nand (3), as well as aiding and abetting a co-defendant in the same\n\ntwo counts, in violation of 18 U.S.C. § 2. Rodríguez had been\n\nconvicted of prior felony charges. On May 11, 2017, Rodríguez\n\npleaded guilty to the one count of being a felon in possession of\n\na firearm, and the plea agreement provided for a total offense\n\nlevel (TOL) of twelve.\n\n The Presentence Investigation Report (PSR) followed the\n\nparties' calculations from the plea agreement, with a TOL of twelve\n\nresulting from a base level of fourteen and the removal of two\n\nlevels for acceptance of responsibility. See U.S.S.G. § 3E1.1(a).\n\nRodríguez had three prior convictions: two state illegal drug\n\npossession convictions in Texas (one for marijuana, one for both\n\nmarijuana and cocaine), and a federal conviction for conspiracy to\n\ncommit mail fraud and bank fraud in Puerto Rico. This gave\n\nRodríguez a criminal history category (CHC) of III. A TOL of\n\ntwelve and a CHC of III led to a guideline imprisonment range of\n\nfifteen to twenty-one months.\n\n The PSR also listed, as required, six arrests which did\n\nnot lead to convictions (but also did not lead to acquittals),\n\n\n - 4 -\n\ffour of which related to Rodríguez's illegal drug possession.1 See\n\nFed. R. Crim. P. 32(d)(2)(A)(i) (requiring that the PSR contain\n\ninformation on \"the defendant's history and characteristics,\n\nincluding . . . any prior criminal record\"). The drug arrests are\n\ndiscussed below. The PSR also stated that \"[i]n this case a\n\nvariance [may be] considered since the defendant has a high risk\n\nof recidivism.\" That risk was evidenced by, inter alia,\n\nRodríguez's prior criminal history (which took three pages of the\n\nPSR to recount), the fact that the offense of conviction took place\n\nwithin five months of his completion of a supervised release term\n\nfrom his federal mail and bank fraud imprisonment, and a pending\n\narrest warrant against him in El Paso, Texas for illegal possession\n\nof marijuana. By the time of completion of the PSR, the pending\n\nTexas \"charge was dismissed\" because Rodríguez \"was convicted in\n\nanother case.\"\n\n The PSR also described a history of illegal drug use by\n\nRodríguez spanning more than twenty-five years. Rodríguez stated\n\nthat he began smoking marijuana at the age of twelve and smoked\n\nmarijuana approximately five times per day, having returned to\n\ndrug use in 2002 after a one-year break following a drug treatment\n\n\n\n\n 1 These arrests were, in chronological order: a 2000\nPuerto Rico controlled substances possession arrest; a 2000 Puerto\nRico unlicensed firearm possession arrest; a 2005 Puerto Rico\n\"conjugal threats\" arrest; two 2009 Texas marijuana possession\narrests; and a 2010 New York marijuana possession arrest.\n\n\n - 5 -\n\fprogram (completed pursuant to a 2000 Puerto Rico drug charge).\n\nIndeed, Rodríguez tested positive for marijuana on February 27,\n\n2017, shortly after his arrest in the present case. He also stated\n\nthat he began using cocaine and Percocet when he was twenty-six,\n\nin 2004 or 2005. The PSR also stated that Rodríguez and his then-\n\nwife separated in 2005 \"[a]s a result\" of Rodríguez's \"mari[j]uana\n\naddiction.\"\n\n In his sentencing memorandum, Rodríguez did not object\n\nto the PSR or any facts within the PSR, including the facts as to\n\nthe disposition of his arrests and his drug use (he did say that\n\nsome of his debt had been paid off). (\"The Pre-Sentence Report\n\nwas discussed with [Rodríguez] and there are no objections.\") His\n\nsentencing memorandum acknowledged that Rodríguez \"ha[d] been\n\nusing Mari[j]uana since age 12 on a daily basis\" and his drug use\n\n\"ha[d] escalated to the use of Cocaine and Percocet.\"\n\nC. Sentencing Hearing\n\n In his sentencing memorandum and at the sentencing\n\nhearing, Rodríguez requested a sentence of fifteen months'\n\nimprisonment, at the bottom of the guidelines range. Rodríguez's\n\ncounsel expressly referred to the sentencing memorandum at the\n\nhearing. He did not dispute the PSR's calculations. At the\n\nsentencing hearing, the government requested a sentence of twenty-\n\none months' imprisonment, at the top of the guidelines range. It\n\nexplained the disposition of Rodríguez's arrests that had not led\n\n\n - 6 -\n\fto convictions, and Rodríguez's counsel stated that he had no\n\nobjections to the government's explanation.\n\n The district court accepted the PSR's calculations of\n\nthe TOL, the CHC, and the guidelines range. The district court\n\nthen listed Rodríguez's prior arrests that did not lead to\n\nconvictions, accurately describing the PSR and the government's\n\nexplanation of the disposition of these arrests.\n\n Explaining why it was following the recommendation of\n\nthe probation officer and imposing an upwardly variant sentence\n\n(as recommended by the probation officer), the district court gave\n\na number of reasons and justifications. To start, it stated that\n\n\"neither [side's] sentence recommendation reflects the seriousness\n\nof the offense, promotes respect for the law, protects the public\n\nfrom further crimes by [Rodríguez], or addresses the issues of\n\ndeterrence and punishment.\" These statements track closely the\n\nsentencing factors laid out at 18 U.S.C. § 3553(a)(2)(A), (B) and\n\n(C).2 The district court stated that it was also \"taking into\n\nconsideration that [Rodríguez's] criminal history category is\n\nunderrepresented.\"\n\n\n\n\n 2 In turn: \"(A) to reflect the seriousness of the offense,\nto promote respect for the law, and to provide just punishment for\nthe offense; (B) to afford adequate deterrence to criminal\nconduct; (C) to protect the public from further crimes of the\ndefendant . . . .\" 18 U.S.C. § 3553(a)(2).\n\n\n - 7 -\n\f The district court noted Rodríguez's \"encounters with\n\nthe law since he was 21 years old,\" as well as Rodríguez's\n\n\"recidivism, his drug use history, [and] his lack of steady\n\nemployment.\" The drug use described was that noted earlier, as\n\nwell as Rodríguez's positive test for marijuana on the date of his\n\narrest for the offense of conviction. The district court also\n\nstated that the arrest for the present firearm offense came \"less\n\nthan five months after having completed his supervised release\n\nterm\" for his federal wire and bank fraud conviction. The district\n\ncourt further stated that it was \"taking into consideration the\n\nnature of the weapon involved, an assault rifle, which accepts\n\n5.56 millimeter military ammunition.\"\n\n After describing these reasons for the variance, the\n\ndistrict court then imposed an upwardly variant sentence of thirty-\n\nsix months' imprisonment. That variant sentence is well under the\n\nstatutory maximum of 120 months. See 18 U.S.C. § 924(a)(2). At\n\nthe sentencing hearing, Rodríguez did not object to the sentence\n\nor challenge its substantive or procedural reasonableness. As\n\nRodríguez requested, the court recommended that he be placed in an\n\ninstitution in Florida.\n\n Rodríguez timely appealed.\n\n\n\n\n - 8 -\n\f II.\n\n \"In sentencing appeals, appellate review is\n\nbifurcated.\"3 United States v. Ruiz-Huertas, 792 F.3d 223, 226\n\n(1st Cir. 2015). We first consider whether the sentence is\n\nprocedurally reasonable, and then consider whether it is\n\nsubstantively reasonable. E.g., United States v. Clogston, 662\n\nF.3d 588, 590 (1st Cir. 2011).\n\nA. Procedural Reasonableness\n\n Because Rodríguez did not raise any procedural\n\nobjections to his sentence at the district court, as he\n\nacknowledges, this court's review is for plain error. United\n\nStates v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017). Plain\n\nerror requires \"four showings: (1) that an error occurred (2) which\n\nwas clear or obvious and which not only (3) affected the\n\ndefendant's substantial rights, but also (4) seriously impaired\n\nthe fairness, integrity, or public reputation of judicial\n\nproceedings.\" United States v. Duarte, 246 F.3d 56, 60 (1st Cir.\n\n2001); see also United States v. Romero, 906 F.3d 196, 205 (1st\n\nCir. 2018) (requiring showings of \"(1) error, (2) plainness,\n\n\n 3 Rodríguez's plea agreement contained a waiver of appeal\nprovision, which was to be operative provided that he was sentenced\naccording to the agreement's \"terms, conditions, and\nrecommendations.\" As Rodríguez correctly argues, the sentence\nimposed exceeded the sentence recommended in the plea agreement,\nand so he can appeal. See, e.g., United States v. Fernández-\nCabrera, 625 F.3d 48, 51 (1st Cir. 2010). The government does not\nargue otherwise.\n\n\n - 9 -\n\f(3) prejudice, and (4) an outcome that is a miscarriage of justice\n\nor akin to it\" (quoting United States v. Tanco-Pizarro, 892 F.3d\n\n472, 478-79 (1st Cir.), cert. denied 139 S. Ct. 354 (2018))).\n\n We start with Rodríguez's argument about the district\n\ncourt's reference to Rodríguez's arrests that did not lead to\n\nconvictions. We then turn to Rodríguez's arguments about the\n\ndistrict court's allegedly inadequate consideration of the Section\n\n3553(a) factors and the variance from the government's sentencing\n\nrecommendation.\n\n 1. The District Court Did Not Plainly Err in Considering\n Rodríguez's Arrests Not Leading to Convictions as a\n Matter Leading to an Upward Variance\n\n Rodríguez argues that the district court erred in\n\n\"reciting\" Rodríguez's six arrests that did not lead to\n\nconvictions. To the extent he is arguing that the court errs in\n\nmerely reciting an arrest record, he is flatly wrong. See United\n\nStates v. Mercer, 834 F.3d 39, 49–50 (1st Cir. 2016). So, we go\n\nto the particulars.\n\n The government stresses that the district court \"relied\n\non other factors\" beyond arrests \"when it imposed the upward\n\nvariance.\" As to the arrests, the government argues that the four\n\ndrug arrests could be considered because they met the reliability\n\nstandard. That is because they were corroborated by a number of\n\nuncontested facts in the PSR about Rodríguez's drug use. It points\n\n\n\n\n - 10 -\n\fout that one charge was dismissed not \"as a result of the evidence\"\n\nbut based on a Puerto Rico speedy trial rule.\n\n We start with an overview of the law pertinent to the\n\nability of the district court to impose an upward variance. The\n\nstatute itself says that \"[n]o limitation shall be placed on the\n\ninformation concerning the background, character, and conduct of\n\na person convicted of an offense which a court of the United States\n\nmay receive and consider for the purpose of imposing an appropriate\n\nsentence.\" 18 U.S.C. § 3661. We have held that \"[a]t sentencing,\n\na court is not bound by the rules of evidence but, rather, may\n\ntake into account any information that has sufficient indicia of\n\nreliability.\" United States v. Díaz–Arroyo, 797 F.3d 125, 130 n.3\n\n(1st Cir. 2015) (citing United States v. Tardiff, 969 F.2d 1283,\n\n1287 (1st Cir. 1992)). The Guidelines so provide. See U.S.S.G.\n\n§ 6A1.3(a). The \"sentencing court has wide discretion to decide\n\nwhether particular evidence is sufficiently reliable to be used at\n\nsentencing,\" United States v. Cintrón-Echautegui, 604 F.3d 1, 6\n\n(1st Cir. 2010), which includes information contained in a\n\npresentence report, United States v. Cruz, 120 F.3d 1, 2 (1st Cir.\n\n1997) (en banc); see also United States v. Cyr, 337 F.3d 96, 100\n\n(1st Cir. 2003) (\"Generally, a PSR bears sufficient indicia of\n\nreliability to permit the district court to rely on it at\n\nsentencing.\" (quoting United States v. Taylor, 277 F.3d 721, 724\n\n(5th Cir. 2001))).\n\n\n - 11 -\n\f The government cites to our recent case, United States\n\nv. Marrero-Pérez, 914 F.3d 20 (1st Cir. 2019), relying on it in\n\npart and distinguishing it as to the outcome. Rodríguez did not\n\ncite to Marrero-Pérez in briefing, but did at oral argument.\n\n Marrero-Pérez involves an \"upward departure,\" id. at 22,\n\nnot a variance, as here. Citing to a policy statement in the\n\nSentencing Guidelines about departures (a different category of\n\nsentence which was at issue there), see U.S.S.G. § 4A1.3, Marrero-\n\nPérez stated that \"error occurs when a district judge relies on an\n\narrest report, without some greater indicia of reliability that\n\nthe conduct underlying the arrest took place,\" 914 F.3d at 24\n\n(emphasis added).4 This statement was based on Guidelines language\n\nand is consistent with the policy statement, titled \"Departures\n\nBased on Inadequacy of Criminal History Category.\" U.S.S.G.\n\n§ 4A1.3. Marrero-Pérez held, under plain error review, that in\n\nthe context of an upward departure, arrests supported by reliable\n\ninformation that the conduct occurred could be considered, but the\n\narrests at issue there were not so supported, or even explained in\n\nthe PSR or otherwise. 914 F.3d at 24.\n\n\n 4 At oral argument, Rodríguez focused on the phrase\n\"independent proof of conduct\" in Marrero-Pérez, rather than \"some\ngreater indicia of reliability.\" 914 F.3d at 22, 24. The former\nphrase was not meant to proscribe any \"weight\" given to arrests,\nsuch as \"a collection of arrests,\" id., or consideration of conduct\nunderlying arrests. Nor was it meant to create a new rule that\narrests could not be mentioned by a sentencing court. See Mercer,\n834 F.3d at 49–50.\n\n\n - 12 -\n\f We have earlier noted concern with \"accord[ing] any\n\nsignificance to a record of multiple arrests and charges without\n\nconviction unless there is adequate proof of the conduct upon which\n\nthe arrests or charges were predicated.\" United States v. Cortés-\n\nMedina, 819 F.3d 566, 570 (1st Cir. 2016) (emphasis added); see\n\nUnited States v. Rondón-García, 886 F.3d 14, 25-26 (1st Cir. 2018)\n\n(finding no clear error in a district court's reliance on an arrest\n\nrecord for an \"upward departure,\" where the defendant had \"no prior\n\nconvictions\"); United States v. Gallardo-Ortiz, 666 F.3d 808, 815\n\n(1st Cir. 2012) (\"We have cautioned against district courts relying\n\non mere arrests as indicative of a defendant's character to justify\n\nan upward departure from the GSR since a criminal charge alone\n\ndoes not equate with criminal guilt of the charged conduct.\"\n\n(emphasis added)). Reliance on bare arrests -- unexplained in the\n\nPSR or elsewhere in the district court record and \"not buttressed\"\n\nby \"some greater indicia of reliability\" -- can indeed be\n\nproblematic, at least for an upward departure. Marrero-Pérez, 914\n\nF.3d at 22, 24. But as Marrero-Pérez also said, \"a reasonable\n\nperson might in particular circumstances assign some weight to a\n\ncollection of arrests.\" Id. at 22; see id. at 23 (noting that\n\n\"recidivist behavior\" is a \"proper consideration[] at\n\nsentencing\").\n\n It is not wholly clear from the sentencing transcript\n\nwhether the district court relied in part on the arrests, or\n\n\n - 13 -\n\finstead \"merely referred to [the defendant's] dismissed charges in\n\nthe course of relying on certain conduct that took place in\n\nconnection with the dismissed charges.\" Mercer, 834 F.3d at 50.\n\nEven if we assume the district court here relied in part on the\n\nprior illegal drug possession arrests and that Marrero-Pérez\n\nsquarely applies to this situation of an upward variance rather\n\nthan a departure under U.S.S.G. § 4A1.3(a),5 there was no plain\n\nerror.\n\n First and most importantly, other \"indicia of\n\nreliability\" support that Rodríguez engaged in the conduct charged\n\nunderlying the four drug possession arrests that did not lead to\n\n\n 5 Beyond the departure/variance distinction, discussed\ninfra, Marrero-Pérez involved a particular set of facts distinct\nfrom this case. In Marrero-Pérez, the past arrests recounted,\n\"usually involving at worst trivial conduct,\" lacked corroborating\nevidence \"set forth in undisputed portions of the PSR.\" 914 F.3d\nat 22, 24. There, the district court had discussed the defendant's\nalleged \"utter disregard for the law,\" in part based on the\nunsupported arrest record, and listed the exact number of arrests\nand history of warrants. Id. at 22. Further, Marrero-Pérez relied\nin part on prudential concerns about \"still not fully explained\nmaterial submitted ex parte by the probation officer to the\n[district] court concerning certain outstanding warrants.\" Id. at\n25.\n Here, in contrast, there were no ex parte submissions by\nthe probation officer. The arrests mentioned by the district court\nhere did not involve \"trivial conduct.\" Corroborating evidence\nabout consistent drug use was set forth clearly in the PSR and has\nnever been disputed. Further, the district court did not make any\nexplicit comment about Rodríguez's guilt based on arrests, see id.\nat 23, instead mentioning only generally that it was \"taking into\nconsideration that [Rodríguez's] criminal history category is\nunderrepresented.\"\n Despite these distinct facts, the result here is\nconsistent with Marrero-Pérez.\n\n\n - 14 -\n\fconvictions. The PSR -- to which Rodríguez expressly did not\n\nobject -- discussed a range of illegal drug use by Rodríguez,6 as\n\ndid his own sentencing memorandum. As said, Rodríguez stated that\n\nhe began smoking marijuana at the age of twelve, reverted to drug\n\nuse in 2002 after a one-year break following a drug treatment\n\nprogram (completed in order to expunge his 2000 Puerto Rico drug\n\narrest), and smoked marijuana approximately five times per day.\n\nRodríguez tested positive for marijuana on February 27, 2017,\n\nshortly after his arrest in the present case. This covers the\n\ntime period for all of Rodríguez's arrests for drug possession\n\nthat did not lead to convictions (again, in January 2000, January\n\nand February 2009, and October 2010). Rodríguez's sentencing\n\nmemorandum admitted that his \"addiction has escalated [from\n\nmarijuana] to the use of Cocaine and Percocet.\"\n\n This provides \"some greater indicia of reliability,\"\n\nbeyond the mere fact of arrest, \"that the conduct underlying the\n\narrest[s] took place.\" Marrero-Pérez, 914 F.3d at 24. Even\n\nleaving aside the district court's consideration of the Section\n\n3553(a) factors, discussed below, and the fact that these arrests\n\nand charges also went to the history and characteristics of\n\nRodríguez, see United States v. Flores-Machicote, 706 F.3d 16, 21\n\n\n\n\n 6 One of the convictions, the second Texas marijuana\nconviction, was charged as a felony and involved possession of\nabout twenty-six pounds of marijuana.\n\n\n - 15 -\n\f(1st Cir. 2013), the district court did not rely merely on a bare\n\narrest record.\n\n Second and relatedly, we have held that a sentencing\n\ncourt may consider arrests not leading to convictions where\n\n\"[t]here is no reason . . . given [defendant's] failure to contest\n\nthe facts [in the PSR] and the absence of any acquittal, to doubt\n\nthat these acts occurred.\" United States v. Tabares, 951 F.2d\n\n405, 411 (1st Cir. 1991) (Breyer, J.). As said, Rodríguez did not\n\ndispute facts contained in the PSR or explained by the government\n\nat the sentencing hearing. All of Rodríguez's dismissed or\n\nexpunged charges mentioned by the district court were dismissed or\n\nexpunged \"not because of any finding on the merits of the case[s],\n\nbut for other reasons.\" Id. The 2000 charge for drug possession\n\nwas expunged because Rodríguez had completed a diversionary drug\n\ntreatment program. The charges from the two 2009 arrests for\n\nmarijuana possession in Texas were dismissed on petition of the\n\ngovernment due to Rodríguez's conviction on another 2009 marijuana\n\npossession charge. The 2010 New York marijuana charge was\n\nadjourned in contemplation of dismissal, and Rodríguez was\n\narrested the next day on federal bank and wire fraud charges.\n\n As to the Puerto Rico weapons possession arrest, the\n\ngovernment said, and Rodríguez's counsel agreed at the sentencing\n\nhearing, that the charges were dismissed due to the speedy trial\n\n\n\n\n - 16 -\n\frules in Puerto Rico.7 The district court most certainly did not\n\nconsider any arrests which led to acquittals.\n\n Third, even beyond underrepresentation of criminal\n\nhistory, the district court focused on a number of facts about the\n\noffense of conviction and Rodríguez that were clearly relevant to\n\nSection 3553(a) factors and to an upward variance, including: the\n\ntype of weapon involved, an AM-15 \"assault rifle\" (\"nature and\n\ncircumstances of the offense\"); risk of recidivism and commission\n\nof this crime shortly after the end of a supervised release term\n\n(\"protect[ing] the public from further crimes of the defendant\");\n\nand Rodríguez's consistent illegal drug use and lack of steady\n\nemployment (\"history and characteristics of the defendant\"). 18\n\nU.S.C. § 3553(a). All of these provided additional reasonable\n\njustifications for an upward variance. We have affirmed in\n\nnumerous cases upward variances based on district courts'\n\nconsideration of such factors. See, e.g., United States v. Ortiz-\n\nÁlvarez, 921 F.3d 313, 316 (1st Cir. 2019) (involvement of an\n\n\"assault rifle\"); United States v. Bermúdez–Meléndez, 827 F.3d\n\n160, 164 (1st Cir. 2016) (involvement of an \"assault rifle\");\n\nFlores-Machiote, 706 F.3d at 24 (\"likely recidivism\"); United\n\n\n\n\n 7 The record is not clear as to the reason for the\ndismissal of the conjugal threats charge, but the PSR states that\nit was dismissed, and the government stated (without objection)\nthat further records from this arrest had been destroyed due to a\ntimely motion by Rodríguez filed pursuant to Puerto Rico law.\n\n\n - 17 -\n\fStates v. Santini-Santiago, 846 F.3d 487, 491 (1st Cir. 2017)\n\n(\"drug use\"); United States v. Rivera-González, 776 F.3d 45, 50\n\n(1st Cir. 2015) (\"employment record\").\n\n There was no plain error by the district court here.8\n\n 2. This Case Involves a Variance Under 18 U.S.C. § 3553(a),\n Not a \"Departure\" Under U.S.S.G. § 4A1.3\n\n We have explained why there is no plain error here and\n\nthat this case is consistent with Marrero-Pérez. We add that there\n\nis an important structural distinction between this case and\n\nMarrero-Pérez that merits some discussion.\n\n Marrero-Pérez relied substantially on a policy statement\n\nconcerning upward departures, as specifically defined in the\n\nGuidelines. 914 F.3d at 22; see U.S.S.G. § 4A1.3(a); id. § 1B1.1\n\nn.1(F)(2). This policy statement states in part that \"[i]f\n\nreliable information indicates that the defendant's criminal\n\nhistory category substantially under-represents the seriousness of\n\nthe defendant's criminal history or the likelihood that the\n\ndefendant will commit other crimes, an upward departure may be\n\n\n\n\n 8 \"Plain error review requires us to reverse only where a\nlower court's error is clear or obvious in light of the prevailing\nlaw, but 'Cortés-Medina held only that the law on this question\n[consideration of arrests] was unclear.'\" Rondón-García, 886 F.3d\nat 26 (quoting United States v. Delgado-Sánchez, 849 F.3d 1, 13\n(1st Cir. 2017)). So, even (wrongly) reading Marrero-Pérez as\nbroadly as Rodríguez sought at oral argument, the district court's\nreference to the prior arrests would not amount to plain error\nbased on the state of First Circuit law at the time of Rodríguez's\nsentencing.\n\n\n - 18 -\n\fwarranted.\" Id. § 4A1.3(a)(1). More importantly for present\n\npurposes, it states that \"[a] prior arrest record itself shall not\n\nbe considered for purposes of an upward departure under this policy\n\nstatement.\"9 Id. § 4A1.3(a)(3) (emphasis added). The Application\n\nNotes to the Guidelines state that \"Departure\" means, \"for purposes\n\nof § 4A1.3 . . . assignment of a criminal history category other\n\nthan the otherwise applicable criminal history category, in order\n\nto effect a sentence outside the applicable guideline range.\" Id.\n\n§ 1B1.1 n.1(F)(2).\n\n Here, in contrast with Marrero-Pérez, the district court\n\nwas varying upward, not departing, and referred specifically to\n\nits use of the Section 3553(a) factors. There was no assignment\n\nof a higher criminal history category, nor any mention of a\n\ndeparture.\n\n There are significant differences between a departure\n\nand a variance. \"In federal criminal sentencing, the term\n\n'departure' is a term of art.\" United States v. Román-Díaz, 853\n\nF.3d 591, 596 (1st Cir. 2017). As we have stated, quoting the\n\nSupreme Court in part,\n\n [a] 'departure,' as explained by the Supreme\n Court, 'is a term of art under the Guidelines\n\n 9 This policy statement does not purport to address upward\nvariances. And in United States v. Martin, we recognized that\n\"[p]olicy statements issued by the Sentencing Commission . . .\nnormally are not decisive as to what may constitute a permissible\nground for a variant sentence in a given case.\" 520 F.3d 87, 93\n(1st Cir. 2008).\n\n\n - 19 -\n\f and refers only to non-Guidelines sentences\n imposed under the framework set out in the\n Guidelines.' Variant sentences, by contrast,\n . . . result from a court's consideration of\n the statutory sentencing factors enumerated in\n 18 U.S.C. § 3553(a).\n\nUnited States v. Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014)\n\n(internal citations omitted) (quoting Irizarry v. United States,\n\n553 U.S. 708, 714 (2008)). Other circuits have recognized this\n\ndeparture/variance distinction. See, e.g., United States v.\n\nRodriguez, 855 F.3d 526, 532 n.7 (3d Cir. 2017) (\"A 'departure' is\n\ndifferent from a 'variance.'\"); United States v. Hernandez, 435 F.\n\nApp'x 873, 877 (11th Cir. 2011) (unpub.) (\"On the record as a\n\nwhole, we conclude the district court imposed a discretionary\n\n . . . upward variance based on the § 3553(a) factors, and not an\n\nupward departure based on U.S.S.G. § 4A1.3(a).\"); United States v.\n\nHerrera-Zuniga, 571 F.3d 568, 586 (6th Cir. 2009) (\"This Court has\n\nrecognized the distinction between sentencing departures under\n\nU.S.S.G. § 4A1.3 and variances under 18 U.S.C. § 3553(a).\");\n\nUnited States v. Solis-Bermudez, 501 F.3d 882, 884 (8th Cir. 2007)\n\n(\"[W]e have attempted to carefully distinguish between sentencing\n\ndepartures, which are provided for in . . . USSG § 4A1.3, and\n\nsentencing variances, which are . . . based on the factors\n\nenumerated in 18 U.S.C. § 3553(a).\"); United States v. Mejia-\n\nHuerta, 480 F.3d 713, 721 (5th Cir. 2007) (\"[A] sentencing court\n\nmay impose a non-Guidelines sentence, i.e., a 'variance', but not\n\n\n\n - 20 -\n\fa 'departure,' if it calculates the proper sentencing range and\n\nreferences the broad array of factors set forth in § 3553(a).\").\n\nImportantly, the policy statement, as to the \"arrest record\n\nitself,\" does not apply to a variance. U.S.S.G. § 4A1.3(a).\n\n The variance here resulted, in part, from the district\n\ncourt's determination that there was underrepresentation of the\n\ncriminal history (perhaps due to prior arrests and the conduct\n\nunderlying those arrests, perhaps due to facts underlying the prior\n\nconvictions). It is clear that, \"[a]s part of the [18 U.S.C.\n\n§ 3553(a)(1)] inquiry, a sentencing judge may consider whether a\n\ndefendant's criminal history score substantially underrepresents\n\nthe gravity of his past conduct.\" Flores-Machicote, 706 F.3d at\n\n21. Indeed, \"the very same factors that prompted the[] comments\n\n[on underrepresentation] also fit well within the scope of\n\n§ 3553(a): . . . the drug use and prior arrest[s] bore on 'the\n\ncharacteristics of the defendant.'\" Santini-Santiago, 846 F.3d at\n\n491 (quoting 18 U.S.C. § 3553(a)(1)). So, underrepresentation\n\n\"might also relate to a departure, but a sentencing court may\n\n'echo' a departure consideration as one factor in its analysis,\n\nwhile still imposing a variance.\" United States v. Acevedo-López,\n\n873 F.3d 330, 342 (1st Cir. 2017) (quoting Aponte-Vellón, 754 F.3d\n\nat 93). And like in Mercer, because the conduct -- here, arrests\n\nfor illegal drug use -- underlying dismissed or expunged charges\n\n\"was set forth in undisputed portions of the PSR, the District\n\n\n - 21 -\n\fCourt was entitled to rely on that conduct when sentencing [the\n\ndefendant],\" 834 F.3d at 50, even assuming the district court\n\nindeed did so.10\n\n In Marrero-Pérez, we did not purport to restrict\n\ndistrict courts' use of the broad Section 3553(a) factors for a\n\nvariance. Marrero-Pérez also did not purport to overrule First\n\nCircuit cases such as Martin, Tabares, and Mercer (respectively,\n\nrecognizing a sentencing court's discretion to disagree with\n\npolicy statements in the Guidelines in imposing a variant sentence;\n\naffirming the use by a sentencing court of arrests not leading to\n\nconvictions where the defendant did not contest the conduct and\n\nwhere there were no acquittals; and recognizing the district\n\ncourt's entitlement to consider \"conduct that took place in\n\nconnection with the dismissed charges\" that was \"set forth in\n\nundisputed portions of the PSR\"). See, e.g., United States v.\n\nViloria-Sepulveda, 921 F.3d 5, 9 (1st Cir. 2019) (citing Martin\n\npositively); United States v. Vázquez, 724 F.3d 15, 30 n.12 (1st\n\nCir. 2013) (citing Tabares positively). Nor could it have done\n\nso.\n\n\n\n\n 10 We do not suggest that only a bare arrest record, without\nmore reliable explanation of or support for the underlying conduct\nand without consideration of the circumstances of disposition,\nwould be a valid basis for an upward variance under Section\n3553(a). That issue is not presented on the record before us here.\n\n\n - 22 -\n\f 3. The District Court Adequately Considered the Section\n 3553(a) Factors\n\n Next, Rodríguez argues that the district court did not\n\nadequately consider the 18 U.S.C. § 3553(a) factors, and that\n\n\"[n]othing in the record specifically refers to any sentencing\n\nfactor.\" He is wrong.\n\n \"Failure to follow § 3553 results in prejudice\n\nwarranting reversal for plain error if the defendant shows a\n\nreasonable probability that but for an obvious error the court\n\nwould have imposed a more favorable sentence.\" United States v.\n\nOrtíz-Mercado, 919 F.3d 686, 690 (1st Cir. 2019).\n\n The district court explicitly stated that it considered\n\nthe Section 3553(a) sentencing factors, and that statement is\n\n\"entitled to significant weight.\" United States v. Calderón-\n\nLozano, 912 F.3d 644, 648 (1st Cir. 2019) (quoting United States\n\nv. Arroyo-Maldonado, 791 F.3d 193, 199 (1st Cir. 2015)). The\n\ndistrict court's explanation at the sentencing hearing, as we have\n\nrecounted, demonstrated ample consideration of Rodríguez's\n\n\"history and characteristics\" as well as the \"nature and\n\ncircumstances of the offense,\" 18 U.S.C. § 3553(a)(1), including\n\nRodríguez's education, and history of drug use, as well as \"the\n\nnature of the weapon involved, an assault rifle, which accepts\n\n5.56 millimeter military ammunition.\" Further, the district court\n\nstated that Rodríguez's firearm offense came \"less than five months\n\n\n\n - 23 -\n\fafter having completed his supervised release term\" for his federal\n\nwire and bank fraud offense. Indeed, both the attempted sale of\n\nan assault rifle and the timing of the offense are also surely\n\nrelevant to Rodríguez's likelihood of recidivism11 and the threat\n\nhe posed to the safety of the community.\n\n As we have said, \"[f]ailure to follow § 3553 results in\n\nprejudice warranting reversal for plain error if the defendant\n\nshows a reasonable probability that but for an obvious error the\n\ncourt would have imposed a more favorable sentence.\" Ortíz-\n\nMercado, 919 F.3d at 690. Rodríguez never argued, much less\n\ndemonstrated, that he was so prejudiced.\n\n 4. There Was No Plain Error in the District Court Varying\n from the Government's Sentencing Recommendation\n\n Rodríguez argues in passing that the district court\n\nshould have followed the government's sentencing recommendation,\n\nbecause \"the government ha[d] all the evidence . . . to consider\n\nan adequate plea agreement.\" This argument is waived for lack of\n\ndeveloped argumentation. See United States v. Zannino, 895 F.2d\n\n1, 17 (1st Cir. 1990).\n\n In any event, a Rule 11(c)(1)(b) plea does not bind a\n\ndistrict court to the recommendation in a plea agreement. Fed. R.\n\n\n 11 In discussing \"protect[ing] the public from further\ncrimes\" and Rodríguez's \"recidivism,\" the district court made no\nfurther reference to any of the arrests not leading to convictions,\nand so may well have been referring just to Rodríguez's multiple\ndrug convictions and bank and wire fraud conviction.\n\n\n - 24 -\n\fCrim. P. 11(c)(1)(b); see United States v. Ubiles-Rosario, 867\n\nF.3d 277, 294 (1st Cir. 2017) (\"[T]he district court was not bound\n\nby the parties' recommendations.\"); United States v. Garcia-Pupo,\n\n845 F.2d 8, 10 (1st Cir. 1988) (\"[J]udges cannot be bound by a\n\nprosecutor's sentencing recommendation.\"). This was made clear to\n\nRodríguez by a magistrate judge at the change-of-plea hearing,\n\nheld about two months before the sentencing hearing. The choice\n\nby the district court of a sentence other than one recommended by\n\nthe parties is not, in itself, error.\n\nB. Substantive Reasonableness\n\n The standard of review for challenges to substantive\n\nreasonableness raised for the first time on appeal, between abuse\n\nof discretion and plain error, remains an open question in this\n\ncircuit. See Ruiz-Huertas, 792 F.3d at 228. This question can be\n\nbypassed here because Rodríguez does not prevail even assuming, in\n\nhis favor, that abuse of discretion applies.\n\n To some extent blurring substantive and procedural\n\nreasonableness, Rodríguez argues that the district court failed to\n\nconsider potentially mitigating factors (though he does not\n\nclearly delineate what these factors were) and failed to consider\n\nreasons for the government's request of twenty-one months. This\n\nmeans, he argues, that the district court failed \"to weigh the\n\nSection 3353(a) factors and various mitigating circumstances\n\n\n\n\n - 25 -\n\fproperly.\" He also asserts that the sentence was longer than\n\nnecessary for the purposes of sentencing.\n\n There is no \"requirement that a district court afford\n\neach of the section 3553(a) factors equal prominence,\" as \"[t]he\n\nrelative weight of each factor will vary with the idiosyncratic\n\ncircumstances of each case.\" United States v. Dixon, 449 F.3d\n\n194, 205 (1st Cir. 2006). Rodríguez does not even state what are\n\nthe \"various mitigating circumstances\" that the district court\n\nallegedly ignored, so his argument fails on waiver. Regardless,\n\nthat Rodríguez disagrees with how the court weighed the factors\n\n\"does not make the sentence unreasonable.\" Clogston, 662 F.3d at\n\n593.\n\n Finally, as to Rodríguez's general contention that\n\n\"[t]he sentence imposed was longer than necessary to comply with\n\nthe purposes of sentencing,\" this argument also fails. The\n\ndistrict court offered a plausible rationale for the upward\n\nvariance based substantially on Section 3553(a) factors. The\n\nsentence imposed, thirty-six months' imprisonment, was \"within the\n\nwide universe of reasonable sentencing outcomes\" and that ends the\n\nmatter. Ruiz-Huertas, 792 F.3d at 229.\n\n III.\n\n Affirmed.\n\n\n\n\n - 26 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES, Appellee, v. José Francisco RODRÍGUEZ-REYES, Defendant, Appellant.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1217\\n\\n UNITED STATES,\\n\\n Appellee,\\n\\n v.\\n\\n JOSÉ FRANCISCO RODRÍGUEZ-REYES,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Francisco A. Besosa, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Selya, and Lynch,\\n Circuit Judges.\\n\\n\\n Luis A. Guzmán Dupont for appellant.\\n David C. Bornstein, Assistant United States Attorney, with\\nwhom Mariana E. Bauzá-Almonte, Assistant United States Attorney,\\nChief, Appellate Division, Thomas F. Klumper, Assistant United\\nStates Attorney, Senior Appellate Counsel, and Rosa Emilia\\nRodríguez-Vélez, United States Attorney, were on brief, for\\nappellee.\\n\\n\\n June 5, 2019\\n\\f LYNCH, Circuit Judge. This is a challenge to the\\n\\nimposition of an upwardly variant sentence of thirty-six months'\\n\\nimprisonment, following a guilty plea by José Francisco Rodríguez-\\n\\nReyes (Rodríguez) to a charge of being a felon in possession of a\\n\\nfirearm, in violation of 18 U.S.C. § 922(g)(1). The firearm was\\n\\nan AM-15 multi-caliber assault rifle which accepted 5.56\\n\\nmillimeter military-style ammunition. Rodríguez tried\\n\\nunsuccessfully to escape arrest. Rodríguez did not challenge\\n\\neither the procedural or substantive reasonableness of the\\n\\nsentence in the district court.\\n\\n As to procedural reasonableness, Rodríguez argues on\\n\\nappeal that the district court: (1) erred in the course of\\n\\nsentencing by discussing Rodríguez's arrests that did not result\\n\\nin convictions; (2) failed to consider adequately the 18 U.S.C.\\n\\n§ 3553(a) factors; and (3) erred in varying upward from the\\n\\ngovernment's sentencing recommendation. As to substantive\\n\\nreasonableness, Rodríguez argues that (1) the district court did\\n\\nnot sufficiently consider unspecified mitigating factors and the\\n\\nreasons for the government's sentencing recommendation, and (2)\\n\\nthe sentence imposed was longer than necessary.\\n\\n Finding no reversible error, we affirm Rodríguez's\\n\\nsentence.\\n\\n\\n\\n\\n - 2 -\\n\\f I.\\n\\n \\\"When a sentencing appeal follows a guilty plea, 'we\\n\\nglean the relevant facts from the change-of-plea colloquy, the\\n\\nunchallenged portions of the presentence investigation report\\n\\n. . . and the record of the disposition hearing.'\\\" United States\\n\\nv. Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010) (quoting United\\n\\nStates v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009)).\\n\\nA. Facts of the Offense\\n\\n On February 23, 2017, officers from the Puerto Rico\\n\\nPolice Department (PRPD) received information about a future\\n\\nfirearm transaction, including the location, date, time, and\\n\\ndescription of vehicles likely to be involved. PRPD officers,\\n\\nalong with agents from the federal Department of Homeland Security\\n\\n(DHS), during surveillance observed Rodríguez and two other men\\n\\nstanding near the rear hatch of a Jeep Cherokee looking at a rifle.\\n\\nRodríguez drove away in the Jeep and the police officers and agents\\n\\nfollowed by car; Rodríguez then parked and entered the car of\\n\\nanother man involved in the attempted firearm transaction. The\\n\\nmen noticed the police officers and agents and fled by vehicle.\\n\\nTheir vehicle eventually crashed, and the officers detained the\\n\\ntwo men. After Rodríguez and the other man consented to a search\\n\\nof the vehicles, the officers and agents found an AM-15 multi-\\n\\ncaliber rifle, which Rodríguez admitted to purchasing online and\\n\\nwas planning to sell for $2,000.\\n\\n\\n - 3 -\\n\\fB. Procedural History\\n\\n On March 8, 2017, a federal grand jury in Puerto Rico\\n\\nindicted Rodríguez on one count of being a felon in possession of\\n\\na firearm and one count of being an unlawful drug user in\\n\\npossession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)\\n\\nand (3), as well as aiding and abetting a co-defendant in the same\\n\\ntwo counts, in violation of 18 U.S.C. § 2. Rodríguez had been\\n\\nconvicted of prior felony charges. On May 11, 2017, Rodríguez\\n\\npleaded guilty to the one count of being a felon in possession of\\n\\na firearm, and the plea agreement provided for a total offense\\n\\nlevel (TOL) of twelve.\\n\\n The Presentence Investigation Report (PSR) followed the\\n\\nparties' calculations from the plea agreement, with a TOL of twelve\\n\\nresulting from a base level of fourteen and the removal of two\\n\\nlevels for acceptance of responsibility. See U.S.S.G. § 3E1.1(a).\\n\\nRodríguez had three prior convictions: two state illegal drug\\n\\npossession convictions in Texas (one for marijuana, one for both\\n\\nmarijuana and cocaine), and a federal conviction for conspiracy to\\n\\ncommit mail fraud and bank fraud in Puerto Rico. This gave\\n\\nRodríguez a criminal history category (CHC) of III. A TOL of\\n\\ntwelve and a CHC of III led to a guideline imprisonment range of\\n\\nfifteen to twenty-one months.\\n\\n The PSR also listed, as required, six arrests which did\\n\\nnot lead to convictions (but also did not lead to acquittals),\\n\\n\\n - 4 -\\n\\ffour of which related to Rodríguez's illegal drug possession.1 See\\n\\nFed. R. Crim. P. 32(d)(2)(A)(i) (requiring that the PSR contain\\n\\ninformation on \\\"the defendant's history and characteristics,\\n\\nincluding . . . any prior criminal record\\\"). The drug arrests are\\n\\ndiscussed below. The PSR also stated that \\\"[i]n this case a\\n\\nvariance [may be] considered since the defendant has a high risk\\n\\nof recidivism.\\\" That risk was evidenced by, inter alia,\\n\\nRodríguez's prior criminal history (which took three pages of the\\n\\nPSR to recount), the fact that the offense of conviction took place\\n\\nwithin five months of his completion of a supervised release term\\n\\nfrom his federal mail and bank fraud imprisonment, and a pending\\n\\narrest warrant against him in El Paso, Texas for illegal possession\\n\\nof marijuana. By the time of completion of the PSR, the pending\\n\\nTexas \\\"charge was dismissed\\\" because Rodríguez \\\"was convicted in\\n\\nanother case.\\\"\\n\\n The PSR also described a history of illegal drug use by\\n\\nRodríguez spanning more than twenty-five years. Rodríguez stated\\n\\nthat he began smoking marijuana at the age of twelve and smoked\\n\\nmarijuana approximately five times per day, having returned to\\n\\ndrug use in 2002 after a one-year break following a drug treatment\\n\\n\\n\\n\\n 1 These arrests were, in chronological order: a 2000\\nPuerto Rico controlled substances possession arrest; a 2000 Puerto\\nRico unlicensed firearm possession arrest; a 2005 Puerto Rico\\n\\\"conjugal threats\\\" arrest; two 2009 Texas marijuana possession\\narrests; and a 2010 New York marijuana possession arrest.\\n\\n\\n - 5 -\\n\\fprogram (completed pursuant to a 2000 Puerto Rico drug charge).\\n\\nIndeed, Rodríguez tested positive for marijuana on February 27,\\n\\n2017, shortly after his arrest in the present case. He also stated\\n\\nthat he began using cocaine and Percocet when he was twenty-six,\\n\\nin 2004 or 2005. The PSR also stated that Rodríguez and his then-\\n\\nwife separated in 2005 \\\"[a]s a result\\\" of Rodríguez's \\\"mari[j]uana\\n\\naddiction.\\\"\\n\\n In his sentencing memorandum, Rodríguez did not object\\n\\nto the PSR or any facts within the PSR, including the facts as to\\n\\nthe disposition of his arrests and his drug use (he did say that\\n\\nsome of his debt had been paid off). (\\\"The Pre-Sentence Report\\n\\nwas discussed with [Rodríguez] and there are no objections.\\\") His\\n\\nsentencing memorandum acknowledged that Rodríguez \\\"ha[d] been\\n\\nusing Mari[j]uana since age 12 on a daily basis\\\" and his drug use\\n\\n\\\"ha[d] escalated to the use of Cocaine and Percocet.\\\"\\n\\nC. Sentencing Hearing\\n\\n In his sentencing memorandum and at the sentencing\\n\\nhearing, Rodríguez requested a sentence of fifteen months'\\n\\nimprisonment, at the bottom of the guidelines range. Rodríguez's\\n\\ncounsel expressly referred to the sentencing memorandum at the\\n\\nhearing. He did not dispute the PSR's calculations. At the\\n\\nsentencing hearing, the government requested a sentence of twenty-\\n\\none months' imprisonment, at the top of the guidelines range. It\\n\\nexplained the disposition of Rodríguez's arrests that had not led\\n\\n\\n - 6 -\\n\\fto convictions, and Rodríguez's counsel stated that he had no\\n\\nobjections to the government's explanation.\\n\\n The district court accepted the PSR's calculations of\\n\\nthe TOL, the CHC, and the guidelines range. The district court\\n\\nthen listed Rodríguez's prior arrests that did not lead to\\n\\nconvictions, accurately describing the PSR and the government's\\n\\nexplanation of the disposition of these arrests.\\n\\n Explaining why it was following the recommendation of\\n\\nthe probation officer and imposing an upwardly variant sentence\\n\\n(as recommended by the probation officer), the district court gave\\n\\na number of reasons and justifications. To start, it stated that\\n\\n\\\"neither [side's] sentence recommendation reflects the seriousness\\n\\nof the offense, promotes respect for the law, protects the public\\n\\nfrom further crimes by [Rodríguez], or addresses the issues of\\n\\ndeterrence and punishment.\\\" These statements track closely the\\n\\nsentencing factors laid out at 18 U.S.C. § 3553(a)(2)(A), (B) and\\n\\n(C).2 The district court stated that it was also \\\"taking into\\n\\nconsideration that [Rodríguez's] criminal history category is\\n\\nunderrepresented.\\\"\\n\\n\\n\\n\\n 2 In turn: \\\"(A) to reflect the seriousness of the offense,\\nto promote respect for the law, and to provide just punishment for\\nthe offense; (B) to afford adequate deterrence to criminal\\nconduct; (C) to protect the public from further crimes of the\\ndefendant . . . .\\\" 18 U.S.C. § 3553(a)(2).\\n\\n\\n - 7 -\\n\\f The district court noted Rodríguez's \\\"encounters with\\n\\nthe law since he was 21 years old,\\\" as well as Rodríguez's\\n\\n\\\"recidivism, his drug use history, [and] his lack of steady\\n\\nemployment.\\\" The drug use described was that noted earlier, as\\n\\nwell as Rodríguez's positive test for marijuana on the date of his\\n\\narrest for the offense of conviction. The district court also\\n\\nstated that the arrest for the present firearm offense came \\\"less\\n\\nthan five months after having completed his supervised release\\n\\nterm\\\" for his federal wire and bank fraud conviction. The district\\n\\ncourt further stated that it was \\\"taking into consideration the\\n\\nnature of the weapon involved, an assault rifle, which accepts\\n\\n5.56 millimeter military ammunition.\\\"\\n\\n After describing these reasons for the variance, the\\n\\ndistrict court then imposed an upwardly variant sentence of thirty-\\n\\nsix months' imprisonment. That variant sentence is well under the\\n\\nstatutory maximum of 120 months. See 18 U.S.C. § 924(a)(2). At\\n\\nthe sentencing hearing, Rodríguez did not object to the sentence\\n\\nor challenge its substantive or procedural reasonableness. As\\n\\nRodríguez requested, the court recommended that he be placed in an\\n\\ninstitution in Florida.\\n\\n Rodríguez timely appealed.\\n\\n\\n\\n\\n - 8 -\\n\\f II.\\n\\n \\\"In sentencing appeals, appellate review is\\n\\nbifurcated.\\\"3 United States v. Ruiz-Huertas, 792 F.3d 223, 226\\n\\n(1st Cir. 2015). We first consider whether the sentence is\\n\\nprocedurally reasonable, and then consider whether it is\\n\\nsubstantively reasonable. E.g., United States v. Clogston, 662\\n\\nF.3d 588, 590 (1st Cir. 2011).\\n\\nA. Procedural Reasonableness\\n\\n Because Rodríguez did not raise any procedural\\n\\nobjections to his sentence at the district court, as he\\n\\nacknowledges, this court's review is for plain error. United\\n\\nStates v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017). Plain\\n\\nerror requires \\\"four showings: (1) that an error occurred (2) which\\n\\nwas clear or obvious and which not only (3) affected the\\n\\ndefendant's substantial rights, but also (4) seriously impaired\\n\\nthe fairness, integrity, or public reputation of judicial\\n\\nproceedings.\\\" United States v. Duarte, 246 F.3d 56, 60 (1st Cir.\\n\\n2001); see also United States v. Romero, 906 F.3d 196, 205 (1st\\n\\nCir. 2018) (requiring showings of \\\"(1) error, (2) plainness,\\n\\n\\n 3 Rodríguez's plea agreement contained a waiver of appeal\\nprovision, which was to be operative provided that he was sentenced\\naccording to the agreement's \\\"terms, conditions, and\\nrecommendations.\\\" As Rodríguez correctly argues, the sentence\\nimposed exceeded the sentence recommended in the plea agreement,\\nand so he can appeal. See, e.g., United States v. Fernández-\\nCabrera, 625 F.3d 48, 51 (1st Cir. 2010). The government does not\\nargue otherwise.\\n\\n\\n - 9 -\\n\\f(3) prejudice, and (4) an outcome that is a miscarriage of justice\\n\\nor akin to it\\\" (quoting United States v. Tanco-Pizarro, 892 F.3d\\n\\n472, 478-79 (1st Cir.), cert. denied 139 S. Ct. 354 (2018))).\\n\\n We start with Rodríguez's argument about the district\\n\\ncourt's reference to Rodríguez's arrests that did not lead to\\n\\nconvictions. We then turn to Rodríguez's arguments about the\\n\\ndistrict court's allegedly inadequate consideration of the Section\\n\\n3553(a) factors and the variance from the government's sentencing\\n\\nrecommendation.\\n\\n 1. The District Court Did Not Plainly Err in Considering\\n Rodríguez's Arrests Not Leading to Convictions as a\\n Matter Leading to an Upward Variance\\n\\n Rodríguez argues that the district court erred in\\n\\n\\\"reciting\\\" Rodríguez's six arrests that did not lead to\\n\\nconvictions. To the extent he is arguing that the court errs in\\n\\nmerely reciting an arrest record, he is flatly wrong. See United\\n\\nStates v. Mercer, 834 F.3d 39, 49–50 (1st Cir. 2016). So, we go\\n\\nto the particulars.\\n\\n The government stresses that the district court \\\"relied\\n\\non other factors\\\" beyond arrests \\\"when it imposed the upward\\n\\nvariance.\\\" As to the arrests, the government argues that the four\\n\\ndrug arrests could be considered because they met the reliability\\n\\nstandard. That is because they were corroborated by a number of\\n\\nuncontested facts in the PSR about Rodríguez's drug use. It points\\n\\n\\n\\n\\n - 10 -\\n\\fout that one charge was dismissed not \\\"as a result of the evidence\\\"\\n\\nbut based on a Puerto Rico speedy trial rule.\\n\\n We start with an overview of the law pertinent to the\\n\\nability of the district court to impose an upward variance. The\\n\\nstatute itself says that \\\"[n]o limitation shall be placed on the\\n\\ninformation concerning the background, character, and conduct of\\n\\na person convicted of an offense which a court of the United States\\n\\nmay receive and consider for the purpose of imposing an appropriate\\n\\nsentence.\\\" 18 U.S.C. § 3661. We have held that \\\"[a]t sentencing,\\n\\na court is not bound by the rules of evidence but, rather, may\\n\\ntake into account any information that has sufficient indicia of\\n\\nreliability.\\\" United States v. Díaz–Arroyo, 797 F.3d 125, 130 n.3\\n\\n(1st Cir. 2015) (citing United States v. Tardiff, 969 F.2d 1283,\\n\\n1287 (1st Cir. 1992)). The Guidelines so provide. See U.S.S.G.\\n\\n§ 6A1.3(a). The \\\"sentencing court has wide discretion to decide\\n\\nwhether particular evidence is sufficiently reliable to be used at\\n\\nsentencing,\\\" United States v. Cintrón-Echautegui, 604 F.3d 1, 6\\n\\n(1st Cir. 2010), which includes information contained in a\\n\\npresentence report, United States v. Cruz, 120 F.3d 1, 2 (1st Cir.\\n\\n1997) (en banc); see also United States v. Cyr, 337 F.3d 96, 100\\n\\n(1st Cir. 2003) (\\\"Generally, a PSR bears sufficient indicia of\\n\\nreliability to permit the district court to rely on it at\\n\\nsentencing.\\\" (quoting United States v. Taylor, 277 F.3d 721, 724\\n\\n(5th Cir. 2001))).\\n\\n\\n - 11 -\\n\\f The government cites to our recent case, United States\\n\\nv. Marrero-Pérez, 914 F.3d 20 (1st Cir. 2019), relying on it in\\n\\npart and distinguishing it as to the outcome. Rodríguez did not\\n\\ncite to Marrero-Pérez in briefing, but did at oral argument.\\n\\n Marrero-Pérez involves an \\\"upward departure,\\\" id. at 22,\\n\\nnot a variance, as here. Citing to a policy statement in the\\n\\nSentencing Guidelines about departures (a different category of\\n\\nsentence which was at issue there), see U.S.S.G. § 4A1.3, Marrero-\\n\\nPérez stated that \\\"error occurs when a district judge relies on an\\n\\narrest report, without some greater indicia of reliability that\\n\\nthe conduct underlying the arrest took place,\\\" 914 F.3d at 24\\n\\n(emphasis added).4 This statement was based on Guidelines language\\n\\nand is consistent with the policy statement, titled \\\"Departures\\n\\nBased on Inadequacy of Criminal History Category.\\\" U.S.S.G.\\n\\n§ 4A1.3. Marrero-Pérez held, under plain error review, that in\\n\\nthe context of an upward departure, arrests supported by reliable\\n\\ninformation that the conduct occurred could be considered, but the\\n\\narrests at issue there were not so supported, or even explained in\\n\\nthe PSR or otherwise. 914 F.3d at 24.\\n\\n\\n 4 At oral argument, Rodríguez focused on the phrase\\n\\\"independent proof of conduct\\\" in Marrero-Pérez, rather than \\\"some\\ngreater indicia of reliability.\\\" 914 F.3d at 22, 24. The former\\nphrase was not meant to proscribe any \\\"weight\\\" given to arrests,\\nsuch as \\\"a collection of arrests,\\\" id., or consideration of conduct\\nunderlying arrests. Nor was it meant to create a new rule that\\narrests could not be mentioned by a sentencing court. See Mercer,\\n834 F.3d at 49–50.\\n\\n\\n - 12 -\\n\\f We have earlier noted concern with \\\"accord[ing] any\\n\\nsignificance to a record of multiple arrests and charges without\\n\\nconviction unless there is adequate proof of the conduct upon which\\n\\nthe arrests or charges were predicated.\\\" United States v. Cortés-\\n\\nMedina, 819 F.3d 566, 570 (1st Cir. 2016) (emphasis added); see\\n\\nUnited States v. Rondón-García, 886 F.3d 14, 25-26 (1st Cir. 2018)\\n\\n(finding no clear error in a district court's reliance on an arrest\\n\\nrecord for an \\\"upward departure,\\\" where the defendant had \\\"no prior\\n\\nconvictions\\\"); United States v. Gallardo-Ortiz, 666 F.3d 808, 815\\n\\n(1st Cir. 2012) (\\\"We have cautioned against district courts relying\\n\\non mere arrests as indicative of a defendant's character to justify\\n\\nan upward departure from the GSR since a criminal charge alone\\n\\ndoes not equate with criminal guilt of the charged conduct.\\\"\\n\\n(emphasis added)). Reliance on bare arrests -- unexplained in the\\n\\nPSR or elsewhere in the district court record and \\\"not buttressed\\\"\\n\\nby \\\"some greater indicia of reliability\\\" -- can indeed be\\n\\nproblematic, at least for an upward departure. Marrero-Pérez, 914\\n\\nF.3d at 22, 24. But as Marrero-Pérez also said, \\\"a reasonable\\n\\nperson might in particular circumstances assign some weight to a\\n\\ncollection of arrests.\\\" Id. at 22; see id. at 23 (noting that\\n\\n\\\"recidivist behavior\\\" is a \\\"proper consideration[] at\\n\\nsentencing\\\").\\n\\n It is not wholly clear from the sentencing transcript\\n\\nwhether the district court relied in part on the arrests, or\\n\\n\\n - 13 -\\n\\finstead \\\"merely referred to [the defendant's] dismissed charges in\\n\\nthe course of relying on certain conduct that took place in\\n\\nconnection with the dismissed charges.\\\" Mercer, 834 F.3d at 50.\\n\\nEven if we assume the district court here relied in part on the\\n\\nprior illegal drug possession arrests and that Marrero-Pérez\\n\\nsquarely applies to this situation of an upward variance rather\\n\\nthan a departure under U.S.S.G. § 4A1.3(a),5 there was no plain\\n\\nerror.\\n\\n First and most importantly, other \\\"indicia of\\n\\nreliability\\\" support that Rodríguez engaged in the conduct charged\\n\\nunderlying the four drug possession arrests that did not lead to\\n\\n\\n 5 Beyond the departure/variance distinction, discussed\\ninfra, Marrero-Pérez involved a particular set of facts distinct\\nfrom this case. In Marrero-Pérez, the past arrests recounted,\\n\\\"usually involving at worst trivial conduct,\\\" lacked corroborating\\nevidence \\\"set forth in undisputed portions of the PSR.\\\" 914 F.3d\\nat 22, 24. There, the district court had discussed the defendant's\\nalleged \\\"utter disregard for the law,\\\" in part based on the\\nunsupported arrest record, and listed the exact number of arrests\\nand history of warrants. Id. at 22. Further, Marrero-Pérez relied\\nin part on prudential concerns about \\\"still not fully explained\\nmaterial submitted ex parte by the probation officer to the\\n[district] court concerning certain outstanding warrants.\\\" Id. at\\n25.\\n Here, in contrast, there were no ex parte submissions by\\nthe probation officer. The arrests mentioned by the district court\\nhere did not involve \\\"trivial conduct.\\\" Corroborating evidence\\nabout consistent drug use was set forth clearly in the PSR and has\\nnever been disputed. Further, the district court did not make any\\nexplicit comment about Rodríguez's guilt based on arrests, see id.\\nat 23, instead mentioning only generally that it was \\\"taking into\\nconsideration that [Rodríguez's] criminal history category is\\nunderrepresented.\\\"\\n Despite these distinct facts, the result here is\\nconsistent with Marrero-Pérez.\\n\\n\\n - 14 -\\n\\fconvictions. The PSR -- to which Rodríguez expressly did not\\n\\nobject -- discussed a range of illegal drug use by Rodríguez,6 as\\n\\ndid his own sentencing memorandum. As said, Rodríguez stated that\\n\\nhe began smoking marijuana at the age of twelve, reverted to drug\\n\\nuse in 2002 after a one-year break following a drug treatment\\n\\nprogram (completed in order to expunge his 2000 Puerto Rico drug\\n\\narrest), and smoked marijuana approximately five times per day.\\n\\nRodríguez tested positive for marijuana on February 27, 2017,\\n\\nshortly after his arrest in the present case. This covers the\\n\\ntime period for all of Rodríguez's arrests for drug possession\\n\\nthat did not lead to convictions (again, in January 2000, January\\n\\nand February 2009, and October 2010). Rodríguez's sentencing\\n\\nmemorandum admitted that his \\\"addiction has escalated [from\\n\\nmarijuana] to the use of Cocaine and Percocet.\\\"\\n\\n This provides \\\"some greater indicia of reliability,\\\"\\n\\nbeyond the mere fact of arrest, \\\"that the conduct underlying the\\n\\narrest[s] took place.\\\" Marrero-Pérez, 914 F.3d at 24. Even\\n\\nleaving aside the district court's consideration of the Section\\n\\n3553(a) factors, discussed below, and the fact that these arrests\\n\\nand charges also went to the history and characteristics of\\n\\nRodríguez, see United States v. Flores-Machicote, 706 F.3d 16, 21\\n\\n\\n\\n\\n 6 One of the convictions, the second Texas marijuana\\nconviction, was charged as a felony and involved possession of\\nabout twenty-six pounds of marijuana.\\n\\n\\n - 15 -\\n\\f(1st Cir. 2013), the district court did not rely merely on a bare\\n\\narrest record.\\n\\n Second and relatedly, we have held that a sentencing\\n\\ncourt may consider arrests not leading to convictions where\\n\\n\\\"[t]here is no reason . . . given [defendant's] failure to contest\\n\\nthe facts [in the PSR] and the absence of any acquittal, to doubt\\n\\nthat these acts occurred.\\\" United States v. Tabares, 951 F.2d\\n\\n405, 411 (1st Cir. 1991) (Breyer, J.). As said, Rodríguez did not\\n\\ndispute facts contained in the PSR or explained by the government\\n\\nat the sentencing hearing. All of Rodríguez's dismissed or\\n\\nexpunged charges mentioned by the district court were dismissed or\\n\\nexpunged \\\"not because of any finding on the merits of the case[s],\\n\\nbut for other reasons.\\\" Id. The 2000 charge for drug possession\\n\\nwas expunged because Rodríguez had completed a diversionary drug\\n\\ntreatment program. The charges from the two 2009 arrests for\\n\\nmarijuana possession in Texas were dismissed on petition of the\\n\\ngovernment due to Rodríguez's conviction on another 2009 marijuana\\n\\npossession charge. The 2010 New York marijuana charge was\\n\\nadjourned in contemplation of dismissal, and Rodríguez was\\n\\narrested the next day on federal bank and wire fraud charges.\\n\\n As to the Puerto Rico weapons possession arrest, the\\n\\ngovernment said, and Rodríguez's counsel agreed at the sentencing\\n\\nhearing, that the charges were dismissed due to the speedy trial\\n\\n\\n\\n\\n - 16 -\\n\\frules in Puerto Rico.7 The district court most certainly did not\\n\\nconsider any arrests which led to acquittals.\\n\\n Third, even beyond underrepresentation of criminal\\n\\nhistory, the district court focused on a number of facts about the\\n\\noffense of conviction and Rodríguez that were clearly relevant to\\n\\nSection 3553(a) factors and to an upward variance, including: the\\n\\ntype of weapon involved, an AM-15 \\\"assault rifle\\\" (\\\"nature and\\n\\ncircumstances of the offense\\\"); risk of recidivism and commission\\n\\nof this crime shortly after the end of a supervised release term\\n\\n(\\\"protect[ing] the public from further crimes of the defendant\\\");\\n\\nand Rodríguez's consistent illegal drug use and lack of steady\\n\\nemployment (\\\"history and characteristics of the defendant\\\"). 18\\n\\nU.S.C. § 3553(a). All of these provided additional reasonable\\n\\njustifications for an upward variance. We have affirmed in\\n\\nnumerous cases upward variances based on district courts'\\n\\nconsideration of such factors. See, e.g., United States v. Ortiz-\\n\\nÁlvarez, 921 F.3d 313, 316 (1st Cir. 2019) (involvement of an\\n\\n\\\"assault rifle\\\"); United States v. Bermúdez–Meléndez, 827 F.3d\\n\\n160, 164 (1st Cir. 2016) (involvement of an \\\"assault rifle\\\");\\n\\nFlores-Machiote, 706 F.3d at 24 (\\\"likely recidivism\\\"); United\\n\\n\\n\\n\\n 7 The record is not clear as to the reason for the\\ndismissal of the conjugal threats charge, but the PSR states that\\nit was dismissed, and the government stated (without objection)\\nthat further records from this arrest had been destroyed due to a\\ntimely motion by Rodríguez filed pursuant to Puerto Rico law.\\n\\n\\n - 17 -\\n\\fStates v. Santini-Santiago, 846 F.3d 487, 491 (1st Cir. 2017)\\n\\n(\\\"drug use\\\"); United States v. Rivera-González, 776 F.3d 45, 50\\n\\n(1st Cir. 2015) (\\\"employment record\\\").\\n\\n There was no plain error by the district court here.8\\n\\n 2. This Case Involves a Variance Under 18 U.S.C. § 3553(a),\\n Not a \\\"Departure\\\" Under U.S.S.G. § 4A1.3\\n\\n We have explained why there is no plain error here and\\n\\nthat this case is consistent with Marrero-Pérez. We add that there\\n\\nis an important structural distinction between this case and\\n\\nMarrero-Pérez that merits some discussion.\\n\\n Marrero-Pérez relied substantially on a policy statement\\n\\nconcerning upward departures, as specifically defined in the\\n\\nGuidelines. 914 F.3d at 22; see U.S.S.G. § 4A1.3(a); id. § 1B1.1\\n\\nn.1(F)(2). This policy statement states in part that \\\"[i]f\\n\\nreliable information indicates that the defendant's criminal\\n\\nhistory category substantially under-represents the seriousness of\\n\\nthe defendant's criminal history or the likelihood that the\\n\\ndefendant will commit other crimes, an upward departure may be\\n\\n\\n\\n\\n 8 \\\"Plain error review requires us to reverse only where a\\nlower court's error is clear or obvious in light of the prevailing\\nlaw, but 'Cortés-Medina held only that the law on this question\\n[consideration of arrests] was unclear.'\\\" Rondón-García, 886 F.3d\\nat 26 (quoting United States v. Delgado-Sánchez, 849 F.3d 1, 13\\n(1st Cir. 2017)). So, even (wrongly) reading Marrero-Pérez as\\nbroadly as Rodríguez sought at oral argument, the district court's\\nreference to the prior arrests would not amount to plain error\\nbased on the state of First Circuit law at the time of Rodríguez's\\nsentencing.\\n\\n\\n - 18 -\\n\\fwarranted.\\\" Id. § 4A1.3(a)(1). More importantly for present\\n\\npurposes, it states that \\\"[a] prior arrest record itself shall not\\n\\nbe considered for purposes of an upward departure under this policy\\n\\nstatement.\\\"9 Id. § 4A1.3(a)(3) (emphasis added). The Application\\n\\nNotes to the Guidelines state that \\\"Departure\\\" means, \\\"for purposes\\n\\nof § 4A1.3 . . . assignment of a criminal history category other\\n\\nthan the otherwise applicable criminal history category, in order\\n\\nto effect a sentence outside the applicable guideline range.\\\" Id.\\n\\n§ 1B1.1 n.1(F)(2).\\n\\n Here, in contrast with Marrero-Pérez, the district court\\n\\nwas varying upward, not departing, and referred specifically to\\n\\nits use of the Section 3553(a) factors. There was no assignment\\n\\nof a higher criminal history category, nor any mention of a\\n\\ndeparture.\\n\\n There are significant differences between a departure\\n\\nand a variance. \\\"In federal criminal sentencing, the term\\n\\n'departure' is a term of art.\\\" United States v. Román-Díaz, 853\\n\\nF.3d 591, 596 (1st Cir. 2017). As we have stated, quoting the\\n\\nSupreme Court in part,\\n\\n [a] 'departure,' as explained by the Supreme\\n Court, 'is a term of art under the Guidelines\\n\\n 9 This policy statement does not purport to address upward\\nvariances. And in United States v. Martin, we recognized that\\n\\\"[p]olicy statements issued by the Sentencing Commission . . .\\nnormally are not decisive as to what may constitute a permissible\\nground for a variant sentence in a given case.\\\" 520 F.3d 87, 93\\n(1st Cir. 2008).\\n\\n\\n - 19 -\\n\\f and refers only to non-Guidelines sentences\\n imposed under the framework set out in the\\n Guidelines.' Variant sentences, by contrast,\\n . . . result from a court's consideration of\\n the statutory sentencing factors enumerated in\\n 18 U.S.C. § 3553(a).\\n\\nUnited States v. Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014)\\n\\n(internal citations omitted) (quoting Irizarry v. United States,\\n\\n553 U.S. 708, 714 (2008)). Other circuits have recognized this\\n\\ndeparture/variance distinction. See, e.g., United States v.\\n\\nRodriguez, 855 F.3d 526, 532 n.7 (3d Cir. 2017) (\\\"A 'departure' is\\n\\ndifferent from a 'variance.'\\\"); United States v. Hernandez, 435 F.\\n\\nApp'x 873, 877 (11th Cir. 2011) (unpub.) (\\\"On the record as a\\n\\nwhole, we conclude the district court imposed a discretionary\\n\\n . . . upward variance based on the § 3553(a) factors, and not an\\n\\nupward departure based on U.S.S.G. § 4A1.3(a).\\\"); United States v.\\n\\nHerrera-Zuniga, 571 F.3d 568, 586 (6th Cir. 2009) (\\\"This Court has\\n\\nrecognized the distinction between sentencing departures under\\n\\nU.S.S.G. § 4A1.3 and variances under 18 U.S.C. § 3553(a).\\\");\\n\\nUnited States v. Solis-Bermudez, 501 F.3d 882, 884 (8th Cir. 2007)\\n\\n(\\\"[W]e have attempted to carefully distinguish between sentencing\\n\\ndepartures, which are provided for in . . . USSG § 4A1.3, and\\n\\nsentencing variances, which are . . . based on the factors\\n\\nenumerated in 18 U.S.C. § 3553(a).\\\"); United States v. Mejia-\\n\\nHuerta, 480 F.3d 713, 721 (5th Cir. 2007) (\\\"[A] sentencing court\\n\\nmay impose a non-Guidelines sentence, i.e., a 'variance', but not\\n\\n\\n\\n - 20 -\\n\\fa 'departure,' if it calculates the proper sentencing range and\\n\\nreferences the broad array of factors set forth in § 3553(a).\\\").\\n\\nImportantly, the policy statement, as to the \\\"arrest record\\n\\nitself,\\\" does not apply to a variance. U.S.S.G. § 4A1.3(a).\\n\\n The variance here resulted, in part, from the district\\n\\ncourt's determination that there was underrepresentation of the\\n\\ncriminal history (perhaps due to prior arrests and the conduct\\n\\nunderlying those arrests, perhaps due to facts underlying the prior\\n\\nconvictions). It is clear that, \\\"[a]s part of the [18 U.S.C.\\n\\n§ 3553(a)(1)] inquiry, a sentencing judge may consider whether a\\n\\ndefendant's criminal history score substantially underrepresents\\n\\nthe gravity of his past conduct.\\\" Flores-Machicote, 706 F.3d at\\n\\n21. Indeed, \\\"the very same factors that prompted the[] comments\\n\\n[on underrepresentation] also fit well within the scope of\\n\\n§ 3553(a): . . . the drug use and prior arrest[s] bore on 'the\\n\\ncharacteristics of the defendant.'\\\" Santini-Santiago, 846 F.3d at\\n\\n491 (quoting 18 U.S.C. § 3553(a)(1)). So, underrepresentation\\n\\n\\\"might also relate to a departure, but a sentencing court may\\n\\n'echo' a departure consideration as one factor in its analysis,\\n\\nwhile still imposing a variance.\\\" United States v. Acevedo-López,\\n\\n873 F.3d 330, 342 (1st Cir. 2017) (quoting Aponte-Vellón, 754 F.3d\\n\\nat 93). And like in Mercer, because the conduct -- here, arrests\\n\\nfor illegal drug use -- underlying dismissed or expunged charges\\n\\n\\\"was set forth in undisputed portions of the PSR, the District\\n\\n\\n - 21 -\\n\\fCourt was entitled to rely on that conduct when sentencing [the\\n\\ndefendant],\\\" 834 F.3d at 50, even assuming the district court\\n\\nindeed did so.10\\n\\n In Marrero-Pérez, we did not purport to restrict\\n\\ndistrict courts' use of the broad Section 3553(a) factors for a\\n\\nvariance. Marrero-Pérez also did not purport to overrule First\\n\\nCircuit cases such as Martin, Tabares, and Mercer (respectively,\\n\\nrecognizing a sentencing court's discretion to disagree with\\n\\npolicy statements in the Guidelines in imposing a variant sentence;\\n\\naffirming the use by a sentencing court of arrests not leading to\\n\\nconvictions where the defendant did not contest the conduct and\\n\\nwhere there were no acquittals; and recognizing the district\\n\\ncourt's entitlement to consider \\\"conduct that took place in\\n\\nconnection with the dismissed charges\\\" that was \\\"set forth in\\n\\nundisputed portions of the PSR\\\"). See, e.g., United States v.\\n\\nViloria-Sepulveda, 921 F.3d 5, 9 (1st Cir. 2019) (citing Martin\\n\\npositively); United States v. Vázquez, 724 F.3d 15, 30 n.12 (1st\\n\\nCir. 2013) (citing Tabares positively). Nor could it have done\\n\\nso.\\n\\n\\n\\n\\n 10 We do not suggest that only a bare arrest record, without\\nmore reliable explanation of or support for the underlying conduct\\nand without consideration of the circumstances of disposition,\\nwould be a valid basis for an upward variance under Section\\n3553(a). That issue is not presented on the record before us here.\\n\\n\\n - 22 -\\n\\f 3. The District Court Adequately Considered the Section\\n 3553(a) Factors\\n\\n Next, Rodríguez argues that the district court did not\\n\\nadequately consider the 18 U.S.C. § 3553(a) factors, and that\\n\\n\\\"[n]othing in the record specifically refers to any sentencing\\n\\nfactor.\\\" He is wrong.\\n\\n \\\"Failure to follow § 3553 results in prejudice\\n\\nwarranting reversal for plain error if the defendant shows a\\n\\nreasonable probability that but for an obvious error the court\\n\\nwould have imposed a more favorable sentence.\\\" United States v.\\n\\nOrtíz-Mercado, 919 F.3d 686, 690 (1st Cir. 2019).\\n\\n The district court explicitly stated that it considered\\n\\nthe Section 3553(a) sentencing factors, and that statement is\\n\\n\\\"entitled to significant weight.\\\" United States v. Calderón-\\n\\nLozano, 912 F.3d 644, 648 (1st Cir. 2019) (quoting United States\\n\\nv. Arroyo-Maldonado, 791 F.3d 193, 199 (1st Cir. 2015)). The\\n\\ndistrict court's explanation at the sentencing hearing, as we have\\n\\nrecounted, demonstrated ample consideration of Rodríguez's\\n\\n\\\"history and characteristics\\\" as well as the \\\"nature and\\n\\ncircumstances of the offense,\\\" 18 U.S.C. § 3553(a)(1), including\\n\\nRodríguez's education, and history of drug use, as well as \\\"the\\n\\nnature of the weapon involved, an assault rifle, which accepts\\n\\n5.56 millimeter military ammunition.\\\" Further, the district court\\n\\nstated that Rodríguez's firearm offense came \\\"less than five months\\n\\n\\n\\n - 23 -\\n\\fafter having completed his supervised release term\\\" for his federal\\n\\nwire and bank fraud offense. Indeed, both the attempted sale of\\n\\nan assault rifle and the timing of the offense are also surely\\n\\nrelevant to Rodríguez's likelihood of recidivism11 and the threat\\n\\nhe posed to the safety of the community.\\n\\n As we have said, \\\"[f]ailure to follow § 3553 results in\\n\\nprejudice warranting reversal for plain error if the defendant\\n\\nshows a reasonable probability that but for an obvious error the\\n\\ncourt would have imposed a more favorable sentence.\\\" Ortíz-\\n\\nMercado, 919 F.3d at 690. Rodríguez never argued, much less\\n\\ndemonstrated, that he was so prejudiced.\\n\\n 4. There Was No Plain Error in the District Court Varying\\n from the Government's Sentencing Recommendation\\n\\n Rodríguez argues in passing that the district court\\n\\nshould have followed the government's sentencing recommendation,\\n\\nbecause \\\"the government ha[d] all the evidence . . . to consider\\n\\nan adequate plea agreement.\\\" This argument is waived for lack of\\n\\ndeveloped argumentation. See United States v. Zannino, 895 F.2d\\n\\n1, 17 (1st Cir. 1990).\\n\\n In any event, a Rule 11(c)(1)(b) plea does not bind a\\n\\ndistrict court to the recommendation in a plea agreement. Fed. R.\\n\\n\\n 11 In discussing \\\"protect[ing] the public from further\\ncrimes\\\" and Rodríguez's \\\"recidivism,\\\" the district court made no\\nfurther reference to any of the arrests not leading to convictions,\\nand so may well have been referring just to Rodríguez's multiple\\ndrug convictions and bank and wire fraud conviction.\\n\\n\\n - 24 -\\n\\fCrim. P. 11(c)(1)(b); see United States v. Ubiles-Rosario, 867\\n\\nF.3d 277, 294 (1st Cir. 2017) (\\\"[T]he district court was not bound\\n\\nby the parties' recommendations.\\\"); United States v. Garcia-Pupo,\\n\\n845 F.2d 8, 10 (1st Cir. 1988) (\\\"[J]udges cannot be bound by a\\n\\nprosecutor's sentencing recommendation.\\\"). This was made clear to\\n\\nRodríguez by a magistrate judge at the change-of-plea hearing,\\n\\nheld about two months before the sentencing hearing. The choice\\n\\nby the district court of a sentence other than one recommended by\\n\\nthe parties is not, in itself, error.\\n\\nB. Substantive Reasonableness\\n\\n The standard of review for challenges to substantive\\n\\nreasonableness raised for the first time on appeal, between abuse\\n\\nof discretion and plain error, remains an open question in this\\n\\ncircuit. See Ruiz-Huertas, 792 F.3d at 228. This question can be\\n\\nbypassed here because Rodríguez does not prevail even assuming, in\\n\\nhis favor, that abuse of discretion applies.\\n\\n To some extent blurring substantive and procedural\\n\\nreasonableness, Rodríguez argues that the district court failed to\\n\\nconsider potentially mitigating factors (though he does not\\n\\nclearly delineate what these factors were) and failed to consider\\n\\nreasons for the government's request of twenty-one months. This\\n\\nmeans, he argues, that the district court failed \\\"to weigh the\\n\\nSection 3353(a) factors and various mitigating circumstances\\n\\n\\n\\n\\n - 25 -\\n\\fproperly.\\\" He also asserts that the sentence was longer than\\n\\nnecessary for the purposes of sentencing.\\n\\n There is no \\\"requirement that a district court afford\\n\\neach of the section 3553(a) factors equal prominence,\\\" as \\\"[t]he\\n\\nrelative weight of each factor will vary with the idiosyncratic\\n\\ncircumstances of each case.\\\" United States v. Dixon, 449 F.3d\\n\\n194, 205 (1st Cir. 2006). Rodríguez does not even state what are\\n\\nthe \\\"various mitigating circumstances\\\" that the district court\\n\\nallegedly ignored, so his argument fails on waiver. Regardless,\\n\\nthat Rodríguez disagrees with how the court weighed the factors\\n\\n\\\"does not make the sentence unreasonable.\\\" Clogston, 662 F.3d at\\n\\n593.\\n\\n Finally, as to Rodríguez's general contention that\\n\\n\\\"[t]he sentence imposed was longer than necessary to comply with\\n\\nthe purposes of sentencing,\\\" this argument also fails. The\\n\\ndistrict court offered a plausible rationale for the upward\\n\\nvariance based substantially on Section 3553(a) factors. The\\n\\nsentence imposed, thirty-six months' imprisonment, was \\\"within the\\n\\nwide universe of reasonable sentencing outcomes\\\" and that ends the\\n\\nmatter. Ruiz-Huertas, 792 F.3d at 229.\\n\\n III.\\n\\n Affirmed.\\n\\n\\n\\n\\n - 26 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2366,"cells":{"id":{"kind":"number","value":4627970,"string":"4,627,970"},"name":{"kind":"string","value":"Cynthia L. MERLINI, Plaintiff, Appellant, v. CANADA, Defendant, Appellee."},"name_abbreviation":{"kind":"string","value":"Merlini v. Canada"},"decision_date":{"kind":"string","value":"2019-06-10"},"docket_number":{"kind":"string","value":"17-2211P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Kayatta, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888690/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888691/\", \"author_raw\": \"\"}, {\"author\": \"BARRON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-2211\\n\\n CYNTHIA L. MERLINI,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n CANADA,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Nathaniel M. Gorton, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Theodore J. Folkman, with whom Murphy & King, P.C. was on\\nbrief, for appellant.\\n John F. Cooney, with whom Benjamin E. Horowitz, Venable LLP,\\nD.E. Wilson, Jr., Andrew E. Bigart, and Liz C. Rinehart were on\\nbrief, for appellee.\\n\\n\\n June 10, 2019\\n\\n BARRON, Circuit Judge. Cynthia Merlini (\\\"Merlini\\\") is\\n\\na United States citizen who was injured in the course of her\\n\\nemployment as an administrative assistant at the Canadian\\n\\nconsulate in Boston, Massachusetts. The injury occurred in 2009\\n\\nwhen she tripped over a cord in the consulate that had not been\\n\\nsecured to the floor. In 2017, as a result of that injury, Merlini\\n\\nsued Canada for damages in the United States District Court for\\n\\nthe District of Massachusetts pursuant to the Massachusetts\\n\\nWorkers' Compensation Act (the \\\"MWCA\\\"), which is codified at\\n\\nMassachusetts General Laws chapter 152.\\n\\n The District Court dismissed Merlini's complaint for\\n\\nlack of jurisdiction after concluding that Canada was immune from\\n\\nthe suit under the Foreign Sovereign Immunities Act (\\\"FSIA\\\"), 28\\n\\nU.S.C. § 1602 et. seq. We now reverse.\\n\\n I.\\n\\n In 2003, the government of Canada hired Merlini -- who\\n\\nis a resident of Massachusetts, a citizen of the United States,\\n\\nand not a citizen of Canada -- to be an administrative assistant\\n\\nto the Consul General of Canada in Boston. Merlini asserts, and\\n\\nCanada does not contest, that her \\\"duties\\\" in this position \\\"were\\n\\npurely clerical, and comparable to the duties of an assistant or\\n\\nsecretary to an executive in any private firm,\\\" as \\\"[s]he answered\\n\\nthe phones, maintained files, typed letters, and did other\\n\\nsecretarial work\\\" in the Canadian consulate in Boston. She further\\n\\n\\n - 2 -\\n\\nasserts, again without dispute, that \\\"[s]he was not a consular\\n\\nofficer,\\\" \\\"[s]he had no governmental, consular, diplomatic, or\\n\\nofficial duties,\\\" \\\"[s]he took no competitive examination before\\n\\nhiring,\\\" and \\\"she was not entitled to tenure protections, or to\\n\\nthe employment benefits Canadian foreign service officers\\n\\nreceived.\\\"\\n\\n Merlini alleges that, while setting up coffee and tea\\n\\nservice on January 22, 2009 for a meeting at the consulate, she\\n\\ntripped over an unsecured speakerphone cord, fell, struck a\\n\\ncredenza, and thereby sustained \\\"a serious injury\\\" that left her\\n\\nunable to work. Canada does not challenge that allegation for the\\n\\npurpose of the present appeal. Additionally, it is undisputed\\n\\nthat, per Canada's own national workers' compensation system,\\n\\nCanada paid Merlini what amounted to her full salary from shortly\\n\\nafter the accident until October 2009.\\n\\n Sometime thereafter, however, Canada determined that\\n\\nMerlini was able to return to work and ceased paying her pursuant\\n\\nto its national workers' compensation system. That determination\\n\\nappears to have set matters on the course that has resulted in the\\n\\nsuit that is now before us on appeal.\\n\\n The initial step on that course was Merlini's request\\n\\nthat Canada reconsider its determination to stop paying her under\\n\\nCanada's workers' compensation system. Following Canada's denial\\n\\n\\n\\n\\n - 3 -\\n\\nof that request for reconsideration, Merlini shifted course and\\n\\nsought relief under Massachusetts law.\\n\\n Merlini did so first, in 2011, by bringing an\\n\\nadministrative claim against the Massachusetts Workers'\\n\\nCompensation Trust Fund (\\\"WCTF\\\"). That fund provides, among other\\n\\nthings, for the payment of benefits to employees who are unable to\\n\\nwork in consequence of workplace injuries that they have suffered\\n\\nwhile working for an employer who is subject to personal\\n\\njurisdiction within the Commonwealth and who is \\\"uninsured\\\" for\\n\\npurposes of the MWCA. See Mass. Gen. Laws ch. 152 § 65(2)(e).\\n\\nChapter 152 provides that, to qualify as \\\"insured,\\\" an employer\\n\\nmust (1) have insurance with an insurer, (2) hold membership in a\\n\\nworkers' compensation self-insurance group certified by the state,\\n\\nor (3) be licensed as self-insured annually by the state, which\\n\\nrequires the employer, among other things, to complete a detailed\\n\\napplication, provide certain financial information, post a surety\\n\\nbond to or deposit negotiable securities with the state to cover\\n\\nany losses that may occur, and purchase catastrophe reinsurance of\\n\\nat least $500,000. See id. at §§ 1(6), 25A; 452 Mass. Code Regs.\\n\\n5.00; see also LaClair v. Silberline Mfg. Co., 393 N.E.2d 867, 871\\n\\n(Mass. 1979).\\n\\n In 2013, the Massachusetts Department of Industrial\\n\\nAccidents (\\\"DIA\\\") held an evidentiary hearing, in which Canada\\n\\nparticipated as amicus curiae for the WCTF, on Merlini's claim\\n\\n\\n - 4 -\\n\\nagainst the fund. An administrative judge found that Merlini was\\n\\nentitled to ongoing incapacity benefits from the fund under chapter\\n\\n152 § 34 (temporary total incapacity benefits) and chapter 152\\n\\n§ 34A (permanent total incapacity benefits).\\n\\n The WCTF then appealed this ruling to the DIA's Reviewing\\n\\nBoard (\\\"DIA Board\\\"). In 2015, the DIA Board reversed the\\n\\nadministrative judge's ruling and denied Merlini the benefits from\\n\\nthe fund. The DIA Board determined that (1) Canada was not\\n\\n\\\"subject to the personal jurisdiction of the Commonwealth\\\"; (2)\\n\\nCanada was not \\\"uninsured\\\" for purposes of the statute because it\\n\\nhad sovereign immunity; and (3) the WCTF was not liable if an\\n\\nemployee was entitled to workers' compensation benefits in any\\n\\nother jurisdiction, Mass. Gen. Laws ch. 152 § 65(2)(e)(i), and\\n\\nMerlini was in fact entitled under Canadian law to such benefits\\n\\nunder Canada's national workers' compensation system.\\n\\n In 2016, Merlini sought review of the DIA Board's ruling\\n\\nfrom the Massachusetts Appeals Court (\\\"MAC\\\"). The MAC upheld the\\n\\nBoard's ruling. The MAC did so, however, only on the ground that,\\n\\nin consequence of the injury that Merlini suffered at the\\n\\nconsulate, she had been entitled to benefits in another\\n\\njurisdiction -- namely, Canada. Thus, the MAC did not \\\"address\\n\\nwhether the Canadian government is subject to the jurisdiction of\\n\\nthe Commonwealth or whether the Consulate was an 'uninsured\\n\\nemployer' in violation of chapter 152.\\\"\\n\\n\\n - 5 -\\n\\n Merlini did not appeal the MAC's ruling. Instead, in\\n\\n2017, Merlini sued Canada for damages in federal district court in\\n\\nthe District of Massachusetts pursuant to chapter 152. It is that\\n\\nsuit that is the subject of this appeal.\\n\\n Canada moved to dismiss Merlini's suit on jurisdictional\\n\\ngrounds under Federal Rule of Civil Procedure 12(b)(1). Canada\\n\\ncontended in its motion that it was entitled to foreign sovereign\\n\\nimmunity under the FSIA and thus that the District Court lacked\\n\\njurisdiction. Canada also separately moved to dismiss Merlini's\\n\\nsuit under Federal Rule of Civil Procedure 12(b)(6) for failure to\\n\\nstate a claim. Canada did so on the ground that the DIA Board's\\n\\nruling that Canada was not \\\"uninsured\\\" was preclusive of Merlini's\\n\\nclaim because the DIA Board had ruled on that basis that Canada\\n\\n\\\"was not required to obtain local workers' compensation insurance\\n\\nor register with the state as a self-insurer and therefore could\\n\\nnot be considered an uninsured employer\\\" under the MWCA.\\n\\n In opposing Canada's motion to dismiss, Merlini first\\n\\nasserted that two exceptions to the FSIA's presumption of foreign\\n\\nsovereign immunity applied: the \\\"commercial activity\\\" exception,\\n\\n28 U.S.C. § 1605(a)(2),1 and the \\\"noncommercial tort\\\" exception,\\n\\n\\n 1 This provision states that:\\n A foreign state shall not be immune from the\\n jurisdiction of courts of the United States or of\\n the States in any case in which the action is based\\n upon a commercial activity carried on in the United\\n\\n\\n\\n - 6 -\\n\\nid. at § 1605(a)(5).2 Merlini thus contended that the District\\n\\nCourt had jurisdiction over Canada. Merlini also argued that she\\n\\nhad stated a claim against Canada because the DIA Board ruling did\\n\\nnot preclude her claim.\\n\\n In December 2017, the District Court dismissed Merlini's\\n\\ncomplaint for lack of jurisdiction on the grounds that, pursuant\\n\\nto the FSIA, Canada is \\\"'presumptively immune' from liability in\\n\\nfederal courts of the United States\\\" and that Merlini had failed\\n\\nto demonstrate that either of the two FSIA exceptions on which she\\n\\n\\n\\n\\n States by the foreign state; or upon an act\\n performed in the United States in connection with\\n a commercial activity of the foreign state\\n elsewhere; or upon an act outside the territory of\\n the United States in connection with a commercial\\n activity of the foreign state elsewhere and that\\n act causes a direct effect in the United States.\\n 2 This provision states that:\\n A foreign state shall not be immune from the\\n jurisdiction of courts of the United States or of\\n the States in any case not otherwise encompassed in\\n paragraph (2) [the \\\"commercial activity\\\" exception]\\n above, in which money damages are sought against a\\n foreign state for personal injury or death, or\\n damage to or loss of property, occurring in the\\n United States and caused by the tortious act or\\n omission of that foreign state or of any official\\n or employee of that foreign state while acting\\n within the scope of his office or employment;\\n except this paragraph shall not apply to -- (A) any\\n claim based upon the exercise or performance or the\\n failure to exercise or perform a discretionary\\n function regardless of whether the discretion be\\n abused, or (B) any claim arising out of malicious\\n prosecution, abuse of process, libel, slander,\\n misrepresentation, deceit, or interference with\\n contract rights.\\n\\n - 7 -\\n\\nrelied in contesting Canada's sovereign immunity applied. Merlini\\n\\nv. Canada, 280 F. Supp. 3d 254, 256, 258 (D. Mass. 2017) (quoting\\n\\nSaudi Arabia v. Nelson, 507 U.S. 349, 355 (1993)). The District\\n\\nCourt \\\"decline[d] to address\\\" Canada's separate contention that\\n\\nMerlini had failed to state a claim for which relief could be\\n\\ngranted. Id. at 259. Merlini now appeals the District Court's\\n\\ndismissal of her claim for lack of jurisdiction and also contends\\n\\nthat the dismissal of her claim may not be affirmed on issue\\n\\npreclusion grounds.\\n\\n II.\\n\\n We start by describing certain aspects of the\\n\\nMassachusetts workers' compensation scheme, as codified by chapter\\n\\n152 of the MWCA. Those provisions figure prominently in the\\n\\nparties' dispute over whether Canada is entitled to foreign\\n\\nsovereign immunity in this case.\\n\\n As a general matter, the MWCA bars an employee from suing\\n\\nher employer for a work-related injury -- including one resulting\\n\\nfrom a fellow employee's conduct -- when the employer is \\\"insured\\\"\\n\\nwithin the meaning of the MWCA. See Mass. Gen. Laws ch. 152 § 24.\\n\\nThe MWCA imposes this bar by providing that an employee waives the\\n\\n\\\"right of an action at common law . . . [with] respect to an injury\\n\\nthat is compensable under [the MWCA]\\\" if the employer was insured\\n\\nwithin the meaning of the MWCA at the time of the employee's hiring\\n\\nor became insured prior to the employee's injury, unless the\\n\\n\\n - 8 -\\n\\nemployee preserves such a right by providing proper notice of the\\n\\nemployee's intent to preserve it. Id.\\n\\n Chapter 152, however, sets forth a corollary to this\\n\\nbar. It provides that, if an employer is not insured within the\\n\\nmeaning of the MWCA, then an employee, generally, may bring a suit\\n\\nagainst the employer to recover for a workplace injury -- even if\\n\\nthe conduct is caused by a fellow employee. See Hanover Ins. Co.\\n\\nv. Ramsey, 539 N.E.2d 537, 538 n.3 (Mass. 1989) (\\\"An employer who\\n\\nhas failed to obtain workers' compensation insurance can be held\\n\\nliable essentially in all cases in which the employee can prove\\n\\nthat he was injured in the course of his work.\\\").\\n\\n Moreover, chapter 152 makes clear that, in such a suit\\n\\nby the employee, the employer is deprived of asserting a host of\\n\\nimportant defenses that would ordinarily be available at common\\n\\nlaw, which effectively renders the employee's claim against the\\n\\nemployer a \\\"strict liability\\\" claim. See Doe v. Access Indus.,\\n\\nInc., 137 F. Supp. 3d 14, 16 (D. Mass. 2015); Coppola v. City of\\n\\nBeverly, 576 N.E.2d 686, 687 (Mass. App. Ct. 1991). Section 66 of\\n\\nchapter 152 specifies the limitations on the defenses that are\\n\\navailable as follows:\\n\\n Actions brought against employers to recover\\n damages for personal injuries or consequential\\n damages sustained within or without the\\n commonwealth by an employee in the course of\\n his employment . . . shall be commenced within\\n twenty years from the date the employee first\\n became aware of the causal relationship\\n\\n\\n - 9 -\\n\\n between the disability and his employment. In\\n such actions brought by said\\n employees . . . it shall not be a defense: 1.\\n That the employee was negligent; 2. That the\\n injury was caused by the negligence of a\\n fellow employee; 3. That the employee had\\n assumed voluntarily or contractually the risk\\n of the injury; 4. That the employee's injury\\n did not result from negligence or other fault\\n of the employer, if such injury arose out of\\n and in the course of employment.\\n\\n Merlini contends that, because Canada is not insured\\n\\n(even as a self-insurer) within the meaning of chapter 152, she is\\n\\nentitled under chapter 152 to bring her suit against Canada for\\n\\nthe workplace injury that she suffered. And, she further contends,\\n\\nfor that same reason, Canada is subject in her suit to the\\n\\nlimitations on the defenses that are set forth in § 66. Canada\\n\\nargues in response that, precisely because Merlini relies on § 66,\\n\\nit is entitled to immunity under the FSIA, even assuming that\\n\\nCanada does not qualify as being \\\"insured\\\" within the meaning of\\n\\nchapter 152. Thus, Canada contends, Merlini's claim must be\\n\\ndismissed for lack of jurisdiction.\\n\\n We must now decide whether Canada is right. To do so,\\n\\nwe must address Merlini's contention that Canada lacks foreign\\n\\nsovereign immunity in consequence of either of two exceptions to\\n\\nsuch immunity that the FSIA recognizes.\\n\\n\\n\\n\\n - 10 -\\n\\n III.\\n\\n The FSIA \\\"provides the sole basis for obtaining\\n\\njurisdiction over a foreign state in federal court.\\\" Universal\\n\\nTrading & Inv. Co. v. Bureau for Representing Ukrainian Interest\\n\\nin Int'l & Foreign Courts, 727 F.3d 10, 16 (1st Cir. 2013) (quoting\\n\\nArgentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 439\\n\\n(1989)). The FSIA establishes \\\"a presumption of foreign sovereign\\n\\nimmunity from the jurisdiction of the courts of the United States\\\"\\n\\nthat typically controls the jurisdictional question. Id. (citing\\n\\n28 U.S.C. § 1330; Verlinden B.V. v. Cent. Bank of Nigeria, 461\\n\\nU.S. 480, 485 n.5 (1983)). Thus, as a general matter, \\\"courts in\\n\\nthe Unites States lack both subject matter and personal\\n\\njurisdiction over a suit against a foreign sovereign.\\\" Id.\\n\\n The FSIA does, however, set forth a list of express\\n\\nexceptions to the foreign sovereign immunity that it generally\\n\\nrecognizes, such that foreign states are not immune from suit in\\n\\nfederal court if one of those \\\"enumerated exceptions to immunity\\n\\napplies.\\\" Id. (citing 28 U.S.C. §§ 1604, 1605, 1605A; Verlinden,\\n\\n461 U.S. at 488). Merlini invokes two of those exceptions -- the\\n\\n\\\"commercial activity\\\" exception and the \\\"noncommercial tort\\\"\\n\\nexception -- in contending that Canada is not entitled to sovereign\\n\\nimmunity from her suit.\\n\\n We focus here on one of them, the \\\"commercial activity\\\"\\n\\nexception, 28 U.S.C. § 1605(a)(2), as we conclude that, contrary\\n\\n\\n - 11 -\\n\\nto the District Court's ruling, this exception does apply. This\\n\\nconclusion, moreover, precludes the \\\"noncommercial tort\\\" exception\\n\\nfrom applying. See 28 U.S.C. § 1605(a)(5) (providing that \\\"[a]\\n\\nforeign state shall not be immune from the jurisdiction of courts\\n\\nof the United States or of the States in any case not otherwise\\n\\nencompassed in paragraph (2) [the \\\"commercial activity\\\"\\n\\nexception]\\\"). Our review of the District Court's ruling on this\\n\\nscore is de novo. Universal Trading, 727 F.3d at 15.\\n\\n A.\\n\\n The \\\"commercial activity\\\" exception provides in relevant\\n\\npart that \\\"a foreign state is subject to jurisdiction in any case\\n\\n'in which the action is based upon a commercial activity carried\\n\\non in the United States by the foreign state.'\\\" Fagot Rodriguez\\n\\nv. Republic of Costa Rica, 297 F.3d 1, 5 (1st Cir. 2002) (emphasis\\n\\nadded) (quoting 28 U.S.C. § 1605(a)(2)). The inquiry into whether\\n\\nthe exception applies -- at least in a case like this, in which\\n\\nthe parties agree that the foreign state \\\"carried on\\\" the relevant\\n\\naction \\\"in the United States\\\" -- involves two steps.\\n\\n The first step \\\"requires a court to 'identify[] the\\n\\nparticular conduct on which the [plaintiff's] action is based.'\\\"\\n\\nOBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 395 (2015)\\n\\n(alteration in original) (quoting Saudi Arabia v. Nelson, 507 U.S.\\n\\n349, 356 (1993)). In performing that threshold inquiry, \\\"a court\\n\\nshould identify that 'particular conduct' by looking to the 'basis'\\n\\n\\n - 12 -\\n\\nor 'foundation' for a claim,\\\" which the court has variously\\n\\ndescribed as \\\"'those elements . . . that, if proven, would entitle\\n\\na plaintiff to relief'\\\" and as \\\"the gravamen of the complaint.\\\"\\n\\nId. (omission in original) (internal citations omitted) (quoting\\n\\nNelson, 507 U.S. at 357).\\n\\n This inquiry requires more than a myopic focus on whether\\n\\n\\\"one element\\\" of the claim is based upon a \\\"commercial activity\\\"\\n\\nof the foreign state. See id. at 394-96. The right approach looks\\n\\nbeyond the fact that a single element of the claim might be \\\"based\\n\\non\\\" such conduct and instead \\\"zeroe[s] in on the core of\\\" the\\n\\nplaintiff's claim. Id. at 396.\\n\\n After a court identifies the particular conduct by the\\n\\nforeign state on which the plaintiff's claim is \\\"based,\\\" the next\\n\\nstep in the inquiry requires a court to determine whether that\\n\\nconduct qualifies as \\\"commercial activity.\\\" Fagot Rodriguez, 297\\n\\nF.3d at 5. If the conduct does so qualify, then the \\\"commercial\\n\\nactivity\\\" exception to foreign state sovereign immunity applies,\\n\\nat least when, as in this case, the parties do not dispute that\\n\\nthe conduct was \\\"carried on\\\" by the foreign state \\\"in the United\\n\\nStates.\\\"\\n\\n \\\"The term 'commercial activity' encompasses both 'a\\n\\nregular course of commercial conduct' and 'a particular commercial\\n\\ntransaction or act.'\\\" Id. (quoting 28 U.S.C. § 1603(d)). As we\\n\\nhave explained, however, \\\"the question is not whether the foreign\\n\\n\\n - 13 -\\n\\ngovernment [was] acting with a profit motive or instead with the\\n\\naim of fulfilling uniquely sovereign objectives,\\\" but \\\"[r]ather,\\n\\nthe issue is whether the particular actions that the foreign state\\n\\nperform[ed] (whatever the motive behind them) [were] the type of\\n\\nactions by which a private party engages in 'trade and traffic or\\n\\ncommerce.'\\\" Id. at 6 (alterations in original) (quoting Republic\\n\\nof Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992)). Thus,\\n\\n\\\"[i]n assessing whether a certain transaction or course of conduct\\n\\nis commercial in character, courts must look to the 'nature' of\\n\\nthe activity rather than its 'purpose.'\\\" Id. at 5-6; see also 28\\n\\nU.S.C. § 1603(d) (\\\"The commercial character of an activity shall\\n\\nbe determined by reference to the nature of the course of conduct\\n\\nor particular transaction or act, rather than by reference to its\\n\\npurpose.\\\").\\n\\n Against this legal background, the key questions\\n\\nconcerning the \\\"commercial activity\\\" exception that we must\\n\\naddress in this appeal are the following: what conduct is Merlini's\\n\\nclaim against Canada \\\"based on,\\\" and is that conduct \\\"commercial\\n\\nactivity\\\"? We turn, then, to those two questions, starting with\\n\\nthe first.\\n\\n B.\\n\\n In taking up the first question, we begin by observing\\n\\nthat Canada does not dispute that it employed Merlini at its\\n\\nconsulate in Boston, that she is an American citizen and not a\\n\\n\\n - 14 -\\n\\nCanadian citizen, that her employment involved only duties that\\n\\n\\\"were purely clerical,\\\" and that her employment lacked indicia of\\n\\ndiplomatic or civil service.3 Nor does Canada contest, for\\n\\npurposes of this appeal, that Merlini was injured while performing\\n\\nher ordinary clerical duties as Canada's employee in the consulate\\n\\nin Boston.\\n\\n Thus, if Merlini's complaint is \\\"based on\\\" Canada's\\n\\nemployment of her as a clerical worker doing routine clerical work\\n\\nat the consulate in Boston, then the \\\"commercial activity\\\"\\n\\nexception would appear to apply. See H. Rep. No. 94-1487, at 16\\n\\n(1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6615 (describing\\n\\n\\\"[a]ctivities such as a government's . . . employment or engagement\\n\\nof laborers, clerical staff or public relations or marketing agents\\n\\n. . . [as] those included within the definition [of commercial\\n\\nactivity]\\\" (emphasis added)). In fact, Canada does not appear to\\n\\nargue otherwise.\\n\\n The State Department, in its amicus brief, however,\\n\\ncontends that Merlini's complaint is solely \\\"based on\\\" the\\n\\nnegligent conduct by her fellow employee that caused the injury\\n\\nthat she suffered during the course of her employment -- namely,\\n\\n\\n\\n 3As already mentioned, Canada does not contend that Merlini\\nhad governmental, consular, diplomatic, or official duties; took\\na competitive examination before hiring; or was entitled to tenure\\nprotections or the employment benefits Canadian foreign service\\nofficers receive.\\n\\n\\n\\n - 15 -\\n\\nwhat she alleges in her complaint to have been the negligent laying\\n\\nof the cord by that employee. The Department then contends that\\n\\nthis conduct does not qualify as \\\"commercial activity\\\" and thus\\n\\nthat the \\\"commercial activity\\\" exception does not apply. Rather,\\n\\nthe Department contends, the \\\"noncommercial tort\\\" exception is the\\n\\nonly exception that might apply in Merlini's case, insofar as her\\n\\naction under § 66 can be characterized -- notwithstanding the fact\\n\\nthat it strips the employer of asserting an absence of negligence\\n\\nas a defense -- as one that seeks recovery \\\"against a foreign state\\n\\nfor personal injury . . . caused by [a] tortious act or omission.\\\"\\n\\n28 U.S.C. § 1605(a)(5) (emphasis added). The Department thus\\n\\nargues that we should vacate and remand to permit Merlini to\\n\\ndevelop her claim of negligence under the \\\"noncommercial tort\\\"\\n\\nexception.\\n\\n To establish the premise on which this contention\\n\\nrests -- namely, that the suit is based solely on the conduct of\\n\\nMerlini's fellow employee with respect to the speakerphone\\n\\ncord -- the Department invokes the Supreme Court's opinion in Saudi\\n\\nArabia v. Nelson. There, the plaintiff argued that his claims of\\n\\ntorture and false imprisonment at the hands of the Saudi Arabian\\n\\ngovernment were \\\"commercial\\\" in nature because it was his\\n\\nemployment with the Saudi Arabian government that \\\"led to\\\" those\\n\\ninjuries. Nelson, 507 U.S. at 358. The Supreme Court, however,\\n\\ndisagreed. In so deciding, the Court held that it was wrong to\\n\\n\\n - 16 -\\n\\ncharacterize the plaintiff's claims as being \\\"based on\\\"\\n\\n\\\"commercial activity\\\" simply because \\\"commercial activity\\\"\\n\\n\\\"preceded\\\" the conduct from which those claims arose. Id.\\n\\nInstead, the Court stressed that while the plaintiff's employment\\n\\nmay have \\\"led to\\\" his injuries at the hands of the Saudi Arabian\\n\\ngovernment in a temporal sense, the actions that effectuated those\\n\\ninjuries were in no way tied to that employment and were,\\n\\ntherefore, not \\\"commercial\\\" in nature. Id. The Department argues\\n\\nthat the same conclusion is required here.\\n\\n We disagree. The MWCA requires that Merlini prove only\\n\\nthat she was injured in the workplace in the course of her\\n\\nemployment with Canada. Consequently, Merlini is not required to\\n\\nprove -- as the plaintiff in Nelson was required to prove as to\\n\\nhis claims for battery, unlawful detainment, wrongful arrest and\\n\\nimprisonment, false imprisonment, inhuman torture, disruption of\\n\\nnormal family life, and infliction of mental anguish -- any action\\n\\nby any person that caused the underlying injury. She has to prove,\\n\\ninstead, that she suffered a workplace injury in the course of her\\n\\nemployment and that the defendant, Canada, was her employer. Given\\n\\nthat courts have held that an employer's maintenance of a hostile\\n\\nor discriminatory work environment constitutes \\\"commercial\\n\\nactivity\\\" for the purposes of a Title VII suit against an employer,\\n\\n42 U.S.C. § 2000e–2(a), -- see, e.g., Holden v. Canadian Consulate,\\n\\n92 F.3d 918, 922 (9th Cir. 1996); Ashraf-Hassan v. Embassy of\\n\\n\\n - 17 -\\n\\nFrance in United States, 40 F. Supp. 3d 94, 102-03 (D.D.C.\\n\\n2014) -- we fail to see why that same logic does not apply to\\n\\nMerlini’s § 66 claim against her employer for workplace injuries\\n\\nsuffered by employees during the course of their employment. Hers\\n\\nis no more an ordinary slip and fall case than those cases are\\n\\nordinary harassment cases. Each rests on a claim that makes the\\n\\nemployer directly liable for what happens in the workplace to the\\n\\nemployee who brings the suit.\\n\\n To be sure, the Supreme Court has stressed that to find\\n\\nthe gravamen of any personal injury suit, one must look to \\\"the\\n\\npoint of contact -- the place where the boy got his fingers\\n\\npinched.\\\" Sachs, 136 S. Ct. at 397 (internal quotations omitted).\\n\\nHowever, nothing in that precedent requires that we assess that\\n\\nconduct independent of the plaintiff's actual claim, which, in\\n\\nthis case, is a claim against the employer -- not a fellow employee\\n\\n-- and requires no proof that any fellow employee engaged in any\\n\\nparticular conduct.\\n\\n We find the D.C. Circuit's analysis in El-Hadad v. United\\n\\nArab Emirates instructive in this regard. 496 F.3d 658 (D.C. Cir.\\n\\n2007). There, the Court held that that the gravamen of the\\n\\nplaintiff's complaint, which alleged breach of contract for\\n\\nwrongful termination, involved \\\"commercial activity,\\\" in part,\\n\\nbecause it occurred in the \\\"employment context.\\\" Id. at 663. In\\n\\nchoosing to focus on the \\\"employment relationship . . . as a\\n\\n\\n - 18 -\\n\\nwhole,\\\" the Court noted that a \\\"narrow[er]\\\" framing of the gravamen\\n\\nof the complaint -- focusing myopically on the plaintiff's\\n\\ndefamation or breach of contract claims divorced from the\\n\\nemployment context -- would \\\"defy analysis\\\" under the \\\"commercial\\n\\nactivity\\\" inquiry. Id. at 663 n.1 (highlighting the difficulty of\\n\\ncharacterizing a \\\"breach of contract,\\\" without more, as\\n\\n\\\"commercial\\\" or \\\"non-commercial\\\").\\n\\n Simply put, Merlini's employment did not simply \\\"le[ad]\\n\\nto\\\" the injury that she received; it provides the legal basis for\\n\\nthe only cause of action that she has against her employer for the\\n\\ninjury for which she seeks to recover. See In re Opinion of the\\n\\nJustices, 34 N.E.2d 527, 544 (Mass. 1941) (establishing that\\n\\nchapter 152 §66 \\\"must be interpreted as creating a cause of action\\n\\nin an employee sustaining an injury 'in the course of his\\n\\nemployment' that is a 'direct result' of such employment though\\n\\nnot a 'direct result of any negligence on the part of the\\n\\nemployer'\\\").\\n\\n We recognize that, as the Department notes, the Supreme\\n\\nCourt did not reject all of Nelson's claims on the ground that his\\n\\nallegations of \\\"commercial activity\\\" (his employment) preceded the\\n\\nactual conduct causing his injuries. Instead, in both Nelson and\\n\\nthe Court's subsequent decision in Sachs, the Supreme Court noted\\n\\nthat, with respect to the plaintiffs' failure to warn claims, the\\n\\nexception triggering activities (Nelson's employment and Sachs's\\n\\n\\n - 19 -\\n\\nticket purchase) were necessary elements of those claims.\\n\\nNonetheless, the Court concluded in both cases that the failure to\\n\\nwarn claims were impermissible because they were\\n\\n\\\"merely . . . semantic ploy[s],\\\" Nelson, 507 U.S. 9 at 363,\\n\\n\\\"artful[ly] pled[],\\\" Sachs, 136 S. Ct. at 396, to avoid the foreign\\n\\nstates' sovereign immunity.\\n\\n Insofar as the Department means to argue that Merlini's\\n\\nclaims are, in some way, a similar \\\"semantic ploy\\\" to avoid\\n\\nCanada's sovereign immunity, no such concerns exist here.\\n\\nMerlini's chapter 152 claim was not part of some shrewd litigation\\n\\nstrategy aimed at navigating around Canada's sovereign immunity.\\n\\nIt was, instead, the only claim that Merlini could bring against\\n\\nher employer for the workplace injury that she suffered under the\\n\\nstatutory framework established by the Massachusetts legislature\\n\\nfor permitting employees to seek redress for such injuries from\\n\\ntheir employers. That framework has, as one of its express aims,\\n\\nthe goal of incentivizing employers to comply with the law's\\n\\nworker's compensation requirement so that employees are ensured\\n\\nadequate coverage in situations where they are injured during the\\n\\ncourse of their employment. See In re Opinion of the Justices, 34\\n\\nN.E.2d at 543-44 (describing the \\\"manifest[] . . . purpose\\\" of\\n\\nchapter 152 as \\\"leav[ing] non-subscribing employers in such a\\n\\ndisadvantageous position that hardly any employer could afford not\\n\\nto accept the insurance provisions of the act\\\").\\n\\n\\n - 20 -\\n\\n Thus, even if we were to accept that the gravamen of\\n\\nMerlini's complaint does not encompass Canada's choice to forgo\\n\\nobtaining the requisite insurance, we still would find that the\\n\\n\\\"commercial activity\\\" exception applies. And that is because the\\n\\nconduct on which her claim is based cannot be divorced from her\\n\\n\\\"employment relationship\\\" with Canada.\\n\\n In so deciding, though, we emphasize that we reach this\\n\\nconclusion because Merlini is a United States citizen -- and not\\n\\na citizen of Canada -- whom Canada employed to work for it as\\n\\nclerical staff in the United States. Accordingly, Merlini is just\\n\\nthe type of employee whose employment by a foreign state Congress\\n\\nidentified as an example of \\\"commercial activity\\\" by a foreign\\n\\nstate. See H. Rep. No. 94-1487, at 16 (1976), reprinted in 1976\\n\\nU.S.C.C.A.N. 6604, 6615. Nor does Canada argue that there is\\n\\nanything about Merlini's duties that supports a different\\n\\nconclusion. We thus do not mean to suggest that the outcome would\\n\\nbe the same if Merlini's position were not purely \\\"clerical.\\\" See\\n\\nKato v. Ishihara, 360 F.3d 106, 110-14 (2nd Cir. 2004)\\n\\n(characterizing \\\"product promotion for Japanese companies\\\" as\\n\\n\\\"governmental\\\" and, therefore, noncommercial); Butters v. Vance\\n\\nIntern., Inc., 225 F.3d 462, 465 (4th Cir. 2004) (characterizing\\n\\n\\\"[p]roviding security for the royal family\\\" of Saudi Arabia as\\n\\n\\\"sovereign\\\" and, therefore, noncommercial).\\n\\n\\n\\n\\n - 21 -\\n\\n C.\\n\\n We turn, then, to Canada's contention, which it also\\n\\nmade to the District Court, that \\\"[t]he circumstances of\\n\\n[Merlini's] employment, and whether Canada could or should have\\n\\nprevented the alleged accident,\\\" are \\\"incidental and immaterial\\n\\nunder [Merlini's] theory of the claim.\\\" Canada points to the fact\\n\\nthat Merlini is relying in bringing her claim on chapter 152 § 66,\\n\\nwhich provides that \\\"[a]n employer is liable in tort to an employee\\n\\nwithout proof of negligence if the employer is required to maintain\\n\\nworkers' compensation insurance and fails to do so (or fails to\\n\\nbecome a licensed self-insurer) . . . .\\\" Thorson v. Mandell, 525\\n\\nN.E.2d 375, 377 (Mass. 1988).\\n\\n Canada argues that Merlini's reliance on § 66 is of\\n\\ncritical importance in determining the gravamen of her complaint.\\n\\nCanada contends that, due to her reliance on that provision of\\n\\nchapter 152, Merlini is necessarily bringing a claim that is \\\"based\\n\\non\\\" \\\"how Canada provides workers' compensation benefits,\\\" given\\n\\nthat her claim necessarily depends on the fact that Canada chose\\n\\nto compensate her through a means that does not qualify an employer\\n\\nas \\\"insured\\\" under chapter 152.4 (Emphasis added).\\n\\n\\n\\n\\n 4\\n Notably, Canada does not dispute the fact that this activity\\nwas conducted by the Canadian government, nor does it dispute that\\nit was performed in the United States.\\n\\n\\n - 22 -\\n\\n The District Court appeared, at least at points, to agree\\n\\nwith Canada that the conduct that we must assess to determine\\n\\nwhether it is \\\"commercial\\\" in nature is Canada's \\\"decision to\\n\\nprovide benefits directly under its own [national workers'\\n\\ncompensation insurance] system.\\\" In particular, the District\\n\\nCourt, after describing \\\"[t]he determinative question\\\" at the\\n\\nfirst step of the inquiry as being \\\"whether [Canada's] decision\\n\\nnot to purchase workers' compensation insurance is commercial in\\n\\nnature,\\\" ultimately concluded that Canada's \\\"decision to provide\\n\\nits own benefits does not fall under the commercial activit[y]\\n\\nexception because the decision to create and organize a workers'\\n\\ncompensation program is sovereign in nature.\\\" Merlini, 280 F.\\n\\nSupp. 3d at 257 (emphasis added).\\n\\n The State Department, in its amicus brief, also endorsed\\n\\nthis position as an alternative to its argument that the gravamen\\n\\nof Merlini's claim is more appropriately characterized as a\\n\\n\\\"noncommercial tort.\\\" The Department contends that \\\"Canada opted\\n\\nout of the Massachusetts workers' compensation system in a manner\\n\\navailable exclusively to sovereigns -- by enacting a statute\\n\\ncreating an alternate and uniform compensation regime for all\\n\\nCanadian employees, wherever in the world they might be.\\\"\\n\\n But, while Canada and the District Court are right that\\n\\nMerlini's claim does rely on § 66, nothing in § 66, or, for that\\n\\nmatter, the whole of chapter 152, makes how an \\\"uninsured\\\" employer\\n\\n\\n - 23 -\\n\\nchooses to compensate an injured employee of any relevance to a\\n\\nchapter 152 claim for damages against that employer. Chapter 152\\n\\nrequires, in relevant part, only that an employee must show \\\"that\\n\\n[the employer] had to carry worker's [sic] compensation insurance\\\"\\n\\nfor an employee and \\\"that [the employer] did not carry it.\\\" Beath\\n\\nv. Nee, 74 Mass. App. Ct. 1119, 1119 (2009) (unpublished). The\\n\\nstatute does not require any showing regarding what alternative\\n\\nmeans, if any, the employer may have used to compensate the\\n\\nemployee once the employee has shown that the employer was not\\n\\ninsured within the meaning of chapter 152. Thus, while we must\\n\\n\\\"zero[] in on the core\\\" of her claim, Sachs, 136 S. Ct. at 396,\\n\\nand while we may not unduly seize upon merely one element of her\\n\\nclaim, see id. at 394-96, Merlini's claim is in no sense \\\"based\\n\\non\\\" Canada's decision to compensate her through its own national\\n\\nworkers' compensation system. See Sachs, 136 S. Ct. at 395\\n\\n(explaining that \\\"a court should identify . . . those elements\\n\\n. . . that, if proven, would entitle a plaintiff to relief, . . .\\n\\nand the gravamen of the complaint\\\" (internal citations omitted)).\\n\\n That is not to say, though, that we reject Canada's\\n\\ncontention that its decision to forgo insurance forms part of what\\n\\nmay be understood to be the gravamen of Merlini's claim. We may\\n\\nassume that it does. Cf. Nelson, 507 U.S. at 358 n.4. But, even\\n\\nif we do, we cannot ignore that Canada failed to obtain what\\n\\nMassachusetts courts describe as \\\"workers' compensation\\n\\n\\n - 24 -\\n\\ninsurance,\\\" see LaClair v. Silberline Mfg. Co., Inc., 393 N.E.2d\\n\\n867, 869 (Mass. 1979), and that Merlini's claim is based on the\\n\\nfact that she is an employee who was injured during the course of\\n\\nher employment while her employer failed to possess that type of\\n\\ninsurance. See El-Hadad, 496 F.3d at 663 (declining to divorce\\n\\nthe conduct on which a breach of contract claim was based -- the\\n\\nbreach -- from the \\\"employment context\\\" in which it occurred).\\n\\nThus, even accepting that the gravamen of Merlini's claim relates\\n\\nto Canada's failure to obtain the requisite insurance, our inquiry\\n\\ninto whether it is based on \\\"commercial activity\\\" would require us\\n\\nto examine whether that failure -- given the employment context in\\n\\nwhich it occurred -- constitutes \\\"commercial activity.\\\"\\n\\n In so doing, we must keep in mind that the\\n\\ncharacterization of conduct as \\\"commercial activity\\\" turns on its\\n\\n\\\"nature\\\" rather than its \\\"purpose.\\\" 28 U.S.C. § 1603(d). Thus,\\n\\na sovereign's conduct constitutes \\\"commercial activity\\\" if \\\"the\\n\\nparticular actions that the foreign state perform[ed] (whatever\\n\\nthe motive behind them) [were] the type of actions by which a\\n\\nprivate party engages in 'trade and traffic or commerce,'\\\" Fagot\\n\\nRodriguez, 297 F.3d at 6 (alterations in original) (quoting\\n\\nWeltover, 504 U.S. at 614). Applying that test, we conclude that\\n\\nCanada's employment of Merlini without obtaining the requisite\\n\\ninsurance is properly deemed to be \\\"commercial activity,\\\" at least\\n\\ngiven that Merlini is a United States citizen whom Canada employed\\n\\n\\n - 25 -\\n\\nin Boston as clerical staff and that she seeks recovery for the\\n\\ninjury she suffered while performing her clerical duties.5\\n\\n 1.\\n\\n We start by considering whether, in general, an\\n\\nemployer's failure, in employing its workers, to be insured within\\n\\nthe meaning of chapter 152 is the type of conduct \\\"by which a\\n\\nprivate party engages in 'trade and traffic or commerce.'\\\" Fagot\\n\\nRodriguez, 297 F.3d at 6 (quoting Weltover, 504 U.S. at 614). We\\n\\nhave little doubt that it is.\\n\\n Private employers in Massachusetts must regularly decide\\n\\nwhether, in employing their workers, they should obtain the kind\\n\\nof insurance that chapter 152 contemplates or whether they instead\\n\\nshould take the risk of going bare. See, e.g., Brown v. Leighton,\\n\\n434 N.E.2d 176 (Mass. 1982) (uninsured taxicab driver employer);\\n\\nBarrett v. Transformer Serv., Inc., 374 N.E.2d 1325 (Mass 1978)\\n\\n(uninsured transformer service company employer); Truong v. Wong,\\n\\n775 N.E.2d 405 (Mass. App. Ct. 2002) (uninsured tofu manufacturing\\n\\n\\n\\n\\n 5 Although we recognize that courts are instructed to give\\n\\\"special attention\\\" to the State Department's views on matters of\\nforeign immunity, see Jam v. Int'l Finance Corp., 139 S. Ct. 759,\\n770-71 (2019) (quoting Bolivarian Republic of Venezuela v.\\nHelmerich & Payne Int'l. Drilling Co., 137 S. Ct. 1312, 1320\\n(2017)), we are aware of no authority that would instruct us to\\nadopt the Department's views if we conclude -- as we do\\nhere -- that they would have us run afoul of the statutory\\ninstruction that we not permit the purposes behind foreign state\\nactions to serve as proxies for the nature of those actions. 28\\nU.S.C. § 1603(d); Weltover, 504 U.S. at 614.\\n\\n\\n - 26 -\\n\\nplant employer). That decision by employers about their approach\\n\\nto insuring themselves against their employees' workplace injuries\\n\\nimpacts the overall financial wellbeing of the employers'\\n\\nbusinesses and generally concerns parties (namely, their\\n\\nbusinesses' employees) who have commercial expectations about the\\n\\nrecourse that they will have against their employers in the event\\n\\nthat they suffer a workplace injury. See, e.g., Truong, 775 N.E.2d\\n\\nat 408 (establishing that the corporation president did not\\n\\npurchase workers' compensation insurance because it was \\\"too\\n\\nexpensive\\\"); see also Rush-Presbyterian-St. Luke’s Med. Ctr. v.\\n\\nHellenic Republic, 877 F.2d 574, 580-81 (7th Cir. 1989) (describing\\n\\nthe commercial obligations that arise out of traditionally\\n\\nprivate, third-party transactions).6\\n\\n In recognizing the commercial nature of this choice by\\n\\na business to go bare in employing someone, we do not mean to\\n\\nquestion whether Canada was in so \\\"choosing\\\" -- while nonetheless\\n\\nemploying Merlini, a United States citizen, as a clerical worker\\n\\n\\n\\n\\n 6\\n Of course, it may be that, in some instances, a private\\nbusiness's failure to become insured within the meaning of chapter\\n152 is less the product of a commercial choice than a commercial\\noversight, see, e.g., O'Dea v. J.A.L., Inc., 569 N.E.2d 841 (Mass.\\nApp. Ct. 1991) (employer alleged to be uninsured due to a policy\\nlapse), especially given how disadvantageous such a decision would\\nappear to be for the employer. But, such an oversight still takes\\nplace in the course of the business's employment of its workers\\nand in parallel with its business judgments about how to protect\\nagainst the commercial losses that might be incurred in consequence\\nof those workers suffering a workplace injury.\\n\\n\\n - 27 -\\n\\nin its consulate in Boston -- motivated by what it characterizes\\n\\nas its sovereign obligation to provide its employees protection\\n\\nthrough its own national workers' compensation system. In fact,\\n\\nCanada asserts that it has no legal authority -- given the\\n\\nlimitations that it contends that Canadian law imposes -- to act\\n\\notherwise. But, in light of the Supreme Court's decision in\\n\\nWeltover, it is clear that the \\\"motive behind\\\" Canada's conduct in\\n\\nemploying Merlini without obtaining the requisite insurance is not\\n\\ngermane to the question of whether the activity of doing just that\\n\\nis \\\"commercial\\\" for purposes of the FSIA's \\\"commercial activity\\\"\\n\\nexception. Fagot Rodriguez, 297 F.3d at 6 (quoting Weltover, 504\\n\\nU.S. at 614); see also 28 U.S.C. § 1603(d).\\n\\n In Weltover, the plaintiffs brought a breach of contract\\n\\nclaim against Argentina after it defaulted on its bonds. Weltover,\\n\\n504 U.S. at 610. Argentina argued in response that foreign\\n\\nsovereign immunity protected it from the suit, pointing to the\\n\\nfact that the bonds were not issued for the ordinary commercial\\n\\npurpose of \\\"raising capital or financing acquisitions\\\" but instead\\n\\nas instruments for refinancing sovereign debt. Id. at 616.\\n\\nAccording to Argentina, these refinancing measures were required\\n\\nas part of the government's program for addressing its domestic\\n\\ndebt crisis. Id. Argentina thus argued that its decision not to\\n\\nrepay the bonds was part of a governmental policy undertaken for\\n\\nsovereign rather than commercial reasons and therefore that the\\n\\n\\n - 28 -\\n\\nclaim was based on activity that could not qualify as commercial\\n\\nfor FSIA purposes. Id. at 616-17.\\n\\n The Supreme Court rejected Argentina's contention. Id.\\n\\nat 617. According to the Court, Argentina had defaulted on what\\n\\nit termed \\\"garden-variety debt.\\\" Id. at 615. Argentina's bonds,\\n\\nlike private bonds, were negotiable, were traded on international\\n\\nmarkets, and came with the promise of future repayment. Id. Thus,\\n\\nfor purposes of determining whether Argentina's default on those\\n\\nbonds was \\\"commercial activity,\\\" the Court explained that\\n\\nArgentina's participation in the bond market was of a type that\\n\\nwas commercial in nature and thus that it was \\\"irrelevant why\\n\\nArgentina participated in the bond market.\\\" Id. (emphasis in\\n\\noriginal).\\n\\n Canada, of course, did not issue bonds. But, it did\\n\\nemploy a United States citizen as clerical staff in its Boston\\n\\nconsulate, thereby engaging in conduct that it does not dispute\\n\\nqualifies as being \\\"commercial\\\" in nature. Nor does Canada dispute\\n\\nthat private businesses, when employing such clerical workers, are\\n\\nsubject to the very same obligation to obtain insurance in\\n\\ncompliance with chapter 152 -- insofar as they wish to avoid being\\n\\nsubjected to personal injury suits such as Merlini brings -- or\\n\\nthat their employment of such workers without having such\\n\\ninsurance, as applied to those businesses, constitutes an activity\\n\\nthat is commercial in nature.\\n\\n\\n - 29 -\\n\\n We thus do not see how Canada's maintenance of a\\n\\n\\\"garden-variety\\\" employment relationship with Merlini while not\\n\\nmaintaining such insurance is an activity that is any less\\n\\n\\\"commercial\\\" in nature than was Argentina's default on\\n\\n\\\"garden-variety\\\" debt in Weltover. In each case, the foreign state\\n\\ncan point to a sovereign \\\"purpose\\\" in acting as it did. But in\\n\\nneither case does that reason speak to the \\\"nature\\\" of the foreign\\n\\nsovereign's conduct.7 As a result, Canada provides no more reason\\n\\n\\n 7 The dissent argues that, in attempting to identify the\\n\\\"nature\\\" of Merlini's claim, we ignore the \\\"outward form of\\n[Canada's] conduct,\\\" which the dissent characterizes as \\\"informing\\nMerlini that she was subject to the GECA . . . , compensating her\\npursuant to the GECA's benefits scheme after she made a claim of\\ninjury, and not continuing her benefits when Canada's Workplace\\nSafety and Insurance Board (WSIB) determined after a full process\\nthat Merlini was ready to return to work.\\\" However, none of these\\nactions constitutes the \\\"outward conduct\\\" that forms the basis of\\nMerlini's claim against the Canadian government. The only \\\"outward\\nconduct\\\" on Canada's part that Merlini needs to prove to succeed\\nin her claim is defined by the elements of the claim that § 66\\npermits her to bring. Those elements make clear that she must\\nprove that Canada was her employer in Massachusetts when she\\nsuffered the workplace injury for which she seeks recompense and\\nthat Canada did not comply with the state's workers' compensation\\nrequirements while having her in its employ. In fact, had Canada\\nregistered as a self-insurer in compliance with chapter 152, it\\ncould have performed each of the \\\"outward\\\" actions that the dissent\\noutlines and Merlini would not have had a claim that she could\\nbring under Massachusetts law. This point shows that the \\\"outward\\nconduct\\\" described by the dissent is simply immaterial to the claim\\nthat Merlini brings here, such that her claim can in no sense be\\nunderstood to be \\\"based on\\\" it. She has a cause of action under\\nMassachusetts law against Canada for the workplace injury that she\\nsuffered only because Canada employed her and, as her employer,\\ndid not comply with the state's workers' compensation\\nrequirements. Because that kind of conduct is the kind of conduct\\nthat private employers engage in regularly it is conduct that is\\n\\n\\n\\n - 30 -\\n\\nfor us to conclude that its conduct is \\\"sovereign\\\" rather than\\n\\n\\\"commercial\\\" than Argentina provided for the Court in Weltover.\\n\\n Moreover, we note that, in deciding Weltover, the\\n\\nSupreme Court relied in part on the Seventh Circuit's reasoning in\\n\\nRush-Presbyterian. Weltover, 504 U.S. at 614. There, Greece had\\n\\nentered into contracts with American doctors but then only\\n\\npartially paid them for their services. Rush-Presbyterian, 877\\n\\nF.2d at 575-76. The Greek government pointed out that it had\\n\\nassumed these obligations as part of its comprehensive scheme to\\n\\nprovide healthcare to all of its citizens. Id. at 580. According\\n\\nto Greece, the fact that its healthcare system was not\\n\\nprofit-seeking, was funded by taxpayers, and operated through its\\n\\nown set of administrative proceedings, placed Greece's activity in\\n\\nretaining the doctors' services -- and thus its alleged failure to\\n\\npay them fully for those services -- squarely in the realm of\\n\\nsovereign rather than \\\"commercial activity.\\\" Id. at 580-81.\\n\\n The Seventh Circuit disagreed. The court made clear\\n\\nthat \\\"private parties in the United States enter such agreements\\n\\nroutinely\\\" and that \\\"the 'basic exchange' of money for health care\\n\\nservices is the same\\\" whether the payer is a government or a\\n\\nprivate employer. Id. at 581. The court thus ruled that Greece's\\n\\n\\n\\n\\nproperly characterized as \\\"commercial activity,\\\" at least given\\nMerlini's particular attributes as a United States citizen working\\nin the Boston consulate as clerical staff.\\n\\n\\n - 31 -\\n\\nreasons for characterizing its conduct as noncommercial related\\n\\nonly to the purpose underlying Greece's decision to enter into the\\n\\ncontracts with the doctors and then not to pay them fully, rather\\n\\nthan to the nature of the decision to enter into those contracts\\n\\nor to breach them. Id. at 580. And, for that reason, the Seventh\\n\\nCircuit rejected Greece's contention that the \\\"commercial\\n\\nactivity\\\" exception did not apply.\\n\\n Here, Canada, like Greece, entered into a contract for\\n\\ncommercial services -- in this case, in the form of its employment\\n\\ncontract with Merlini, given that Canada does not dispute the\\n\\n\\\"commercial\\\" nature of Canada's employment of her as clerical staff\\n\\nat the consulate. And, then, after having done so, Canada, like\\n\\nGreece, failed to do what state law required of employers engaged\\n\\nin such typical commercial employment relationships -- namely, in\\n\\nthis case, to be \\\"insured\\\" within the meaning of chapter 152 in\\n\\nemploying Merlini.\\n\\n To be sure, the existence of Canada's own national\\n\\nworkers' compensation system may explain Canada's motive for\\n\\nmaking a type of decision regularly made by private commercial\\n\\nactors. But, the existence of the foreign sovereign's system of\\n\\nsocial insurance in Rush-Presbyterian helped to explain the\\n\\npurpose behind that sovereign's failure to undertake a duty\\n\\ncommonly required of employers engaged in commercial employment\\n\\n\\n\\n\\n - 32 -\\n\\nrelationships. Yet, Rush-Presbyterian makes clear that such a\\n\\nfact does not thereby alter the commercial nature of that failure.\\n\\n 2.\\n\\n Notwithstanding Weltover and Rush-Presbyterian, Canada\\n\\ncontends that this case is actually more closely analogous to both\\n\\nJungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020\\n\\n(D.C. Cir. 1997) and Anglo-Iberia Underwriting Mgmt. v. P.T.\\n\\nJamsostek, 600 F.3d 171 (2d Cir. 2010), in which the \\\"commercial\\n\\nactivity\\\" exception was held not to apply. See Jungquist, 115\\n\\nF.3d at 1024; Anglo-Iberia, 600 F.3d at 176. Neither case,\\n\\nhowever, supports Canada's position.\\n\\n In Jungquist, the D.C. Circuit held that the \\\"commercial\\n\\nactivity\\\" exception was inapplicable to claims brought against\\n\\nofficials of the government of the United Arab Emirates for actions\\n\\nthat those officials took in administering the Abu Dhabi medical\\n\\nprogram in compliance with the Crown Prince Court's orders. 115\\n\\nF.3d at 1020. Specifically, the court determined that the\\n\\nofficials engaged in no \\\"commercial activity\\\" with the plaintiffs,\\n\\nbut instead \\\"fulfilled [the government's] obligations to the\\n\\n[plaintiffs] by performing their official tasks as\\n\\nadministrators.\\\" Id. at 1030.\\n\\n In Anglo-Iberia, the Second Circuit held that the\\n\\n\\\"commercial activity\\\" exception did not apply to claims against\\n\\nthe Indonesian government for a fraud perpetrated by its employees\\n\\n\\n - 33 -\\n\\nin their capacities as administrators of the state-owned social\\n\\nsecurity insurer, Jamsostek. 600 F.3d at 174. The court noted\\n\\nthat providing insurance is an activity that both the government\\n\\nand private markets perform. But, the court explained, Jamsostek\\n\\ndid not operate like a private insurer and therefore its wrongful\\n\\nadministration of that government-run insurance program did not\\n\\nqualify as \\\"commercial activity.\\\" Id. at 176.\\n\\n The reason that neither Jungquist nor Anglo-Iberia aids\\n\\nCanada's cause is simple. In each of those cases, the claims at\\n\\nissue were based on the defendants' administration of the\\n\\ngovernment programs at issue independent of any conduct by the\\n\\nforeign state as the employer of the plaintiffs, such that it was\\n\\nthe manner of the administration of those programs -- and not the\\n\\nmanner of the foreign state's employment of the plaintiffs -- that\\n\\nwas alleged to be wrongful.\\n\\n Merlini's claim is quite distinct. Even on Canada's\\n\\naccount, insofar as Merlini's claim is based on more than Canada's\\n\\nemployment of her at the consulate or the conduct that caused the\\n\\ninjury that she suffered there, her claim is still based on the\\n\\nCanadian government's decision to employ her for clerical work at\\n\\nthe Boston consulate while not having the insurance contemplated\\n\\nby chapter 152. Thus, her claim is not based -- as the claims at\\n\\nissue in Jungquist and Anglo-Iberia were -- on any allegation that\\n\\nforeign state officials acted wrongfully in administering a\\n\\n\\n - 34 -\\n\\ngovernmental program independent of the foreign state's employment\\n\\nof the plaintiff in circumstances in which such employment\\n\\nconcededly constitutes \\\"commercial activity.\\\"\\n\\n In that respect, Merlini's claim is no different from\\n\\nthe claims that other employees have brought against private\\n\\nbusiness employers that, like Canada, have not insured themselves\\n\\nin the manner chapter 152 specifies for the injuries that their\\n\\nworkers may suffer in the workplace. The existence of Canada's\\n\\nown nationally administered program for compensating workers like\\n\\nMerlini, in other words, only provides the justification for the\\n\\nconduct by Canada on which Merlini's claim is based. But that\\n\\njustification speaks to Canada's \\\"purpose\\\" in engaging in that\\n\\nconduct and not to the \\\"nature\\\" of the conduct itself.\\n\\n In fact, if Canada and the dissent's views prevailed, we\\n\\nstruggle to understand what recovery for workplace harm -- whether\\n\\nconcerning wages, benefits, or discriminatory treatment -- an\\n\\nemployee of a foreign government, who, like Merlini, is a United\\n\\nStates citizen employed as a clerical worker, could seek from the\\n\\nemployer under the \\\"commercial activity\\\" exception recognized in\\n\\nthe FSIA. Yet, it is quite clear that Congress, in enacting the\\n\\n\\\"commercial activity\\\" exception to foreign state immunity in the\\n\\nFSIA, contemplated that some employees of foreign governments\\n\\nwould be entitled to recover for workplace harm against their\\n\\nforeign state employer -- namely, those employees that, like\\n\\n\\n - 35 -\\n\\nMerlini, are United States citizens employed in clerical\\n\\npositions. See H. Rep. No. 94-1487, at 16 (1976), reprinted in\\n\\n1976 U.S.C.C.A.N. 6604, 6615 (describing \\\"[a]ctivities such as a\\n\\ngovernment's . . . employment or engagement of laborers, clerical\\n\\nstaff or public relations or marketing agents . . . [as] those\\n\\nincluded within the definition [of commercial activity]\\\"). Nor\\n\\nare we aware of any precedent supporting the notion that employees\\n\\nlike Merlini lose their right to recover against their foreign\\n\\nstate employer whenever that foreign employer establishes rules\\n\\ndifferent from ours for protecting them.8\\n\\n 3.\\n\\n Finally, Canada contends that a ruling that it must\\n\\ncomply with the MWCA's insurance requirements or be stripped of\\n\\nmany common law defenses in any suit claiming damages for a\\n\\n\\n\\n\\n 8 The dissent relatedly argues that the \\\"commercial activity\\\"\\nexception should not apply to Canada in this context because, due\\nto Canada's own workers' compensation law, the government was not\\nallowed to comply with Massachusetts' insurance requirements under\\nchapter 152. We fail to see how Canada's legislative prohibition\\nagainst obtaining the type of insurance that would qualify Canada\\nas being \\\"insured\\\" for purposes of chapter 152 renders the act of\\nnot acquiring compliant insurance any less \\\"commercial\\\" in nature.\\nAs we have already argued, while Canada's sovereign workers'\\ncompensation regime clearly provides the motivation for its\\ndecision not to acquire compliant insurance under chapter 152,\\nthat motivation does not strip Canada's decision not to provide\\nthe requisite insurance of its \\\"commercial\\\" character, any more\\nthan the presidential decree directing Argentina to default on its\\nbonds stripped that act of its \\\"commercial\\\" character in Weltover\\nby way of constituting executive action. See Weltover, 504 U.S.\\nat 610.\\n\\n\\n - 36 -\\n\\nworkplace injury brought by an employee against the employer would\\n\\n\\\"produce an absurd result.\\\" Such a conclusion, Canada contends,\\n\\nwould essentially force Canada to subject itself to having\\n\\nMassachusetts assess its solvency through semi-annual audits and\\n\\nvarious deposit requirements. According to Canada, that kind of\\n\\nintrusion into its finances \\\"would violate basic principles of\\n\\ncomity\\\" that foreign sovereign immunity exists to protect. Thus,\\n\\nfor this reason, too, Canada contends, the \\\"commercial activity\\\"\\n\\nexception cannot be construed to apply here.\\n\\n We may, for present purposes, set aside the fact, which\\n\\nCanada does not contest, that some foreign consulates as well as\\n\\nthe Quebec Government Office in Boston, which is a political\\n\\nsubdivision of Canada for the purposes of FSIA applicability,\\n\\napparently have obtained the insurance required by chapter 152.\\n\\nThe more fundamental point is that Canada's concerns about \\\"comity\\\"\\n\\ndo not provide a basis for concluding that it is immune from suit\\n\\nin this case.\\n\\n As Canada rightly points out, the \\\"FSIA's objective is\\n\\nto give protection from the inconvenience of suit as a gesture of\\n\\ncomity.\\\" Bolivarian Republic of Venezuela v. Helmerich & Payne\\n\\nInt’l Drilling Co., 137 S. Ct. 1312, 1322 (2017) (internal\\n\\nquotations omitted) (noting that the FSIA was drafted with comity\\n\\nconcerns in mind). But, by including the \\\"commercial activity\\\"\\n\\nexception in the FSIA, Congress made clear that those concerns do\\n\\n\\n - 37 -\\n\\nnot provide a reason to extend that protection to foreign states\\n\\nwith respect to a suit that the \\\"commercial activity\\\" exception\\n\\nencompasses. Thus, an appeal to comity cannot in and of itself\\n\\nexplain why a foreign state's conduct that is encompassed by that\\n\\nexception should be treated as if it is not.\\n\\n Perhaps there is a case to be made that such comity\\n\\nconcerns are relevant to a merits determination -- as a matter of\\n\\nMassachusetts or federal law -- that chapter 152's \\\"insurance\\\"\\n\\nrequirement does not apply to a foreign sovereign in the same way\\n\\nthat it applies to private employers. But, FSIA immunity applies\\n\\nonly if, under the analysis that we must apply, see Weltover, 504\\n\\nU.S. at 614; Fagot, 297 F.3d at 5–6, the conduct on which Merlini's\\n\\nclaim is based is not \\\"commercial\\\" in nature. And, for the reasons\\n\\nthat we have explained, the conduct here is commercial in nature,\\n\\neven though it may have been undertaken for sovereign reasons.\\n\\nCanada's appeal to comity, therefore, adds nothing to its argument,\\n\\nwhich we otherwise reject, that the \\\"commercial activity\\\"\\n\\nexception does not apply here. And thus, Canada's comity concerns\\n\\nprovide no basis for concluding that Canada enjoys an immunity\\n\\nfrom this suit pursuant to the FSIA such that no federal court\\n\\neven has jurisdiction to make a merits judgment.\\n\\n In its amicus brief, the State Department advances many\\n\\nsimilar \\\"comity\\\" concerns to those presented by Canada. But,\\n\\nalthough we give \\\"special attention\\\" to the State Department's\\n\\n\\n - 38 -\\n\\nviews on matters of foreign policy, see Jam, 139 S. Ct. at 770-71,\\n\\nwe decline to place much weight on those views here. The\\n\\nDepartment itself does not view recovery by an employee like\\n\\nMerlini under § 66 against a foreign state employer to be\\n\\nnecessarily adverse to United States foreign policy interests,\\n\\ngiven that it argues to us that Canada might lack immunity from\\n\\nMerlini's claim under the FSIA's \\\"noncommercial tort\\\" exception,\\n\\n28 U.S.C. § 1605(a)(5). And, as we have explained, the Department\\n\\nsets forth no basis in the legislative history or text of the\\n\\nFSIA -- or in any precedent construing it -- for finding that\\n\\nCanada is immune from a suit under § 66 that is brought by a\\n\\nclerical worker like Merlini.\\n\\n IV.\\n\\n Having determined that the FSIA does not prohibit\\n\\nMerlini's suit, Canada argues that we should nevertheless affirm\\n\\nthe District Court's dismissal on a ground not reached by the\\n\\nDistrict Court. Specifically, Canada argues that Merlini has\\n\\nfailed to state a claim upon which relief can be granted, see Fed.\\n\\nR. Civ. P. 12(b)(6), because the DIA Board's ruling operates to\\n\\npreclude Merlini's suit.\\n\\n The parties agree that we apply Massachusetts issue\\n\\npreclusion law. In re Baylis, 217 F.3d 66, 70-71 (1st Cir. 2000).\\n\\nCanada contends that the DIA Board's conclusion that \\\"Canada is\\n\\nnot uninsured in violation of [the MWCA]\\\" should be entitled to\\n\\n\\n - 39 -\\n\\npreclusive effect and thus bars Merlini's \\\"relitigation\\\" of that\\n\\nissue in federal court.\\n\\n In order for an issue to have preclusive effect in a\\n\\nlater proceeding under Massachusetts law, the following elements\\n\\nmust be present: (1) there was a final judgment on the merits in\\n\\nthe prior adjudication; (2) the party against whom preclusion is\\n\\nasserted was a party to the prior adjudication; and (3) the issue\\n\\nin the prior adjudication was identical to the issue in the current\\n\\nadjudication and essential to the earlier judgment. See Kobrin v.\\n\\nBd. of Registration in Med., 832 N.E.2d 628, 634 (Mass. 2005); see\\n\\nalso In re Baylis, 217 F.3d at 71. An order from a state agency\\n\\nis considered to be a final judgment for issue preclusion purposes,\\n\\nhowever, only if it is unappealed. See, e.g., Almeida v. Travelers\\n\\nIns. Co., 418 N.E.2d 602, 605 (Mass. 1981) (noting that the\\n\\ndetermination of an agency is not binding for preclusion purposes\\n\\nafter it has been appealed). And here, Merlini appealed the DIA\\n\\nBoard's ruling to the MAC. Thus, it is to the MAC's ruling that\\n\\nwe must look.\\n\\n The MAC's ruling, however, is of no help to Canada's\\n\\ncontention that Merlini's claim must be dismissed on issue\\n\\npreclusion grounds. In affirming the DIA Board's order, the MAC\\n\\ndid so only on one ground -- namely, that Merlini was not entitled\\n\\nto recover from the WCTF because she was eligible for benefits in\\n\\nanother jurisdiction. The MAC expressly stated that it was not\\n\\n\\n - 40 -\\n\\nruling on whether Canada was subject to the jurisdiction of\\n\\nMassachusetts or whether the consulate was an \\\"uninsured\\\" employer\\n\\nin violation of chapter 152. For that reason, the MAC's \\\"judgment\\n\\nis conclusive [only] as to the first determination.\\\" In re Baylis,\\n\\n217 F.3d at 71. And, given that Canada makes no argument, just as\\n\\nit made none to the District Court, that the judgment as to the\\n\\nissue that the MAC did decide is preclusive of Merlini's claim,\\n\\nCanada's argument for dismissal pursuant to Federal Rule of Civil\\n\\nProcedure 12(b)(6) on the grounds of issue preclusion fails. See\\n\\nP.R. Tel. Co., Inc. v. San Juan Cable LLC, 874 F.3d 767, 770 (1st\\n\\nCir. 2017), cert. denied, 138 S. Ct. 1597 (2018) (holding that any\\n\\nargument not raised in the party's brief is deemed waived).\\n\\n V.\\n\\n For the foregoing reasons we reverse the District\\n\\nCourt's grant of Canada's motion to dismiss and remand the case\\n\\nfor further proceedings. The parties shall bear their own costs.\\n\\n\\n\\n -Dissenting Opinion Follows-\\n\\n\\n\\n\\n - 41 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405223/\", \"author_raw\": \"BARRON, Circuit Judge\"}, {\"author\": \"LYNCH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"LYNCH, Circuit Judge, dissenting. In this important\\n\\ncase affecting this country's foreign relations, I respectfully\\n\\ndisagree with my colleagues. The majority holds that Canada is\\n\\nstripped of its sovereign immunity under the commercial activity\\n\\nexception to the Foreign Sovereign Immunities Act (\\\"FSIA\\\"), 28\\n\\nU.S.C. § 1602 et seq. I disagree.\\n\\n This suit is based on Merlini's disagreement with the\\n\\ndecision of her employer, the Canadian consulate in Boston, not to\\n\\nprovide her with extended workers' compensation benefits, having\\n\\nprovided her with basic benefits. That decision by Canada is\\n\\nrequired by a Canadian legislative act, under which Canada has\\n\\nchosen to provide its own workers' compensation system to all\\n\\nconsulate employees, regardless of nationality. I believe\\n\\nCanada's actions are protected from suit by the FSIA. Even if the\\n\\nsuit could be viewed as based not on a legislative act, but only\\n\\non an administrative act by Canada in its decision not to give\\n\\nMerlini an extension on her benefits, Canada is still protected by\\n\\nsovereign immunity.\\n\\n Further, I think the policy implications of the\\n\\nmajority's view are grave. What is sauce for the Canadian goose\\n\\nunder the majority's holding will prove to be a bitter sauce for\\n\\nthe American gander. The majority view will, I believe, operate\\n\\nto the detriment of the United States. Compelling Canada to abide\\n\\nby Massachusetts state law, at the expense of maintaining its own\\n\\n\\n - 42 -\\n\\nworkers' compensation scheme, will redound to the harm of the U.S.\\n\\ngovernment's functions abroad, as I discuss later.\\n\\n Because a sovereign state is \\\"presumptively immune from\\n\\nthe jurisdiction of United States courts\\\" under the FSIA, Saudi\\n\\nArabia v. Nelson, 507 U.S. 349, 355 (1993), the burden falls upon\\n\\nMerlini to demonstrate that an exception applies, see Universal\\n\\nTrading & Inv. Co. v. Bureau for Representing Ukrainian Interest\\n\\nin Int'l & Foreign Courts, 727 F.3d 10, 17 (1st Cir. 2013) (citing\\n\\nVirtual Countries, Inc. v. Republic of S. Afr., 300 F.3d 230, 241\\n\\n(2d Cir. 2002)). I agree with the district court that this burden\\n\\nhas not been met. See Merlini v. Canada, 280 F. Supp. 3d 254, 258\\n\\n(D. Mass. 2017). I set out my reasons below.9\\n\\n I.\\n\\n I first consider the text and meaning of the FSIA. The\\n\\nFSIA, enacted in 1976, \\\"provides the sole basis for obtaining\\n\\njurisdiction over a foreign state in the courts of this country.\\\"\\n\\nSullivan v. Republic of Cuba, 891 F.3d 6, 9 (1st Cir. 2018)\\n\\n(quoting Argentine Republic v. Amerada Hess Shipping Corp., 488\\n\\n\\n\\n\\n 9 I do agree with, and join, the majority in rejecting the\\nState Department's arguments in its amicus brief that (1) Merlini's\\ncomplaint is based only on the negligent conduct of her fellow\\nemployee in laying the phone cord that Merlini tripped over and so\\n(2) we should vacate and remand for Merlini to make a negligence\\nclaim under the noncommercial tort exception. But, as discussed\\nlater, I agree with aspects of the State Department's brief,\\nparticularly concerning this country's activities abroad.\\n\\n\\n\\n - 43 -\\n\\nU.S. 428, 443 (1989)). According to the Supreme Court, \\\"the\\n\\n[FSIA's] manifest purpose [is] to codify the restrictive theory of\\n\\nforeign sovereign immunity.\\\" Nelson, 507 U.S. at 363.10 In a case\\n\\ncited approvingly by the Nelson Court, the Second Circuit carefully\\n\\nlaid out the scope of the restrictive theory, which safeguards\\n\\nimmunity for \\\"traditionally . . . quite sensitive\\\" actions\\n\\nincluding \\\"internal administrative acts\\\" and \\\"legislative acts.\\\"\\n\\nVictory Transp. Inc. v. Comisaria Gen. de Abastecimientos y\\n\\nTransportes, 336 F.2d 354, 360 (2d Cir. 1964). And the Nelson\\n\\nCourt quoted from a much-cited law review article by a leading\\n\\ncommentator, stating, \\\"[S]uch acts as legislation . . . cannot be\\n\\nperformed by an individual acting in his own name. They can be\\n\\nperformed only by the state acting as such.\\\" Nelson, 507 U.S. at\\n\\n362 (quoting Hersch Lauterpacht, The Problem of Jurisdictional\\n\\nImmunities of Foreign States, 28 Brit. Y.B. of Int'l L. 220, 225\\n\\n(1952)).\\n\\n Under the FSIA's commercial activity exception, a\\n\\nforeign state is not immune from suit in a case\\n\\n in which the action is based upon a commercial\\n activity carried on in the United States by\\n the foreign state; or upon an act performed in\\n the United States in connection with a\\n commercial activity of the foreign state\\n\\n 10 Indeed, just months before the passage of the FSIA, the\\nSupreme Court noted that \\\"it is fair to say that the 'restrictive\\ntheory' of sovereign immunity appears to be generally accepted as\\nthe prevailing law in this country.\\\" Alfred Dunhill of London,\\nInc. v. Republic of Cuba, 425 U.S. 682, 703 (1976).\\n\\n\\n - 44 -\\n\\n elsewhere; or upon an act outside the\\n territory of the United States in connection\\n with a commercial activity of the foreign\\n state elsewhere and that act causes a direct\\n effect in the United States.\\n\\n28 U.S.C. § 1605(a)(2).11\\n\\n As the first step in considering this exception, we must\\n\\n\\\"identify[] the particular conduct on which [Merlini's] action is\\n\\n'based' for purposes of the [FSIA].\\\" Nelson, 507 U.S. at 356.\\n\\nThis requires \\\"zero[ing] in on the core of the[] suit,\\\" OBB\\n\\nPersonenverkehr AG v. Sachs, 136 S. Ct. 390, 396 (2015), without\\n\\nfocusing merely on \\\"a single element of a claim,\\\" id. at 395.12\\n\\n\\n\\n 11 The majority states correctly that its holding on the\\ncommercial activity exception, see 28 U.S.C. § 1605(a)(2),\\n\\\"precludes the noncommercial tort exception from applying.\\\" See\\nid. § 1605(a)(5).\\n I consider the noncommercial tort exception briefly on\\nthe merits here. As the district court pointed out, the\\nnoncommercial tort exception expressly does not apply to \\\"any claim\\nbased upon the exercise or performance or the failure to exercise\\nor perform a discretionary function regardless of whether the\\ndiscretion be abused.\\\" 28 U.S.C. § 1605(a)(5)(A); see Fagot\\nRodriguez v. Republic of Costa Rica, 297 F.3d 1, 8 (1st Cir. 2002);\\nMerlini, 280 F. Supp. 3d at 258. Canada's decision to enact a\\nparticular workers' compensation scheme clearly is a discretionary\\nlegislative decision and is a decision \\\"based on considerations of\\npublic policy.\\\" Berkovitz v. United States, 486 U.S. 531, 537\\n(1988). Following the Supreme Court, we must avoid \\\"judicial\\n'second guessing' of legislative and administrative decisions\\ngrounded in social, economic and political policy through the\\nmedium of an action in tort.\\\" United States v. S.A. Empresa de\\nViacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814\\n(1984). Thus, Merlini's argument that Canada's conduct falls\\nwithin the exception for noncommercial torts is unavailing.\\n 12 In Sachs, the Court unanimously held that the commercial\\nexception did not apply to a claim concerning a grievous injury\\n\\n\\n\\n - 45 -\\n\\nThat is, a court must identify the \\\"gravamen of the complaint.\\\"\\n\\nId.\\n\\n Here, when we properly \\\"zero[] in on the core of\\n\\n[Merlini's] suit,\\\" id. at 396, we see that it was the sovereign\\n\\ndecision by Canada to enact and administer its own compensation\\n\\nscheme, including for all workers at consulates,13 that is the\\n\\nbasis for plaintiff's claim of injury. Merlini seeks more in the\\n\\nway of workers' compensation than Canada has provided. I disagree\\n\\nwith the majority's characterization of Canada's conduct as being\\n\\n\\\"an employer's failure . . . to be insured\\\" under state law, as\\n\\n\\n\\n\\nfrom a rail accident in Austria, and did not permit jurisdiction\\nover the foreign state-owned railway. 136 S. Ct. at 393. The\\nCourt rejected the Ninth Circuit's reading of Nelson -- that the\\ncommercial activity exception was properly met so long as a single\\nelement of the claim met the exception -- and said again that\\ncourts must focus on the acts of the sovereign alleged to have\\ninjured the plaintiff. \\\"[T]he mere fact that the sale of the\\nEurail pass would establish a single element of a claim is\\ninsufficient to demonstrate that the claim is 'based upon' that\\nsale for purposes of § 1605(a)(2).\\\" Id. at 395.\\n 13 Consulates, like embassies, by their operation are not\\nusual places. They embody actions by a sovereign exercising its\\nsovereign powers; the consulate here is an extension of Canada.\\nAs Canada says, the \\\"[c]onsulate's mission is to monitor and\\ninterpret political and economic issues in the New England area;\\nrepresent Canadian sovereign interests on issues such as borders,\\nsecurity, and trade; and provide consular services to Canadian\\ncitizens in New England, among other functions.\\\" I certainly do\\nnot say that the FSIA question is resolved by the fact that the\\naccident happened in a consulate and to a person employed by a\\nconsulate. But I think the majority gives insufficient attention\\nto these facts.\\n\\n\\n\\n\\n - 46 -\\n\\nthough Canada were a private employer making a discretionary,\\n\\nmarket-based choice.14 The majority concludes that this is an\\n\\nordinary commercial omission made by an employer who \\\"take[s] the\\n\\nrisk of going bare.\\\" Thus, the majority asserts that Merlini's\\n\\nclaim is \\\"in no sense 'based on' Canada's decision to compensate\\n\\nher through its own national workers' compensation scheme.\\\" In my\\n\\nview, the premise is wrong, and the conclusion is wrong.\\n\\n To see why, one need only look to Canada's Government\\n\\nCompensation Act (\\\"GECA\\\"), R.S.C. 1985, c. G-5. That Canadian\\n\\nstatute not only establishes the exclusive framework for how local\\n\\nconsulate staff, like Merlini, receive benefits, but it also sets\\n\\nforth the sole mechanism for appealing the denial of such benefits.\\n\\nAccordingly, the GECA sets forth what the government of Canada has\\n\\ndetermined, in its sovereign discretion, to be the appropriate\\n\\ncomprehensive workers' compensation scheme for all of its federal\\n\\nemployees, at home and abroad. It does not matter, as the majority\\n\\nposits, that Merlini held only an administrative position: The\\n\\nGECA clearly applies to all \\\"locally engaged\\\" employees. See id.\\n\\n§ 7(1).\\n\\n\\n\\n\\n 14 Canada argues that it does provide workers' compensation\\nand that the chapter 152 definition of \\\"uninsured\\\" or\\n\\\"self-insured\\\" employer is irrelevant to its immunity, contrary to\\nwhat the majority suggests. And Merlini's complaint argues not\\nthat the consulate was uninsured as a factual matter, but that it\\n\\\"was acting as a self-insurer without obtaining a [Massachusetts]\\nlicense.\\\"\\n\\n\\n - 47 -\\n\\n Important here, the GECA authorizes the government of\\n\\nCanada to compensate workplace injuries only through the Canadian\\n\\nConsolidated Revenue Fund (if a local fund exists in the\\n\\njurisdiction where the injury occurred), see id., or directly\\n\\nthrough the government of Canada, see id. § 7(2). The Act does\\n\\nnot authorize any other means of compensation. As such, Canada,\\n\\nas Merlini's employer, was prohibited by law from purchasing local\\n\\nMassachusetts insurance. Nothing under the FSIA required the\\n\\nCanadian consulate to flout its own Canadian laws. Contrary to\\n\\nthe majority, this issue is not, then, one of \\\"motivation,\\\" but of\\n\\na sovereign choice by Canada's legislature untethered from\\n\\ncommercial activity (unlike, for example, the issuance and\\n\\nrepayment of bonds).\\n\\n To enforce Canada's uniform compensation scheme, the\\n\\nconsulate had to forgo Massachusetts workers' compensation\\n\\ninsurance. These \\\"acts\\\" -- of enforcing the Canadian uniform\\n\\ncompensation scheme and of foregoing Massachusetts workers'\\n\\ncompensation insurance -- are the same. It is mere semantics to\\n\\ndisaggregate the two. Following the Supreme Court's\\n\\ninterpretations in Nelson15 and Sachs, then, Merlini's suit is\\n\\n\\\"based upon\\\" Canada's enforcement and administration of a uniform\\n\\n\\n 15 In Nelson, discussed further in the following section,\\nthe Supreme Court held that the suit was \\\"based upon a sovereign\\nactivity immune from the subject-matter jurisdiction of United\\nStates courts under the [FSIA].\\\" 507 U.S. at 363.\\n\\n\\n - 48 -\\n\\ncompensation scheme, and not merely one aspect of Canada's conduct\\n\\nin enforcing and administering this scheme.\\n\\n II.\\n\\n The second step of the commercial activity inquiry\\n\\nrequires determining whether the conduct that the complaint is\\n\\n\\\"based upon\\\" is commercial rather than sovereign. The FSIA defines\\n\\ncommercial activity as \\\"either a regular course of commercial\\n\\nconduct or a particular commercial transaction or act. The\\n\\ncommercial character of an activity shall be determined by\\n\\nreference to the nature of the course of conduct or particular\\n\\ntransaction or act, rather than by reference to its purpose.\\\" 28\\n\\nU.S.C. § 1603(d). Thus, courts must assess \\\"whether the particular\\n\\nactions that the foreign state performs . . . are the type of\\n\\nactions by which a private party engages in 'trade and traffic or\\n\\ncommerce.'\\\" Republic of Argentina v. Weltover Inc., 504 U.S. 607,\\n\\n614 (1992) (quoting Black's Law Dictionary (6th ed. 1990)).\\n\\nWeltover requires that the \\\"full context\\\" be considered. Id. at\\n\\n615.\\n\\n The majority asserts that Canada's conduct cannot be\\n\\nframed as a Canadian legislative directive to have and enforce its\\n\\nown workers' compensation scheme because that goes to the \\\"purpose\\\"\\n\\nof Canada's conduct, and not its \\\"nature.\\\" See 28 U.S.C.\\n\\n§ 1603(d). I disagree. Although it can be \\\"difficult . . . in\\n\\nsome cases to separate 'purpose' (i.e., the reason why the foreign\\n\\n\\n - 49 -\\n\\nstate engages in the activity) from 'nature' (i.e., the outward\\n\\nform of the conduct that the foreign state performs or agrees to\\n\\nperform),\\\" Weltover, 504 U.S. at 617 (emphasis omitted), that\\n\\ndistinction here supports my view.\\n\\n The \\\"outward form of [Canada's] conduct\\\" includes, among\\n\\nother things, informing Merlini that she was subject to the GECA\\n\\n(this was done before her accident and injury),16 compensating her\\n\\npursuant to the GECA's benefits scheme after she made a claim of\\n\\ninjury, and not continuing her benefits when Canada's Workplace\\n\\nSafety and Insurance Board (WSIB) determined after a full process\\n\\nthat Merlini was ready to return to work. Each of these actions\\n\\nwas authorized, and, indeed, compelled by the GECA. I cannot see\\n\\nhow a country enacting its own law as to its employees and then\\n\\nadministering its own national compensation scheme under that law\\n\\nas to those employed at its embassies and consulates is not, by\\n\\nits \\\"nature,\\\" a sovereign act. Put another way, the full\\n\\nadministration of this scheme is not the \\\"justification for the\\n\\nconduct by Canada on which Merlini's claim is based,\\\" it is the\\n\\nrelevant conduct by Canada. The majority asserts that this conduct\\n\\nis \\\"simply immaterial,\\\" and we should treat Canada, a sovereign\\n\\n\\n\\n\\n 16 Merlini's complaint acknowledges that \\\"the Consulate\\ninstructed all its American employees, including Merlini, to apply\\nto the Government of Canada for benefits in the event of a\\nworkplace accident.\\\"\\n\\n\\n\\n - 50 -\\n\\nstate, simply as an \\\"employer\\\" who just \\\"did not comply with the\\n\\nstate's workers' compensation requirements.\\\" I disagree, and view\\n\\nthis conduct as clearly material to Merlini's claim.17 The\\n\\nmajority, then, narrowly focuses on Merlini's employment and\\n\\nCanada's failure to have workers' compensation insurance under\\n\\nMassachusetts state law, which I do not see as the relevant \\\"course\\n\\nof conduct\\\": Canada's sovereign, full administration of its\\n\\nworkers' compensation scheme.\\n\\n The majority thrice cites to a single sentence in the\\n\\nHouse Report about \\\"employment or engagement\\\" of clerical staff,\\n\\nas though it provides support for its conclusion. See H. Rep. No.\\n\\n94-1487, at 16 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6615.\\n\\nIt does not.\\n\\n The full text of that paragraph of the report states:\\n\\n The courts would have a great deal of latitude\\n in determining what is a '[commercial]\\n activity' for purposes of this bill. It has\\n seemed unwise to attempt an excessively\\n precise definition of this term, even if that\\n\\n 17 The majority also says that, \\\"had Canada registered as\\na self-insurer in compliance with chapter 152, it could have\\nperformed each of the 'outward' actions\\\" that I list and \\\"Merlini\\nwould not have had a claim that she could bring under Massachusetts\\nlaw.\\\" That counterfactual is not relevant to the majority's\\nassertion that \\\"none of these actions constitutes the 'outward\\nconduct' that forms the basis of Merlini's claim against the\\nCanadian government.\\\" The existence of an alternative form of\\ncompliance with a Massachusetts statute (or, put another way, a\\nmethod for a sovereign state to stave off lawsuits) does not change\\nthe character of Canada's acts from sovereign to commercial, nor\\ndoes it mean that these acts are not the relevant conduct by Canada\\nunderlying Merlini's claim.\\n\\n - 51 -\\n\\n were practicable. Activities such as a\\n foreign government's sale of a service or a\\n product, its leasing of property, its\\n borrowing of money, its employment or\\n engagement of laborers, clerical staff or\\n public relations or marketing agents, or its\\n investment in a security of an American\\n corporation, would be among those included\\n within the definition.\\n\\nId. This history does not support the majority's use of it. This\\n\\ncase is not about whether Canada complied with local law when it\\n\\nhired Merlini. No such dispute is before us. Merlini was hired;\\n\\nthis dispute is about workers' compensation and Canada's choice of\\n\\nthe workers' compensation it provides for its employees. Nothing\\n\\nin the legislative history says that any dispute about\\n\\npost-employment compensation for workplace injuries is within the\\n\\nexception for commercial activity. This case is about Canada's\\n\\nsovereign choice of a comprehensive workers' compensation scheme\\n\\n(a scheme which did compensate Merlini). Canada chose to cover\\n\\nall people employed at its consulates, whether U.S. citizens or\\n\\nnationals of other countries, under its own scheme.\\n\\n Further, Canada's action is not the \\\"type of\\n\\naction[] . . . which a private party [would] engage[] in,\\\" id. at\\n\\n614. That is so because no private party can administer such a\\n\\nnational statutory scheme.\\n\\n My understanding comports with the Supreme Court's\\n\\nholding and reasoning in a series of cases. In Weltover, the Court\\n\\nheld that Argentina's issuance of bonds known as \\\"Bonods\\\" was a\\n\\n\\n - 52 -\\n\\ncommercial act, even though its purpose was to restructure the\\n\\ncountry's debt, 504 U.S. at 609-10, because the government was\\n\\nacting \\\"not as regulator of [the] market, but in the manner of a\\n\\nprivate player within it.\\\" Id. at 614. The Court looked at the\\n\\n\\\"full context,\\\" id. at 615, and pointed to the fact that private\\n\\nparties regularly held and traded such \\\"garden-variety debt\\n\\ninstruments.\\\" Id.\\n\\n In this case, the very opposite is true: The Canadian\\n\\nconsulate's decision to comply with and enforce the workers'\\n\\ncompensation scheme established by the GECA is precisely \\\"the type\\n\\nof action[]\\\" that a \\\"regulator,\\\" not a private employer, engages\\n\\nin. Id. at 614. To be sure, a private employer can forgo\\n\\npurchasing workers' compensation insurance, but unlike Canada, it\\n\\ndoes not and cannot do so as part and parcel of enforcing a broader\\n\\nstatutory scheme.\\n\\n Next, in Nelson, the Court firmly rejected the argument\\n\\nthat the recruitment and employment by Saudi Arabia of foreign\\n\\nnationals -- which was arguably a commercial activity, and may\\n\\nhave led to the commission of intentional torts which injured the\\n\\nplaintiffs -- satisfied the commercial activity exception. 507\\n\\nU.S. at 351. That is, the Court explicitly rejected the argument\\n\\n\\n\\n\\n - 53 -\\n\\nthat no more was required than \\\"a mere connection with, or relation\\n\\nto, commercial activity.\\\" Id. at 358.\\n\\n The Nelson court emphasized that \\\"a foreign state\\n\\nengages in commercial activity for purposes of the restrictive\\n\\ntheory only where it acts 'in the manner of a private player\\n\\nwithin' the market.\\\" Id. at 360 (quoting Weltover, 504 U.S. at\\n\\n614). The Court cited several federal cases, some pre-FSIA, for\\n\\nthe proposition that immunity extends \\\"to a foreign state's\\n\\n'internal administrative acts.'\\\" Id. at 361 (quoting Victory\\n\\nTransport, 336 F.2d at 360); see Herbage v. Meese, 747 F. Supp.\\n\\n60, 67 (D.D.C. 1990), aff'd, 946 F.2d 1564 (D.C. Cir. 1991); see\\n\\nalso Heaney v. Gov't of Spain, 445 F.2d 501, 503 (2d Cir. 1971)\\n\\n(reiterating immunity for legislative acts and administrative\\n\\nacts); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d\\n\\n1198, 1200 (2d Cir. 1971) (same). Whether viewed as primarily\\n\\nlegislative or administrative, Canada's conduct here remains\\n\\nsovereign.\\n\\n The majority opinion, in my view, is also inconsistent\\n\\nwith the Court's prior precedent and other circuit precedent. This\\n\\ncircuit and others have rejected the majority's implicit premise\\n\\nthat the nature of an action can be determined by an abstract\\n\\nconsideration of whether some aspects of the broader governmental\\n\\nconduct are like those \\\"which a private party engages in [during]\\n\\n'trade and traffic or commerce.'\\\" Weltover, 504 U.S. at 614. In\\n\\n\\n - 54 -\\n\\nmy view, private parties cannot create governmental workers'\\n\\ncompensation schemes and so Canada's actions are not like those of\\n\\nprivate employers. But even if there were some likenesses to a\\n\\nprivate employer's decision to self-insure, that would not be\\n\\nenough to strip Canada of its immunity under fairly settled FSIA\\n\\nlaw.\\n\\n Several circuits have correctly found that even where\\n\\ngovernment conduct is determined to be like that in which private\\n\\nparties can and do engage, the government conduct remains sovereign\\n\\nwhen performed as part of a broader governmental program.\\n\\n I think the majority's view is in conflict with the\\n\\nSecond Circuit decision in Anglo-Iberia Underwriting Mgmt. v. P.T.\\n\\nJamsostek, 600 F.3d 171 (2d Cir. 2010). There, the Second Circuit\\n\\nheld that an Indonesian state-owned insurer was entitled to\\n\\nsovereign immunity against a negligent supervision claim because\\n\\nneither Indonesia nor its state-owned insurer was engaged in a\\n\\ncommercial activity. Id. at 176. Even if the insurer were\\n\\narguably involved in a commercial activity overall, the challenged\\n\\nactivity (negligent supervision) was not sufficiently connected to\\n\\ncommerce. Id. at 179. That is, the state-owned insurer's \\\"hiring,\\n\\nsupervision, and employment of\\\" individuals as part of a\\n\\n\\n\\n\\n - 55 -\\n\\ncomprehensive national health insurance program was not a\\n\\ncommercial act. Id. at 178.\\n\\n The Second Circuit's first holding was that the\\n\\nsovereign there, Indonesia, \\\"does not sell insurance to workers or\\n\\nto employers in any traditional sense and does not otherwise\\n\\ncompete in the marketplace like a private insurer.\\\" Id. at 177\\n\\n(internal quotation marks omitted). Thus, it held that Indonesia's\\n\\ninsurance scheme does not equate to that of an independent actor\\n\\nin the private marketplace of potential health insurers. Instead,\\n\\nit determined that \\\"the administration of Indonesia's national\\n\\nhealth insurance program\\\" was \\\"sovereign in nature.\\\" Id. at 178.\\n\\nHere, Canada also does not compete in the marketplace as either\\n\\nseller or buyer, nor does it offer its workers' compensation\\n\\nprogram to private employees.\\n\\n The Second Circuit's second holding was that \\\"even if\\n\\n. . . administration of Indonesia's national health insurance\\n\\nprogram and [the state-owned insurer's] employment . . . were\\n\\ncommercial in nature,\\\" the FSIA would not allow \\\"abrogat[ing] a\\n\\nforeign sovereign's immunity solely on the basis of an employment\\n\\nrelationship.\\\" Id. at 179. The majority attempts to distinguish\\n\\nAnglo-Iberia on this second holding, saying \\\"the claims [there]\\n\\nwere based on the defendants' administration of the government\\n\\nprograms at issue,\\\" as it was \\\"the manner of the\\n\\nadministration . . . that was alleged to be wrongful.\\\" It is, at\\n\\n\\n - 56 -\\n\\nminimum, the administration by Canada of its own workers'\\n\\ncompensation scheme that is at issue here, too.\\n\\n And my view is that Jungquist v. Sheikh Sultan Bin\\n\\nKhalifa Al Nahyan further supports my point: The fact that actions\\n\\ncan be done by private actors does not mean the actions fall within\\n\\nthe commercial activity exception where such actions were\\n\\nnevertheless \\\"uniquely sovereign in nature.\\\" 115 F.3d 1020, 1030\\n\\n(D.C. Cir. 1997). There, the two officials who saw to the\\n\\nprovision of the plaintiff's healthcare were \\\"performing their\\n\\nofficial tasks as administrators of a government [health and\\n\\nwelfare] program.\\\" Id. As here, then, the sovereign actions\\n\\ninvolved the \\\"administrat[ion] of a government program [for health\\n\\nand welfare].\\\" Id.\\n\\n I also view the majority's conclusion as being at odds\\n\\nwith rulings by the Ninth Circuit and D.C. Circuit. In Gregorian\\n\\nv. Izvestia, the Ninth Circuit held that the Soviet Union was\\n\\nentitled to sovereign immunity against a libel claim regarding a\\n\\nstate-controlled newspaper. 871 F.2d 1515, 1522 (9th Cir. 1989).\\n\\nThat the newspaper was sold and distributed in the United States\\n\\ndid not render commercial the nature of its publication and\\n\\ndistribution, as the \\\"writing and publishing of articles reporting\\n\\nor commenting on events\\\" remained governmental because the paper\\n\\nwas state-owned and operated. Id. The D.C. Circuit held similarly\\n\\nthat Peru was entitled to sovereign immunity for remodeling and\\n\\n\\n - 57 -\\n\\noperating a building as a chancery allegedly in violation of local\\n\\nDistrict of Columbia zoning laws, because the operation of a\\n\\nchancery was \\\"by its nature governmental.\\\" MacArthur Area Citizens\\n\\nAss'n v. Republic of Peru, 809 F.2d 918, 920 (D.C. Cir. 1987)\\n\\n(citation omitted).\\n\\n In my view, it is incorrect to say that Merlini's claim\\n\\nis \\\"no different from the claims that other employees have brought\\n\\nagainst private businesses that . . . have not insured themselves\\\"\\n\\nunder Massachusetts law. It is analytically incorrect, partly\\n\\nbecause the broader context must matter as to statutory\\n\\ninterpretation and application of the FSIA. If that broader\\n\\ncontext did not matter, almost any governmental act could be\\n\\ndisaggregated and framed as commercial conduct that a private party\\n\\ncan perform.\\n\\n Since what Canada has done here is a governmental act by\\n\\nits very nature, the majority cannot rely on Rush-Presbyterian-\\n\\nSt. Luke's Med. Ctr. v. Hellenic Republic, 877 F.2d 574 (7th Cir.\\n\\n1989), even if the case (whether rightly or wrongly decided) bears\\n\\nsome initial resemblance. There, the Greek government was alleged\\n\\nto be in breach of a contract to reimburse physicians and an organ\\n\\nbank in Chicago for performing kidney transplants on Greek\\n\\nnationals. Id. at 575. The Seventh Circuit held that Greece's\\n\\nexecution of the contract constituted \\\"commercial activity,\\\" even\\n\\nthough it was done to fulfill the government's constitutional goal\\n\\n\\n - 58 -\\n\\nof caring for the health of Greek citizens, because \\\"nothing about\\n\\nthe provision of and payment for health services . . . is uniquely\\n\\ngovernmental.\\\" Id. at 581.\\n\\n Not so here. Canada's conduct, its enactment of a\\n\\ncomprehensive workers' compensation scheme and decision not to\\n\\naward extended benefits, is the conduct at issue, and it is\\n\\n\\\"uniquely governmental.\\\" Id. It is one thing for a government to\\n\\nengage in a private, commercial act (such as executing a contract)\\n\\nin order to fulfill a general governmental purpose (such as\\n\\nproviding healthcare to its citizens).18 It is quite another for\\n\\na government to act in a manner strictly and precisely compelled\\n\\nby its own law to maintain the uniformity of its own federal\\n\\nworkers' compensation program. This distinction is important.\\n\\n\\n\\n\\n 18 The Seventh Circuit in Rush-Presbyterian stated that\\n\\\"[u]nder the Greek constitution, the government has a broad\\nobligation to provide health care services to Greek citizens.\\\"\\n877 F.2d at 575. The Greek constitution does establish that \\\"the\\nState shall care for the health of citizens and shall adopt special\\nmeasures for the protection of youth, old age, disability and for\\nthe relief of the needy.\\\" 2001 Syntagma [Syn.][Constitution] 21\\n(Greece) (trans). This language seems closer to stating a general\\nsovereign purpose -- caring for health of citizens -- than a direct\\nand precise mandate such as at issue in the GECA.\\n In furthering this general constitutional goal, the\\nGreek government maintains a wide range of possible options. And\\nindeed, the Greek government has changed the precise cost and\\nprovision of healthcare numerous times since Rush-Presbyterian was\\ndecided, including, for example, eliminating health insurance for\\nthose who had been unemployed for more than two years as part of\\nausterity measures. See Lucy Rodgers & Nassos Stylianou, How bad\\nare things for the people of Greece, BBC News (July 16, 2015),\\nhttp://www.bbc.com/news/world-europe-33507802.\\n\\n\\n - 59 -\\n\\n I return to my sense of the foreign policy repercussions\\n\\nof the majority's view. The U.S. has undertaken the same sovereign\\n\\nexercise abroad as to providing workers' compensation for U.S.\\n\\nembassy and consulate employees as has Canada. For over a century,\\n\\nthe U.S. has had a workers' compensation scheme for federal workers\\n\\nunder the Federal Employees' Compensation Act (\\\"FECA\\\"), 5 U.S.C.\\n\\n§ 8101 et seq. FECA expressly covers \\\"noncitizens and\\n\\nnonresidents\\\" who are employees of the United States, such as\\n\\nemployees at U.S. embassies and consulates abroad. See id. § 8137.\\n\\nThe State Department tells us that \\\"many foreign nationals employed\\n\\nby U.S. embassies and consulates — including Canadian citizens\\n\\nemployed by the United States in Canada — are currently entitled\\n\\nto workers' compensation benefits in virtue of United States law,\\n\\nnot local law.\\\" Like the GECA, U.S. law mandates that noncitizen,\\n\\nnonresident federal workers employed abroad are subject to federal\\n\\nU.S. workers' compensation law and procedures. See id. In\\n\\naddition to this statutory command, State Department regulations\\n\\nestablish a \\\"special schedule\\\" for the compensation of such embassy\\n\\nand consulate workers, except in narrow circumstances. 20 C.F.R.\\n\\n§ 25.2(b).\\n\\n To say, then, that Canada is acting in a \\\"commercial\\\"\\n\\nmanner when it imposes its own workers' compensation scheme would\\n\\nlead to the conclusion that our government's like actions as to\\n\\nemployees of embassies and consulates abroad are similarly\\n\\n\\n - 60 -\\n\\ncommercial, not sovereign. That, in my view, cannot be right. A\\n\\ndecision that Canada's actions are merely commercial risks\\n\\nproviding cover for other countries to ignore sovereign actions\\n\\ntaken by the U.S. and allow liability against the U.S. government\\n\\nconcerning workers' compensation under local laws. Indeed, the\\n\\nState Department's filing expresses concern with the U.S.\\n\\n\\\"fac[ing] increased exposure in similar claims abroad.\\\" I think\\n\\nit highly unlikely that Congress intended such a result in drafting\\n\\nthe FSIA. The effect of the majority's holding is to abrogate\\n\\nCanada's immunity from suit and force it to face a claim that\\n\\nMassachusetts can require Canada to get local insurance when Canada\\n\\nhas made a sovereign decision to provide insurance itself through\\n\\na comprehensive scheme.\\n\\n Further, Merlini cannot escape from the fact that she is\\n\\nchallenging Canada's imposition of its own compensation scheme in\\n\\nlieu of purchasing Massachusetts workers' compensation insurance.\\n\\nThe majority finds little significance in the fact that Canada\\n\\nprovided Merlini with compensation through Canada's own workers'\\n\\ncompensation system. Pursuant to the GECA, Merlini received\\n\\ncompensation, in the form of full payment of her salary, from March\\n\\nuntil October 2009. At that point, the WSIB determined that\\n\\nMerlini was able to return to work and terminated her benefits.\\n\\nMerlini chose not to appeal, which was open to her, and instead\\n\\n\\n\\n\\n - 61 -\\n\\nbegan a decade-long legal battle in the U.S. to obtain additional\\n\\nbenefits from Massachusetts and from Canada.\\n\\n Finally, the majority also \\\"emphasize[s]\\\" throughout\\n\\nthat Merlini is an American citizen, and states that it reaches\\n\\nits conclusion because of that fact. But that cannot limit the\\n\\nreach of its opinion in any way. The Massachusetts insurance\\n\\nstatute, by its terms, applies to workers of all nationalities\\n\\nemployed locally, not just U.S. citizens. So, by that logic, even\\n\\nthe consulate's Canadian employees are subject to the state\\n\\nstatute. The majority's attempt to cabin its opinion by stressing\\n\\nthat Merlini is an American citizen does not work for yet another\\n\\nreason. The majority's attempted distinction based on citizenship\\n\\nof Canada's consular employees creates incentives to discourage\\n\\nCanada from employing Americans in its consulate, and imposes on\\n\\nCanada the costs and paperwork of administering different workers'\\n\\ncompensation systems. In turn, the majority's attempted\\n\\ndistinction would discourage American embassies abroad from\\n\\nemploying local foreign citizens due to post-employment\\n\\napplication of local workers' compensation law. But the choice to\\n\\nemploy such citizens and the mix of the nationalities of employees\\n\\nat such consulates and embassies are sovereign choices.\\n\\n If the majority thinks, as it says it does, that its\\n\\nresult here, a denial of sovereign immunity, can be limited to\\n\\nlow-level, \\\"purely clerical\\\" workers, I think that is mistaken.\\n\\n\\n - 62 -\\n\\nThe logic of its analysis leaves no room for that. Further, there\\n\\nis no support in the text of the statute or the Supreme Court\\n\\ncaselaw for such a distinction. The same is true for any attempted\\n\\nlimitation based on Merlini's American citizenship.\\n\\n The purpose of sovereign immunity is to leave sovereign\\n\\nissues to the sovereigns, not to the courts. I respectfully\\n\\ndissent.\\n\\n\\n\\n\\n - 63 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405223/\", \"author_raw\": \"LYNCH, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"KAYATTA"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":2,"string":"2"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4627970/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":1,"string":"1"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Cynthia L. MERLINI, Plaintiff, Appellant, v. CANADA, Defendant, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-10\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2211\n\n CYNTHIA L. MERLINI,\n\n Plaintiff, Appellant,\n\n v.\n\n CANADA,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Nathaniel M. Gorton, U.S. District Judge]\n\n\n Before\n\n Lynch, Kayatta, and Barron,\n Circuit Judges.\n\n\n Theodore J. Folkman, with whom Murphy & King, P.C. was on\nbrief, for appellant.\n John F. Cooney, with whom Benjamin E. Horowitz, Venable LLP,\nD.E. Wilson, Jr., Andrew E. Bigart, and Liz C. Rinehart were on\nbrief, for appellee.\n\n\n June 10, 2019\n\n BARRON, Circuit Judge. Cynthia Merlini (\"Merlini\") is\n\na United States citizen who was injured in the course of her\n\nemployment as an administrative assistant at the Canadian\n\nconsulate in Boston, Massachusetts. The injury occurred in 2009\n\nwhen she tripped over a cord in the consulate that had not been\n\nsecured to the floor. In 2017, as a result of that injury, Merlini\n\nsued Canada for damages in the United States District Court for\n\nthe District of Massachusetts pursuant to the Massachusetts\n\nWorkers' Compensation Act (the \"MWCA\"), which is codified at\n\nMassachusetts General Laws chapter 152.\n\n The District Court dismissed Merlini's complaint for\n\nlack of jurisdiction after concluding that Canada was immune from\n\nthe suit under the Foreign Sovereign Immunities Act (\"FSIA\"), 28\n\nU.S.C. § 1602 et. seq. We now reverse.\n\n I.\n\n In 2003, the government of Canada hired Merlini -- who\n\nis a resident of Massachusetts, a citizen of the United States,\n\nand not a citizen of Canada -- to be an administrative assistant\n\nto the Consul General of Canada in Boston. Merlini asserts, and\n\nCanada does not contest, that her \"duties\" in this position \"were\n\npurely clerical, and comparable to the duties of an assistant or\n\nsecretary to an executive in any private firm,\" as \"[s]he answered\n\nthe phones, maintained files, typed letters, and did other\n\nsecretarial work\" in the Canadian consulate in Boston. She further\n\n\n - 2 -\n\nasserts, again without dispute, that \"[s]he was not a consular\n\nofficer,\" \"[s]he had no governmental, consular, diplomatic, or\n\nofficial duties,\" \"[s]he took no competitive examination before\n\nhiring,\" and \"she was not entitled to tenure protections, or to\n\nthe employment benefits Canadian foreign service officers\n\nreceived.\"\n\n Merlini alleges that, while setting up coffee and tea\n\nservice on January 22, 2009 for a meeting at the consulate, she\n\ntripped over an unsecured speakerphone cord, fell, struck a\n\ncredenza, and thereby sustained \"a serious injury\" that left her\n\nunable to work. Canada does not challenge that allegation for the\n\npurpose of the present appeal. Additionally, it is undisputed\n\nthat, per Canada's own national workers' compensation system,\n\nCanada paid Merlini what amounted to her full salary from shortly\n\nafter the accident until October 2009.\n\n Sometime thereafter, however, Canada determined that\n\nMerlini was able to return to work and ceased paying her pursuant\n\nto its national workers' compensation system. That determination\n\nappears to have set matters on the course that has resulted in the\n\nsuit that is now before us on appeal.\n\n The initial step on that course was Merlini's request\n\nthat Canada reconsider its determination to stop paying her under\n\nCanada's workers' compensation system. Following Canada's denial\n\n\n\n\n - 3 -\n\nof that request for reconsideration, Merlini shifted course and\n\nsought relief under Massachusetts law.\n\n Merlini did so first, in 2011, by bringing an\n\nadministrative claim against the Massachusetts Workers'\n\nCompensation Trust Fund (\"WCTF\"). That fund provides, among other\n\nthings, for the payment of benefits to employees who are unable to\n\nwork in consequence of workplace injuries that they have suffered\n\nwhile working for an employer who is subject to personal\n\njurisdiction within the Commonwealth and who is \"uninsured\" for\n\npurposes of the MWCA. See Mass. Gen. Laws ch. 152 § 65(2)(e).\n\nChapter 152 provides that, to qualify as \"insured,\" an employer\n\nmust (1) have insurance with an insurer, (2) hold membership in a\n\nworkers' compensation self-insurance group certified by the state,\n\nor (3) be licensed as self-insured annually by the state, which\n\nrequires the employer, among other things, to complete a detailed\n\napplication, provide certain financial information, post a surety\n\nbond to or deposit negotiable securities with the state to cover\n\nany losses that may occur, and purchase catastrophe reinsurance of\n\nat least $500,000. See id. at §§ 1(6), 25A; 452 Mass. Code Regs.\n\n5.00; see also LaClair v. Silberline Mfg. Co., 393 N.E.2d 867, 871\n\n(Mass. 1979).\n\n In 2013, the Massachusetts Department of Industrial\n\nAccidents (\"DIA\") held an evidentiary hearing, in which Canada\n\nparticipated as amicus curiae for the WCTF, on Merlini's claim\n\n\n - 4 -\n\nagainst the fund. An administrative judge found that Merlini was\n\nentitled to ongoing incapacity benefits from the fund under chapter\n\n152 § 34 (temporary total incapacity benefits) and chapter 152\n\n§ 34A (permanent total incapacity benefits).\n\n The WCTF then appealed this ruling to the DIA's Reviewing\n\nBoard (\"DIA Board\"). In 2015, the DIA Board reversed the\n\nadministrative judge's ruling and denied Merlini the benefits from\n\nthe fund. The DIA Board determined that (1) Canada was not\n\n\"subject to the personal jurisdiction of the Commonwealth\"; (2)\n\nCanada was not \"uninsured\" for purposes of the statute because it\n\nhad sovereign immunity; and (3) the WCTF was not liable if an\n\nemployee was entitled to workers' compensation benefits in any\n\nother jurisdiction, Mass. Gen. Laws ch. 152 § 65(2)(e)(i), and\n\nMerlini was in fact entitled under Canadian law to such benefits\n\nunder Canada's national workers' compensation system.\n\n In 2016, Merlini sought review of the DIA Board's ruling\n\nfrom the Massachusetts Appeals Court (\"MAC\"). The MAC upheld the\n\nBoard's ruling. The MAC did so, however, only on the ground that,\n\nin consequence of the injury that Merlini suffered at the\n\nconsulate, she had been entitled to benefits in another\n\njurisdiction -- namely, Canada. Thus, the MAC did not \"address\n\nwhether the Canadian government is subject to the jurisdiction of\n\nthe Commonwealth or whether the Consulate was an 'uninsured\n\nemployer' in violation of chapter 152.\"\n\n\n - 5 -\n\n Merlini did not appeal the MAC's ruling. Instead, in\n\n2017, Merlini sued Canada for damages in federal district court in\n\nthe District of Massachusetts pursuant to chapter 152. It is that\n\nsuit that is the subject of this appeal.\n\n Canada moved to dismiss Merlini's suit on jurisdictional\n\ngrounds under Federal Rule of Civil Procedure 12(b)(1). Canada\n\ncontended in its motion that it was entitled to foreign sovereign\n\nimmunity under the FSIA and thus that the District Court lacked\n\njurisdiction. Canada also separately moved to dismiss Merlini's\n\nsuit under Federal Rule of Civil Procedure 12(b)(6) for failure to\n\nstate a claim. Canada did so on the ground that the DIA Board's\n\nruling that Canada was not \"uninsured\" was preclusive of Merlini's\n\nclaim because the DIA Board had ruled on that basis that Canada\n\n\"was not required to obtain local workers' compensation insurance\n\nor register with the state as a self-insurer and therefore could\n\nnot be considered an uninsured employer\" under the MWCA.\n\n In opposing Canada's motion to dismiss, Merlini first\n\nasserted that two exceptions to the FSIA's presumption of foreign\n\nsovereign immunity applied: the \"commercial activity\" exception,\n\n28 U.S.C. § 1605(a)(2),1 and the \"noncommercial tort\" exception,\n\n\n 1 This provision states that:\n A foreign state shall not be immune from the\n jurisdiction of courts of the United States or of\n the States in any case in which the action is based\n upon a commercial activity carried on in the United\n\n\n\n - 6 -\n\nid. at § 1605(a)(5).2 Merlini thus contended that the District\n\nCourt had jurisdiction over Canada. Merlini also argued that she\n\nhad stated a claim against Canada because the DIA Board ruling did\n\nnot preclude her claim.\n\n In December 2017, the District Court dismissed Merlini's\n\ncomplaint for lack of jurisdiction on the grounds that, pursuant\n\nto the FSIA, Canada is \"'presumptively immune' from liability in\n\nfederal courts of the United States\" and that Merlini had failed\n\nto demonstrate that either of the two FSIA exceptions on which she\n\n\n\n\n States by the foreign state; or upon an act\n performed in the United States in connection with\n a commercial activity of the foreign state\n elsewhere; or upon an act outside the territory of\n the United States in connection with a commercial\n activity of the foreign state elsewhere and that\n act causes a direct effect in the United States.\n 2 This provision states that:\n A foreign state shall not be immune from the\n jurisdiction of courts of the United States or of\n the States in any case not otherwise encompassed in\n paragraph (2) [the \"commercial activity\" exception]\n above, in which money damages are sought against a\n foreign state for personal injury or death, or\n damage to or loss of property, occurring in the\n United States and caused by the tortious act or\n omission of that foreign state or of any official\n or employee of that foreign state while acting\n within the scope of his office or employment;\n except this paragraph shall not apply to -- (A) any\n claim based upon the exercise or performance or the\n failure to exercise or perform a discretionary\n function regardless of whether the discretion be\n abused, or (B) any claim arising out of malicious\n prosecution, abuse of process, libel, slander,\n misrepresentation, deceit, or interference with\n contract rights.\n\n - 7 -\n\nrelied in contesting Canada's sovereign immunity applied. Merlini\n\nv. Canada, 280 F. Supp. 3d 254, 256, 258 (D. Mass. 2017) (quoting\n\nSaudi Arabia v. Nelson, 507 U.S. 349, 355 (1993)). The District\n\nCourt \"decline[d] to address\" Canada's separate contention that\n\nMerlini had failed to state a claim for which relief could be\n\ngranted. Id. at 259. Merlini now appeals the District Court's\n\ndismissal of her claim for lack of jurisdiction and also contends\n\nthat the dismissal of her claim may not be affirmed on issue\n\npreclusion grounds.\n\n II.\n\n We start by describing certain aspects of the\n\nMassachusetts workers' compensation scheme, as codified by chapter\n\n152 of the MWCA. Those provisions figure prominently in the\n\nparties' dispute over whether Canada is entitled to foreign\n\nsovereign immunity in this case.\n\n As a general matter, the MWCA bars an employee from suing\n\nher employer for a work-related injury -- including one resulting\n\nfrom a fellow employee's conduct -- when the employer is \"insured\"\n\nwithin the meaning of the MWCA. See Mass. Gen. Laws ch. 152 § 24.\n\nThe MWCA imposes this bar by providing that an employee waives the\n\n\"right of an action at common law . . . [with] respect to an injury\n\nthat is compensable under [the MWCA]\" if the employer was insured\n\nwithin the meaning of the MWCA at the time of the employee's hiring\n\nor became insured prior to the employee's injury, unless the\n\n\n - 8 -\n\nemployee preserves such a right by providing proper notice of the\n\nemployee's intent to preserve it. Id.\n\n Chapter 152, however, sets forth a corollary to this\n\nbar. It provides that, if an employer is not insured within the\n\nmeaning of the MWCA, then an employee, generally, may bring a suit\n\nagainst the employer to recover for a workplace injury -- even if\n\nthe conduct is caused by a fellow employee. See Hanover Ins. Co.\n\nv. Ramsey, 539 N.E.2d 537, 538 n.3 (Mass. 1989) (\"An employer who\n\nhas failed to obtain workers' compensation insurance can be held\n\nliable essentially in all cases in which the employee can prove\n\nthat he was injured in the course of his work.\").\n\n Moreover, chapter 152 makes clear that, in such a suit\n\nby the employee, the employer is deprived of asserting a host of\n\nimportant defenses that would ordinarily be available at common\n\nlaw, which effectively renders the employee's claim against the\n\nemployer a \"strict liability\" claim. See Doe v. Access Indus.,\n\nInc., 137 F. Supp. 3d 14, 16 (D. Mass. 2015); Coppola v. City of\n\nBeverly, 576 N.E.2d 686, 687 (Mass. App. Ct. 1991). Section 66 of\n\nchapter 152 specifies the limitations on the defenses that are\n\navailable as follows:\n\n Actions brought against employers to recover\n damages for personal injuries or consequential\n damages sustained within or without the\n commonwealth by an employee in the course of\n his employment . . . shall be commenced within\n twenty years from the date the employee first\n became aware of the causal relationship\n\n\n - 9 -\n\n between the disability and his employment. In\n such actions brought by said\n employees . . . it shall not be a defense: 1.\n That the employee was negligent; 2. That the\n injury was caused by the negligence of a\n fellow employee; 3. That the employee had\n assumed voluntarily or contractually the risk\n of the injury; 4. That the employee's injury\n did not result from negligence or other fault\n of the employer, if such injury arose out of\n and in the course of employment.\n\n Merlini contends that, because Canada is not insured\n\n(even as a self-insurer) within the meaning of chapter 152, she is\n\nentitled under chapter 152 to bring her suit against Canada for\n\nthe workplace injury that she suffered. And, she further contends,\n\nfor that same reason, Canada is subject in her suit to the\n\nlimitations on the defenses that are set forth in § 66. Canada\n\nargues in response that, precisely because Merlini relies on § 66,\n\nit is entitled to immunity under the FSIA, even assuming that\n\nCanada does not qualify as being \"insured\" within the meaning of\n\nchapter 152. Thus, Canada contends, Merlini's claim must be\n\ndismissed for lack of jurisdiction.\n\n We must now decide whether Canada is right. To do so,\n\nwe must address Merlini's contention that Canada lacks foreign\n\nsovereign immunity in consequence of either of two exceptions to\n\nsuch immunity that the FSIA recognizes.\n\n\n\n\n - 10 -\n\n III.\n\n The FSIA \"provides the sole basis for obtaining\n\njurisdiction over a foreign state in federal court.\" Universal\n\nTrading & Inv. Co. v. Bureau for Representing Ukrainian Interest\n\nin Int'l & Foreign Courts, 727 F.3d 10, 16 (1st Cir. 2013) (quoting\n\nArgentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 439\n\n(1989)). The FSIA establishes \"a presumption of foreign sovereign\n\nimmunity from the jurisdiction of the courts of the United States\"\n\nthat typically controls the jurisdictional question. Id. (citing\n\n28 U.S.C. § 1330; Verlinden B.V. v. Cent. Bank of Nigeria, 461\n\nU.S. 480, 485 n.5 (1983)). Thus, as a general matter, \"courts in\n\nthe Unites States lack both subject matter and personal\n\njurisdiction over a suit against a foreign sovereign.\" Id.\n\n The FSIA does, however, set forth a list of express\n\nexceptions to the foreign sovereign immunity that it generally\n\nrecognizes, such that foreign states are not immune from suit in\n\nfederal court if one of those \"enumerated exceptions to immunity\n\napplies.\" Id. (citing 28 U.S.C. §§ 1604, 1605, 1605A; Verlinden,\n\n461 U.S. at 488). Merlini invokes two of those exceptions -- the\n\n\"commercial activity\" exception and the \"noncommercial tort\"\n\nexception -- in contending that Canada is not entitled to sovereign\n\nimmunity from her suit.\n\n We focus here on one of them, the \"commercial activity\"\n\nexception, 28 U.S.C. § 1605(a)(2), as we conclude that, contrary\n\n\n - 11 -\n\nto the District Court's ruling, this exception does apply. This\n\nconclusion, moreover, precludes the \"noncommercial tort\" exception\n\nfrom applying. See 28 U.S.C. § 1605(a)(5) (providing that \"[a]\n\nforeign state shall not be immune from the jurisdiction of courts\n\nof the United States or of the States in any case not otherwise\n\nencompassed in paragraph (2) [the \"commercial activity\"\n\nexception]\"). Our review of the District Court's ruling on this\n\nscore is de novo. Universal Trading, 727 F.3d at 15.\n\n A.\n\n The \"commercial activity\" exception provides in relevant\n\npart that \"a foreign state is subject to jurisdiction in any case\n\n'in which the action is based upon a commercial activity carried\n\non in the United States by the foreign state.'\" Fagot Rodriguez\n\nv. Republic of Costa Rica, 297 F.3d 1, 5 (1st Cir. 2002) (emphasis\n\nadded) (quoting 28 U.S.C. § 1605(a)(2)). The inquiry into whether\n\nthe exception applies -- at least in a case like this, in which\n\nthe parties agree that the foreign state \"carried on\" the relevant\n\naction \"in the United States\" -- involves two steps.\n\n The first step \"requires a court to 'identify[] the\n\nparticular conduct on which the [plaintiff's] action is based.'\"\n\nOBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 395 (2015)\n\n(alteration in original) (quoting Saudi Arabia v. Nelson, 507 U.S.\n\n349, 356 (1993)). In performing that threshold inquiry, \"a court\n\nshould identify that 'particular conduct' by looking to the 'basis'\n\n\n - 12 -\n\nor 'foundation' for a claim,\" which the court has variously\n\ndescribed as \"'those elements . . . that, if proven, would entitle\n\na plaintiff to relief'\" and as \"the gravamen of the complaint.\"\n\nId. (omission in original) (internal citations omitted) (quoting\n\nNelson, 507 U.S. at 357).\n\n This inquiry requires more than a myopic focus on whether\n\n\"one element\" of the claim is based upon a \"commercial activity\"\n\nof the foreign state. See id. at 394-96. The right approach looks\n\nbeyond the fact that a single element of the claim might be \"based\n\non\" such conduct and instead \"zeroe[s] in on the core of\" the\n\nplaintiff's claim. Id. at 396.\n\n After a court identifies the particular conduct by the\n\nforeign state on which the plaintiff's claim is \"based,\" the next\n\nstep in the inquiry requires a court to determine whether that\n\nconduct qualifies as \"commercial activity.\" Fagot Rodriguez, 297\n\nF.3d at 5. If the conduct does so qualify, then the \"commercial\n\nactivity\" exception to foreign state sovereign immunity applies,\n\nat least when, as in this case, the parties do not dispute that\n\nthe conduct was \"carried on\" by the foreign state \"in the United\n\nStates.\"\n\n \"The term 'commercial activity' encompasses both 'a\n\nregular course of commercial conduct' and 'a particular commercial\n\ntransaction or act.'\" Id. (quoting 28 U.S.C. § 1603(d)). As we\n\nhave explained, however, \"the question is not whether the foreign\n\n\n - 13 -\n\ngovernment [was] acting with a profit motive or instead with the\n\naim of fulfilling uniquely sovereign objectives,\" but \"[r]ather,\n\nthe issue is whether the particular actions that the foreign state\n\nperform[ed] (whatever the motive behind them) [were] the type of\n\nactions by which a private party engages in 'trade and traffic or\n\ncommerce.'\" Id. at 6 (alterations in original) (quoting Republic\n\nof Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992)). Thus,\n\n\"[i]n assessing whether a certain transaction or course of conduct\n\nis commercial in character, courts must look to the 'nature' of\n\nthe activity rather than its 'purpose.'\" Id. at 5-6; see also 28\n\nU.S.C. § 1603(d) (\"The commercial character of an activity shall\n\nbe determined by reference to the nature of the course of conduct\n\nor particular transaction or act, rather than by reference to its\n\npurpose.\").\n\n Against this legal background, the key questions\n\nconcerning the \"commercial activity\" exception that we must\n\naddress in this appeal are the following: what conduct is Merlini's\n\nclaim against Canada \"based on,\" and is that conduct \"commercial\n\nactivity\"? We turn, then, to those two questions, starting with\n\nthe first.\n\n B.\n\n In taking up the first question, we begin by observing\n\nthat Canada does not dispute that it employed Merlini at its\n\nconsulate in Boston, that she is an American citizen and not a\n\n\n - 14 -\n\nCanadian citizen, that her employment involved only duties that\n\n\"were purely clerical,\" and that her employment lacked indicia of\n\ndiplomatic or civil service.3 Nor does Canada contest, for\n\npurposes of this appeal, that Merlini was injured while performing\n\nher ordinary clerical duties as Canada's employee in the consulate\n\nin Boston.\n\n Thus, if Merlini's complaint is \"based on\" Canada's\n\nemployment of her as a clerical worker doing routine clerical work\n\nat the consulate in Boston, then the \"commercial activity\"\n\nexception would appear to apply. See H. Rep. No. 94-1487, at 16\n\n(1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6615 (describing\n\n\"[a]ctivities such as a government's . . . employment or engagement\n\nof laborers, clerical staff or public relations or marketing agents\n\n. . . [as] those included within the definition [of commercial\n\nactivity]\" (emphasis added)). In fact, Canada does not appear to\n\nargue otherwise.\n\n The State Department, in its amicus brief, however,\n\ncontends that Merlini's complaint is solely \"based on\" the\n\nnegligent conduct by her fellow employee that caused the injury\n\nthat she suffered during the course of her employment -- namely,\n\n\n\n 3As already mentioned, Canada does not contend that Merlini\nhad governmental, consular, diplomatic, or official duties; took\na competitive examination before hiring; or was entitled to tenure\nprotections or the employment benefits Canadian foreign service\nofficers receive.\n\n\n\n - 15 -\n\nwhat she alleges in her complaint to have been the negligent laying\n\nof the cord by that employee. The Department then contends that\n\nthis conduct does not qualify as \"commercial activity\" and thus\n\nthat the \"commercial activity\" exception does not apply. Rather,\n\nthe Department contends, the \"noncommercial tort\" exception is the\n\nonly exception that might apply in Merlini's case, insofar as her\n\naction under § 66 can be characterized -- notwithstanding the fact\n\nthat it strips the employer of asserting an absence of negligence\n\nas a defense -- as one that seeks recovery \"against a foreign state\n\nfor personal injury . . . caused by [a] tortious act or omission.\"\n\n28 U.S.C. § 1605(a)(5) (emphasis added). The Department thus\n\nargues that we should vacate and remand to permit Merlini to\n\ndevelop her claim of negligence under the \"noncommercial tort\"\n\nexception.\n\n To establish the premise on which this contention\n\nrests -- namely, that the suit is based solely on the conduct of\n\nMerlini's fellow employee with respect to the speakerphone\n\ncord -- the Department invokes the Supreme Court's opinion in Saudi\n\nArabia v. Nelson. There, the plaintiff argued that his claims of\n\ntorture and false imprisonment at the hands of the Saudi Arabian\n\ngovernment were \"commercial\" in nature because it was his\n\nemployment with the Saudi Arabian government that \"led to\" those\n\ninjuries. Nelson, 507 U.S. at 358. The Supreme Court, however,\n\ndisagreed. In so deciding, the Court held that it was wrong to\n\n\n - 16 -\n\ncharacterize the plaintiff's claims as being \"based on\"\n\n\"commercial activity\" simply because \"commercial activity\"\n\n\"preceded\" the conduct from which those claims arose. Id.\n\nInstead, the Court stressed that while the plaintiff's employment\n\nmay have \"led to\" his injuries at the hands of the Saudi Arabian\n\ngovernment in a temporal sense, the actions that effectuated those\n\ninjuries were in no way tied to that employment and were,\n\ntherefore, not \"commercial\" in nature. Id. The Department argues\n\nthat the same conclusion is required here.\n\n We disagree. The MWCA requires that Merlini prove only\n\nthat she was injured in the workplace in the course of her\n\nemployment with Canada. Consequently, Merlini is not required to\n\nprove -- as the plaintiff in Nelson was required to prove as to\n\nhis claims for battery, unlawful detainment, wrongful arrest and\n\nimprisonment, false imprisonment, inhuman torture, disruption of\n\nnormal family life, and infliction of mental anguish -- any action\n\nby any person that caused the underlying injury. She has to prove,\n\ninstead, that she suffered a workplace injury in the course of her\n\nemployment and that the defendant, Canada, was her employer. Given\n\nthat courts have held that an employer's maintenance of a hostile\n\nor discriminatory work environment constitutes \"commercial\n\nactivity\" for the purposes of a Title VII suit against an employer,\n\n42 U.S.C. § 2000e–2(a), -- see, e.g., Holden v. Canadian Consulate,\n\n92 F.3d 918, 922 (9th Cir. 1996); Ashraf-Hassan v. Embassy of\n\n\n - 17 -\n\nFrance in United States, 40 F. Supp. 3d 94, 102-03 (D.D.C.\n\n2014) -- we fail to see why that same logic does not apply to\n\nMerlini’s § 66 claim against her employer for workplace injuries\n\nsuffered by employees during the course of their employment. Hers\n\nis no more an ordinary slip and fall case than those cases are\n\nordinary harassment cases. Each rests on a claim that makes the\n\nemployer directly liable for what happens in the workplace to the\n\nemployee who brings the suit.\n\n To be sure, the Supreme Court has stressed that to find\n\nthe gravamen of any personal injury suit, one must look to \"the\n\npoint of contact -- the place where the boy got his fingers\n\npinched.\" Sachs, 136 S. Ct. at 397 (internal quotations omitted).\n\nHowever, nothing in that precedent requires that we assess that\n\nconduct independent of the plaintiff's actual claim, which, in\n\nthis case, is a claim against the employer -- not a fellow employee\n\n-- and requires no proof that any fellow employee engaged in any\n\nparticular conduct.\n\n We find the D.C. Circuit's analysis in El-Hadad v. United\n\nArab Emirates instructive in this regard. 496 F.3d 658 (D.C. Cir.\n\n2007). There, the Court held that that the gravamen of the\n\nplaintiff's complaint, which alleged breach of contract for\n\nwrongful termination, involved \"commercial activity,\" in part,\n\nbecause it occurred in the \"employment context.\" Id. at 663. In\n\nchoosing to focus on the \"employment relationship . . . as a\n\n\n - 18 -\n\nwhole,\" the Court noted that a \"narrow[er]\" framing of the gravamen\n\nof the complaint -- focusing myopically on the plaintiff's\n\ndefamation or breach of contract claims divorced from the\n\nemployment context -- would \"defy analysis\" under the \"commercial\n\nactivity\" inquiry. Id. at 663 n.1 (highlighting the difficulty of\n\ncharacterizing a \"breach of contract,\" without more, as\n\n\"commercial\" or \"non-commercial\").\n\n Simply put, Merlini's employment did not simply \"le[ad]\n\nto\" the injury that she received; it provides the legal basis for\n\nthe only cause of action that she has against her employer for the\n\ninjury for which she seeks to recover. See In re Opinion of the\n\nJustices, 34 N.E.2d 527, 544 (Mass. 1941) (establishing that\n\nchapter 152 §66 \"must be interpreted as creating a cause of action\n\nin an employee sustaining an injury 'in the course of his\n\nemployment' that is a 'direct result' of such employment though\n\nnot a 'direct result of any negligence on the part of the\n\nemployer'\").\n\n We recognize that, as the Department notes, the Supreme\n\nCourt did not reject all of Nelson's claims on the ground that his\n\nallegations of \"commercial activity\" (his employment) preceded the\n\nactual conduct causing his injuries. Instead, in both Nelson and\n\nthe Court's subsequent decision in Sachs, the Supreme Court noted\n\nthat, with respect to the plaintiffs' failure to warn claims, the\n\nexception triggering activities (Nelson's employment and Sachs's\n\n\n - 19 -\n\nticket purchase) were necessary elements of those claims.\n\nNonetheless, the Court concluded in both cases that the failure to\n\nwarn claims were impermissible because they were\n\n\"merely . . . semantic ploy[s],\" Nelson, 507 U.S. 9 at 363,\n\n\"artful[ly] pled[],\" Sachs, 136 S. Ct. at 396, to avoid the foreign\n\nstates' sovereign immunity.\n\n Insofar as the Department means to argue that Merlini's\n\nclaims are, in some way, a similar \"semantic ploy\" to avoid\n\nCanada's sovereign immunity, no such concerns exist here.\n\nMerlini's chapter 152 claim was not part of some shrewd litigation\n\nstrategy aimed at navigating around Canada's sovereign immunity.\n\nIt was, instead, the only claim that Merlini could bring against\n\nher employer for the workplace injury that she suffered under the\n\nstatutory framework established by the Massachusetts legislature\n\nfor permitting employees to seek redress for such injuries from\n\ntheir employers. That framework has, as one of its express aims,\n\nthe goal of incentivizing employers to comply with the law's\n\nworker's compensation requirement so that employees are ensured\n\nadequate coverage in situations where they are injured during the\n\ncourse of their employment. See In re Opinion of the Justices, 34\n\nN.E.2d at 543-44 (describing the \"manifest[] . . . purpose\" of\n\nchapter 152 as \"leav[ing] non-subscribing employers in such a\n\ndisadvantageous position that hardly any employer could afford not\n\nto accept the insurance provisions of the act\").\n\n\n - 20 -\n\n Thus, even if we were to accept that the gravamen of\n\nMerlini's complaint does not encompass Canada's choice to forgo\n\nobtaining the requisite insurance, we still would find that the\n\n\"commercial activity\" exception applies. And that is because the\n\nconduct on which her claim is based cannot be divorced from her\n\n\"employment relationship\" with Canada.\n\n In so deciding, though, we emphasize that we reach this\n\nconclusion because Merlini is a United States citizen -- and not\n\na citizen of Canada -- whom Canada employed to work for it as\n\nclerical staff in the United States. Accordingly, Merlini is just\n\nthe type of employee whose employment by a foreign state Congress\n\nidentified as an example of \"commercial activity\" by a foreign\n\nstate. See H. Rep. No. 94-1487, at 16 (1976), reprinted in 1976\n\nU.S.C.C.A.N. 6604, 6615. Nor does Canada argue that there is\n\nanything about Merlini's duties that supports a different\n\nconclusion. We thus do not mean to suggest that the outcome would\n\nbe the same if Merlini's position were not purely \"clerical.\" See\n\nKato v. Ishihara, 360 F.3d 106, 110-14 (2nd Cir. 2004)\n\n(characterizing \"product promotion for Japanese companies\" as\n\n\"governmental\" and, therefore, noncommercial); Butters v. Vance\n\nIntern., Inc., 225 F.3d 462, 465 (4th Cir. 2004) (characterizing\n\n\"[p]roviding security for the royal family\" of Saudi Arabia as\n\n\"sovereign\" and, therefore, noncommercial).\n\n\n\n\n - 21 -\n\n C.\n\n We turn, then, to Canada's contention, which it also\n\nmade to the District Court, that \"[t]he circumstances of\n\n[Merlini's] employment, and whether Canada could or should have\n\nprevented the alleged accident,\" are \"incidental and immaterial\n\nunder [Merlini's] theory of the claim.\" Canada points to the fact\n\nthat Merlini is relying in bringing her claim on chapter 152 § 66,\n\nwhich provides that \"[a]n employer is liable in tort to an employee\n\nwithout proof of negligence if the employer is required to maintain\n\nworkers' compensation insurance and fails to do so (or fails to\n\nbecome a licensed self-insurer) . . . .\" Thorson v. Mandell, 525\n\nN.E.2d 375, 377 (Mass. 1988).\n\n Canada argues that Merlini's reliance on § 66 is of\n\ncritical importance in determining the gravamen of her complaint.\n\nCanada contends that, due to her reliance on that provision of\n\nchapter 152, Merlini is necessarily bringing a claim that is \"based\n\non\" \"how Canada provides workers' compensation benefits,\" given\n\nthat her claim necessarily depends on the fact that Canada chose\n\nto compensate her through a means that does not qualify an employer\n\nas \"insured\" under chapter 152.4 (Emphasis added).\n\n\n\n\n 4\n Notably, Canada does not dispute the fact that this activity\nwas conducted by the Canadian government, nor does it dispute that\nit was performed in the United States.\n\n\n - 22 -\n\n The District Court appeared, at least at points, to agree\n\nwith Canada that the conduct that we must assess to determine\n\nwhether it is \"commercial\" in nature is Canada's \"decision to\n\nprovide benefits directly under its own [national workers'\n\ncompensation insurance] system.\" In particular, the District\n\nCourt, after describing \"[t]he determinative question\" at the\n\nfirst step of the inquiry as being \"whether [Canada's] decision\n\nnot to purchase workers' compensation insurance is commercial in\n\nnature,\" ultimately concluded that Canada's \"decision to provide\n\nits own benefits does not fall under the commercial activit[y]\n\nexception because the decision to create and organize a workers'\n\ncompensation program is sovereign in nature.\" Merlini, 280 F.\n\nSupp. 3d at 257 (emphasis added).\n\n The State Department, in its amicus brief, also endorsed\n\nthis position as an alternative to its argument that the gravamen\n\nof Merlini's claim is more appropriately characterized as a\n\n\"noncommercial tort.\" The Department contends that \"Canada opted\n\nout of the Massachusetts workers' compensation system in a manner\n\navailable exclusively to sovereigns -- by enacting a statute\n\ncreating an alternate and uniform compensation regime for all\n\nCanadian employees, wherever in the world they might be.\"\n\n But, while Canada and the District Court are right that\n\nMerlini's claim does rely on § 66, nothing in § 66, or, for that\n\nmatter, the whole of chapter 152, makes how an \"uninsured\" employer\n\n\n - 23 -\n\nchooses to compensate an injured employee of any relevance to a\n\nchapter 152 claim for damages against that employer. Chapter 152\n\nrequires, in relevant part, only that an employee must show \"that\n\n[the employer] had to carry worker's [sic] compensation insurance\"\n\nfor an employee and \"that [the employer] did not carry it.\" Beath\n\nv. Nee, 74 Mass. App. Ct. 1119, 1119 (2009) (unpublished). The\n\nstatute does not require any showing regarding what alternative\n\nmeans, if any, the employer may have used to compensate the\n\nemployee once the employee has shown that the employer was not\n\ninsured within the meaning of chapter 152. Thus, while we must\n\n\"zero[] in on the core\" of her claim, Sachs, 136 S. Ct. at 396,\n\nand while we may not unduly seize upon merely one element of her\n\nclaim, see id. at 394-96, Merlini's claim is in no sense \"based\n\non\" Canada's decision to compensate her through its own national\n\nworkers' compensation system. See Sachs, 136 S. Ct. at 395\n\n(explaining that \"a court should identify . . . those elements\n\n. . . that, if proven, would entitle a plaintiff to relief, . . .\n\nand the gravamen of the complaint\" (internal citations omitted)).\n\n That is not to say, though, that we reject Canada's\n\ncontention that its decision to forgo insurance forms part of what\n\nmay be understood to be the gravamen of Merlini's claim. We may\n\nassume that it does. Cf. Nelson, 507 U.S. at 358 n.4. But, even\n\nif we do, we cannot ignore that Canada failed to obtain what\n\nMassachusetts courts describe as \"workers' compensation\n\n\n - 24 -\n\ninsurance,\" see LaClair v. Silberline Mfg. Co., Inc., 393 N.E.2d\n\n867, 869 (Mass. 1979), and that Merlini's claim is based on the\n\nfact that she is an employee who was injured during the course of\n\nher employment while her employer failed to possess that type of\n\ninsurance. See El-Hadad, 496 F.3d at 663 (declining to divorce\n\nthe conduct on which a breach of contract claim was based -- the\n\nbreach -- from the \"employment context\" in which it occurred).\n\nThus, even accepting that the gravamen of Merlini's claim relates\n\nto Canada's failure to obtain the requisite insurance, our inquiry\n\ninto whether it is based on \"commercial activity\" would require us\n\nto examine whether that failure -- given the employment context in\n\nwhich it occurred -- constitutes \"commercial activity.\"\n\n In so doing, we must keep in mind that the\n\ncharacterization of conduct as \"commercial activity\" turns on its\n\n\"nature\" rather than its \"purpose.\" 28 U.S.C. § 1603(d). Thus,\n\na sovereign's conduct constitutes \"commercial activity\" if \"the\n\nparticular actions that the foreign state perform[ed] (whatever\n\nthe motive behind them) [were] the type of actions by which a\n\nprivate party engages in 'trade and traffic or commerce,'\" Fagot\n\nRodriguez, 297 F.3d at 6 (alterations in original) (quoting\n\nWeltover, 504 U.S. at 614). Applying that test, we conclude that\n\nCanada's employment of Merlini without obtaining the requisite\n\ninsurance is properly deemed to be \"commercial activity,\" at least\n\ngiven that Merlini is a United States citizen whom Canada employed\n\n\n - 25 -\n\nin Boston as clerical staff and that she seeks recovery for the\n\ninjury she suffered while performing her clerical duties.5\n\n 1.\n\n We start by considering whether, in general, an\n\nemployer's failure, in employing its workers, to be insured within\n\nthe meaning of chapter 152 is the type of conduct \"by which a\n\nprivate party engages in 'trade and traffic or commerce.'\" Fagot\n\nRodriguez, 297 F.3d at 6 (quoting Weltover, 504 U.S. at 614). We\n\nhave little doubt that it is.\n\n Private employers in Massachusetts must regularly decide\n\nwhether, in employing their workers, they should obtain the kind\n\nof insurance that chapter 152 contemplates or whether they instead\n\nshould take the risk of going bare. See, e.g., Brown v. Leighton,\n\n434 N.E.2d 176 (Mass. 1982) (uninsured taxicab driver employer);\n\nBarrett v. Transformer Serv., Inc., 374 N.E.2d 1325 (Mass 1978)\n\n(uninsured transformer service company employer); Truong v. Wong,\n\n775 N.E.2d 405 (Mass. App. Ct. 2002) (uninsured tofu manufacturing\n\n\n\n\n 5 Although we recognize that courts are instructed to give\n\"special attention\" to the State Department's views on matters of\nforeign immunity, see Jam v. Int'l Finance Corp., 139 S. Ct. 759,\n770-71 (2019) (quoting Bolivarian Republic of Venezuela v.\nHelmerich & Payne Int'l. Drilling Co., 137 S. Ct. 1312, 1320\n(2017)), we are aware of no authority that would instruct us to\nadopt the Department's views if we conclude -- as we do\nhere -- that they would have us run afoul of the statutory\ninstruction that we not permit the purposes behind foreign state\nactions to serve as proxies for the nature of those actions. 28\nU.S.C. § 1603(d); Weltover, 504 U.S. at 614.\n\n\n - 26 -\n\nplant employer). That decision by employers about their approach\n\nto insuring themselves against their employees' workplace injuries\n\nimpacts the overall financial wellbeing of the employers'\n\nbusinesses and generally concerns parties (namely, their\n\nbusinesses' employees) who have commercial expectations about the\n\nrecourse that they will have against their employers in the event\n\nthat they suffer a workplace injury. See, e.g., Truong, 775 N.E.2d\n\nat 408 (establishing that the corporation president did not\n\npurchase workers' compensation insurance because it was \"too\n\nexpensive\"); see also Rush-Presbyterian-St. Luke’s Med. Ctr. v.\n\nHellenic Republic, 877 F.2d 574, 580-81 (7th Cir. 1989) (describing\n\nthe commercial obligations that arise out of traditionally\n\nprivate, third-party transactions).6\n\n In recognizing the commercial nature of this choice by\n\na business to go bare in employing someone, we do not mean to\n\nquestion whether Canada was in so \"choosing\" -- while nonetheless\n\nemploying Merlini, a United States citizen, as a clerical worker\n\n\n\n\n 6\n Of course, it may be that, in some instances, a private\nbusiness's failure to become insured within the meaning of chapter\n152 is less the product of a commercial choice than a commercial\noversight, see, e.g., O'Dea v. J.A.L., Inc., 569 N.E.2d 841 (Mass.\nApp. Ct. 1991) (employer alleged to be uninsured due to a policy\nlapse), especially given how disadvantageous such a decision would\nappear to be for the employer. But, such an oversight still takes\nplace in the course of the business's employment of its workers\nand in parallel with its business judgments about how to protect\nagainst the commercial losses that might be incurred in consequence\nof those workers suffering a workplace injury.\n\n\n - 27 -\n\nin its consulate in Boston -- motivated by what it characterizes\n\nas its sovereign obligation to provide its employees protection\n\nthrough its own national workers' compensation system. In fact,\n\nCanada asserts that it has no legal authority -- given the\n\nlimitations that it contends that Canadian law imposes -- to act\n\notherwise. But, in light of the Supreme Court's decision in\n\nWeltover, it is clear that the \"motive behind\" Canada's conduct in\n\nemploying Merlini without obtaining the requisite insurance is not\n\ngermane to the question of whether the activity of doing just that\n\nis \"commercial\" for purposes of the FSIA's \"commercial activity\"\n\nexception. Fagot Rodriguez, 297 F.3d at 6 (quoting Weltover, 504\n\nU.S. at 614); see also 28 U.S.C. § 1603(d).\n\n In Weltover, the plaintiffs brought a breach of contract\n\nclaim against Argentina after it defaulted on its bonds. Weltover,\n\n504 U.S. at 610. Argentina argued in response that foreign\n\nsovereign immunity protected it from the suit, pointing to the\n\nfact that the bonds were not issued for the ordinary commercial\n\npurpose of \"raising capital or financing acquisitions\" but instead\n\nas instruments for refinancing sovereign debt. Id. at 616.\n\nAccording to Argentina, these refinancing measures were required\n\nas part of the government's program for addressing its domestic\n\ndebt crisis. Id. Argentina thus argued that its decision not to\n\nrepay the bonds was part of a governmental policy undertaken for\n\nsovereign rather than commercial reasons and therefore that the\n\n\n - 28 -\n\nclaim was based on activity that could not qualify as commercial\n\nfor FSIA purposes. Id. at 616-17.\n\n The Supreme Court rejected Argentina's contention. Id.\n\nat 617. According to the Court, Argentina had defaulted on what\n\nit termed \"garden-variety debt.\" Id. at 615. Argentina's bonds,\n\nlike private bonds, were negotiable, were traded on international\n\nmarkets, and came with the promise of future repayment. Id. Thus,\n\nfor purposes of determining whether Argentina's default on those\n\nbonds was \"commercial activity,\" the Court explained that\n\nArgentina's participation in the bond market was of a type that\n\nwas commercial in nature and thus that it was \"irrelevant why\n\nArgentina participated in the bond market.\" Id. (emphasis in\n\noriginal).\n\n Canada, of course, did not issue bonds. But, it did\n\nemploy a United States citizen as clerical staff in its Boston\n\nconsulate, thereby engaging in conduct that it does not dispute\n\nqualifies as being \"commercial\" in nature. Nor does Canada dispute\n\nthat private businesses, when employing such clerical workers, are\n\nsubject to the very same obligation to obtain insurance in\n\ncompliance with chapter 152 -- insofar as they wish to avoid being\n\nsubjected to personal injury suits such as Merlini brings -- or\n\nthat their employment of such workers without having such\n\ninsurance, as applied to those businesses, constitutes an activity\n\nthat is commercial in nature.\n\n\n - 29 -\n\n We thus do not see how Canada's maintenance of a\n\n\"garden-variety\" employment relationship with Merlini while not\n\nmaintaining such insurance is an activity that is any less\n\n\"commercial\" in nature than was Argentina's default on\n\n\"garden-variety\" debt in Weltover. In each case, the foreign state\n\ncan point to a sovereign \"purpose\" in acting as it did. But in\n\nneither case does that reason speak to the \"nature\" of the foreign\n\nsovereign's conduct.7 As a result, Canada provides no more reason\n\n\n 7 The dissent argues that, in attempting to identify the\n\"nature\" of Merlini's claim, we ignore the \"outward form of\n[Canada's] conduct,\" which the dissent characterizes as \"informing\nMerlini that she was subject to the GECA . . . , compensating her\npursuant to the GECA's benefits scheme after she made a claim of\ninjury, and not continuing her benefits when Canada's Workplace\nSafety and Insurance Board (WSIB) determined after a full process\nthat Merlini was ready to return to work.\" However, none of these\nactions constitutes the \"outward conduct\" that forms the basis of\nMerlini's claim against the Canadian government. The only \"outward\nconduct\" on Canada's part that Merlini needs to prove to succeed\nin her claim is defined by the elements of the claim that § 66\npermits her to bring. Those elements make clear that she must\nprove that Canada was her employer in Massachusetts when she\nsuffered the workplace injury for which she seeks recompense and\nthat Canada did not comply with the state's workers' compensation\nrequirements while having her in its employ. In fact, had Canada\nregistered as a self-insurer in compliance with chapter 152, it\ncould have performed each of the \"outward\" actions that the dissent\noutlines and Merlini would not have had a claim that she could\nbring under Massachusetts law. This point shows that the \"outward\nconduct\" described by the dissent is simply immaterial to the claim\nthat Merlini brings here, such that her claim can in no sense be\nunderstood to be \"based on\" it. She has a cause of action under\nMassachusetts law against Canada for the workplace injury that she\nsuffered only because Canada employed her and, as her employer,\ndid not comply with the state's workers' compensation\nrequirements. Because that kind of conduct is the kind of conduct\nthat private employers engage in regularly it is conduct that is\n\n\n\n - 30 -\n\nfor us to conclude that its conduct is \"sovereign\" rather than\n\n\"commercial\" than Argentina provided for the Court in Weltover.\n\n Moreover, we note that, in deciding Weltover, the\n\nSupreme Court relied in part on the Seventh Circuit's reasoning in\n\nRush-Presbyterian. Weltover, 504 U.S. at 614. There, Greece had\n\nentered into contracts with American doctors but then only\n\npartially paid them for their services. Rush-Presbyterian, 877\n\nF.2d at 575-76. The Greek government pointed out that it had\n\nassumed these obligations as part of its comprehensive scheme to\n\nprovide healthcare to all of its citizens. Id. at 580. According\n\nto Greece, the fact that its healthcare system was not\n\nprofit-seeking, was funded by taxpayers, and operated through its\n\nown set of administrative proceedings, placed Greece's activity in\n\nretaining the doctors' services -- and thus its alleged failure to\n\npay them fully for those services -- squarely in the realm of\n\nsovereign rather than \"commercial activity.\" Id. at 580-81.\n\n The Seventh Circuit disagreed. The court made clear\n\nthat \"private parties in the United States enter such agreements\n\nroutinely\" and that \"the 'basic exchange' of money for health care\n\nservices is the same\" whether the payer is a government or a\n\nprivate employer. Id. at 581. The court thus ruled that Greece's\n\n\n\n\nproperly characterized as \"commercial activity,\" at least given\nMerlini's particular attributes as a United States citizen working\nin the Boston consulate as clerical staff.\n\n\n - 31 -\n\nreasons for characterizing its conduct as noncommercial related\n\nonly to the purpose underlying Greece's decision to enter into the\n\ncontracts with the doctors and then not to pay them fully, rather\n\nthan to the nature of the decision to enter into those contracts\n\nor to breach them. Id. at 580. And, for that reason, the Seventh\n\nCircuit rejected Greece's contention that the \"commercial\n\nactivity\" exception did not apply.\n\n Here, Canada, like Greece, entered into a contract for\n\ncommercial services -- in this case, in the form of its employment\n\ncontract with Merlini, given that Canada does not dispute the\n\n\"commercial\" nature of Canada's employment of her as clerical staff\n\nat the consulate. And, then, after having done so, Canada, like\n\nGreece, failed to do what state law required of employers engaged\n\nin such typical commercial employment relationships -- namely, in\n\nthis case, to be \"insured\" within the meaning of chapter 152 in\n\nemploying Merlini.\n\n To be sure, the existence of Canada's own national\n\nworkers' compensation system may explain Canada's motive for\n\nmaking a type of decision regularly made by private commercial\n\nactors. But, the existence of the foreign sovereign's system of\n\nsocial insurance in Rush-Presbyterian helped to explain the\n\npurpose behind that sovereign's failure to undertake a duty\n\ncommonly required of employers engaged in commercial employment\n\n\n\n\n - 32 -\n\nrelationships. Yet, Rush-Presbyterian makes clear that such a\n\nfact does not thereby alter the commercial nature of that failure.\n\n 2.\n\n Notwithstanding Weltover and Rush-Presbyterian, Canada\n\ncontends that this case is actually more closely analogous to both\n\nJungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020\n\n(D.C. Cir. 1997) and Anglo-Iberia Underwriting Mgmt. v. P.T.\n\nJamsostek, 600 F.3d 171 (2d Cir. 2010), in which the \"commercial\n\nactivity\" exception was held not to apply. See Jungquist, 115\n\nF.3d at 1024; Anglo-Iberia, 600 F.3d at 176. Neither case,\n\nhowever, supports Canada's position.\n\n In Jungquist, the D.C. Circuit held that the \"commercial\n\nactivity\" exception was inapplicable to claims brought against\n\nofficials of the government of the United Arab Emirates for actions\n\nthat those officials took in administering the Abu Dhabi medical\n\nprogram in compliance with the Crown Prince Court's orders. 115\n\nF.3d at 1020. Specifically, the court determined that the\n\nofficials engaged in no \"commercial activity\" with the plaintiffs,\n\nbut instead \"fulfilled [the government's] obligations to the\n\n[plaintiffs] by performing their official tasks as\n\nadministrators.\" Id. at 1030.\n\n In Anglo-Iberia, the Second Circuit held that the\n\n\"commercial activity\" exception did not apply to claims against\n\nthe Indonesian government for a fraud perpetrated by its employees\n\n\n - 33 -\n\nin their capacities as administrators of the state-owned social\n\nsecurity insurer, Jamsostek. 600 F.3d at 174. The court noted\n\nthat providing insurance is an activity that both the government\n\nand private markets perform. But, the court explained, Jamsostek\n\ndid not operate like a private insurer and therefore its wrongful\n\nadministration of that government-run insurance program did not\n\nqualify as \"commercial activity.\" Id. at 176.\n\n The reason that neither Jungquist nor Anglo-Iberia aids\n\nCanada's cause is simple. In each of those cases, the claims at\n\nissue were based on the defendants' administration of the\n\ngovernment programs at issue independent of any conduct by the\n\nforeign state as the employer of the plaintiffs, such that it was\n\nthe manner of the administration of those programs -- and not the\n\nmanner of the foreign state's employment of the plaintiffs -- that\n\nwas alleged to be wrongful.\n\n Merlini's claim is quite distinct. Even on Canada's\n\naccount, insofar as Merlini's claim is based on more than Canada's\n\nemployment of her at the consulate or the conduct that caused the\n\ninjury that she suffered there, her claim is still based on the\n\nCanadian government's decision to employ her for clerical work at\n\nthe Boston consulate while not having the insurance contemplated\n\nby chapter 152. Thus, her claim is not based -- as the claims at\n\nissue in Jungquist and Anglo-Iberia were -- on any allegation that\n\nforeign state officials acted wrongfully in administering a\n\n\n - 34 -\n\ngovernmental program independent of the foreign state's employment\n\nof the plaintiff in circumstances in which such employment\n\nconcededly constitutes \"commercial activity.\"\n\n In that respect, Merlini's claim is no different from\n\nthe claims that other employees have brought against private\n\nbusiness employers that, like Canada, have not insured themselves\n\nin the manner chapter 152 specifies for the injuries that their\n\nworkers may suffer in the workplace. The existence of Canada's\n\nown nationally administered program for compensating workers like\n\nMerlini, in other words, only provides the justification for the\n\nconduct by Canada on which Merlini's claim is based. But that\n\njustification speaks to Canada's \"purpose\" in engaging in that\n\nconduct and not to the \"nature\" of the conduct itself.\n\n In fact, if Canada and the dissent's views prevailed, we\n\nstruggle to understand what recovery for workplace harm -- whether\n\nconcerning wages, benefits, or discriminatory treatment -- an\n\nemployee of a foreign government, who, like Merlini, is a United\n\nStates citizen employed as a clerical worker, could seek from the\n\nemployer under the \"commercial activity\" exception recognized in\n\nthe FSIA. Yet, it is quite clear that Congress, in enacting the\n\n\"commercial activity\" exception to foreign state immunity in the\n\nFSIA, contemplated that some employees of foreign governments\n\nwould be entitled to recover for workplace harm against their\n\nforeign state employer -- namely, those employees that, like\n\n\n - 35 -\n\nMerlini, are United States citizens employed in clerical\n\npositions. See H. Rep. No. 94-1487, at 16 (1976), reprinted in\n\n1976 U.S.C.C.A.N. 6604, 6615 (describing \"[a]ctivities such as a\n\ngovernment's . . . employment or engagement of laborers, clerical\n\nstaff or public relations or marketing agents . . . [as] those\n\nincluded within the definition [of commercial activity]\"). Nor\n\nare we aware of any precedent supporting the notion that employees\n\nlike Merlini lose their right to recover against their foreign\n\nstate employer whenever that foreign employer establishes rules\n\ndifferent from ours for protecting them.8\n\n 3.\n\n Finally, Canada contends that a ruling that it must\n\ncomply with the MWCA's insurance requirements or be stripped of\n\nmany common law defenses in any suit claiming damages for a\n\n\n\n\n 8 The dissent relatedly argues that the \"commercial activity\"\nexception should not apply to Canada in this context because, due\nto Canada's own workers' compensation law, the government was not\nallowed to comply with Massachusetts' insurance requirements under\nchapter 152. We fail to see how Canada's legislative prohibition\nagainst obtaining the type of insurance that would qualify Canada\nas being \"insured\" for purposes of chapter 152 renders the act of\nnot acquiring compliant insurance any less \"commercial\" in nature.\nAs we have already argued, while Canada's sovereign workers'\ncompensation regime clearly provides the motivation for its\ndecision not to acquire compliant insurance under chapter 152,\nthat motivation does not strip Canada's decision not to provide\nthe requisite insurance of its \"commercial\" character, any more\nthan the presidential decree directing Argentina to default on its\nbonds stripped that act of its \"commercial\" character in Weltover\nby way of constituting executive action. See Weltover, 504 U.S.\nat 610.\n\n\n - 36 -\n\nworkplace injury brought by an employee against the employer would\n\n\"produce an absurd result.\" Such a conclusion, Canada contends,\n\nwould essentially force Canada to subject itself to having\n\nMassachusetts assess its solvency through semi-annual audits and\n\nvarious deposit requirements. According to Canada, that kind of\n\nintrusion into its finances \"would violate basic principles of\n\ncomity\" that foreign sovereign immunity exists to protect. Thus,\n\nfor this reason, too, Canada contends, the \"commercial activity\"\n\nexception cannot be construed to apply here.\n\n We may, for present purposes, set aside the fact, which\n\nCanada does not contest, that some foreign consulates as well as\n\nthe Quebec Government Office in Boston, which is a political\n\nsubdivision of Canada for the purposes of FSIA applicability,\n\napparently have obtained the insurance required by chapter 152.\n\nThe more fundamental point is that Canada's concerns about \"comity\"\n\ndo not provide a basis for concluding that it is immune from suit\n\nin this case.\n\n As Canada rightly points out, the \"FSIA's objective is\n\nto give protection from the inconvenience of suit as a gesture of\n\ncomity.\" Bolivarian Republic of Venezuela v. Helmerich & Payne\n\nInt’l Drilling Co., 137 S. Ct. 1312, 1322 (2017) (internal\n\nquotations omitted) (noting that the FSIA was drafted with comity\n\nconcerns in mind). But, by including the \"commercial activity\"\n\nexception in the FSIA, Congress made clear that those concerns do\n\n\n - 37 -\n\nnot provide a reason to extend that protection to foreign states\n\nwith respect to a suit that the \"commercial activity\" exception\n\nencompasses. Thus, an appeal to comity cannot in and of itself\n\nexplain why a foreign state's conduct that is encompassed by that\n\nexception should be treated as if it is not.\n\n Perhaps there is a case to be made that such comity\n\nconcerns are relevant to a merits determination -- as a matter of\n\nMassachusetts or federal law -- that chapter 152's \"insurance\"\n\nrequirement does not apply to a foreign sovereign in the same way\n\nthat it applies to private employers. But, FSIA immunity applies\n\nonly if, under the analysis that we must apply, see Weltover, 504\n\nU.S. at 614; Fagot, 297 F.3d at 5–6, the conduct on which Merlini's\n\nclaim is based is not \"commercial\" in nature. And, for the reasons\n\nthat we have explained, the conduct here is commercial in nature,\n\neven though it may have been undertaken for sovereign reasons.\n\nCanada's appeal to comity, therefore, adds nothing to its argument,\n\nwhich we otherwise reject, that the \"commercial activity\"\n\nexception does not apply here. And thus, Canada's comity concerns\n\nprovide no basis for concluding that Canada enjoys an immunity\n\nfrom this suit pursuant to the FSIA such that no federal court\n\neven has jurisdiction to make a merits judgment.\n\n In its amicus brief, the State Department advances many\n\nsimilar \"comity\" concerns to those presented by Canada. But,\n\nalthough we give \"special attention\" to the State Department's\n\n\n - 38 -\n\nviews on matters of foreign policy, see Jam, 139 S. Ct. at 770-71,\n\nwe decline to place much weight on those views here. The\n\nDepartment itself does not view recovery by an employee like\n\nMerlini under § 66 against a foreign state employer to be\n\nnecessarily adverse to United States foreign policy interests,\n\ngiven that it argues to us that Canada might lack immunity from\n\nMerlini's claim under the FSIA's \"noncommercial tort\" exception,\n\n28 U.S.C. § 1605(a)(5). And, as we have explained, the Department\n\nsets forth no basis in the legislative history or text of the\n\nFSIA -- or in any precedent construing it -- for finding that\n\nCanada is immune from a suit under § 66 that is brought by a\n\nclerical worker like Merlini.\n\n IV.\n\n Having determined that the FSIA does not prohibit\n\nMerlini's suit, Canada argues that we should nevertheless affirm\n\nthe District Court's dismissal on a ground not reached by the\n\nDistrict Court. Specifically, Canada argues that Merlini has\n\nfailed to state a claim upon which relief can be granted, see Fed.\n\nR. Civ. P. 12(b)(6), because the DIA Board's ruling operates to\n\npreclude Merlini's suit.\n\n The parties agree that we apply Massachusetts issue\n\npreclusion law. In re Baylis, 217 F.3d 66, 70-71 (1st Cir. 2000).\n\nCanada contends that the DIA Board's conclusion that \"Canada is\n\nnot uninsured in violation of [the MWCA]\" should be entitled to\n\n\n - 39 -\n\npreclusive effect and thus bars Merlini's \"relitigation\" of that\n\nissue in federal court.\n\n In order for an issue to have preclusive effect in a\n\nlater proceeding under Massachusetts law, the following elements\n\nmust be present: (1) there was a final judgment on the merits in\n\nthe prior adjudication; (2) the party against whom preclusion is\n\nasserted was a party to the prior adjudication; and (3) the issue\n\nin the prior adjudication was identical to the issue in the current\n\nadjudication and essential to the earlier judgment. See Kobrin v.\n\nBd. of Registration in Med., 832 N.E.2d 628, 634 (Mass. 2005); see\n\nalso In re Baylis, 217 F.3d at 71. An order from a state agency\n\nis considered to be a final judgment for issue preclusion purposes,\n\nhowever, only if it is unappealed. See, e.g., Almeida v. Travelers\n\nIns. Co., 418 N.E.2d 602, 605 (Mass. 1981) (noting that the\n\ndetermination of an agency is not binding for preclusion purposes\n\nafter it has been appealed). And here, Merlini appealed the DIA\n\nBoard's ruling to the MAC. Thus, it is to the MAC's ruling that\n\nwe must look.\n\n The MAC's ruling, however, is of no help to Canada's\n\ncontention that Merlini's claim must be dismissed on issue\n\npreclusion grounds. In affirming the DIA Board's order, the MAC\n\ndid so only on one ground -- namely, that Merlini was not entitled\n\nto recover from the WCTF because she was eligible for benefits in\n\nanother jurisdiction. The MAC expressly stated that it was not\n\n\n - 40 -\n\nruling on whether Canada was subject to the jurisdiction of\n\nMassachusetts or whether the consulate was an \"uninsured\" employer\n\nin violation of chapter 152. For that reason, the MAC's \"judgment\n\nis conclusive [only] as to the first determination.\" In re Baylis,\n\n217 F.3d at 71. And, given that Canada makes no argument, just as\n\nit made none to the District Court, that the judgment as to the\n\nissue that the MAC did decide is preclusive of Merlini's claim,\n\nCanada's argument for dismissal pursuant to Federal Rule of Civil\n\nProcedure 12(b)(6) on the grounds of issue preclusion fails. See\n\nP.R. Tel. Co., Inc. v. San Juan Cable LLC, 874 F.3d 767, 770 (1st\n\nCir. 2017), cert. denied, 138 S. Ct. 1597 (2018) (holding that any\n\nargument not raised in the party's brief is deemed waived).\n\n V.\n\n For the foregoing reasons we reverse the District\n\nCourt's grant of Canada's motion to dismiss and remand the case\n\nfor further proceedings. The parties shall bear their own costs.\n\n\n\n -Dissenting Opinion Follows-\n\n\n\n\n - 41 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Cynthia L. MERLINI, Plaintiff, Appellant, v. CANADA, Defendant, Appellee.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-10\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-2211\\n\\n CYNTHIA L. MERLINI,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n CANADA,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Nathaniel M. Gorton, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Theodore J. Folkman, with whom Murphy & King, P.C. was on\\nbrief, for appellant.\\n John F. Cooney, with whom Benjamin E. Horowitz, Venable LLP,\\nD.E. Wilson, Jr., Andrew E. Bigart, and Liz C. Rinehart were on\\nbrief, for appellee.\\n\\n\\n June 10, 2019\\n\\n BARRON, Circuit Judge. Cynthia Merlini (\\\"Merlini\\\") is\\n\\na United States citizen who was injured in the course of her\\n\\nemployment as an administrative assistant at the Canadian\\n\\nconsulate in Boston, Massachusetts. The injury occurred in 2009\\n\\nwhen she tripped over a cord in the consulate that had not been\\n\\nsecured to the floor. In 2017, as a result of that injury, Merlini\\n\\nsued Canada for damages in the United States District Court for\\n\\nthe District of Massachusetts pursuant to the Massachusetts\\n\\nWorkers' Compensation Act (the \\\"MWCA\\\"), which is codified at\\n\\nMassachusetts General Laws chapter 152.\\n\\n The District Court dismissed Merlini's complaint for\\n\\nlack of jurisdiction after concluding that Canada was immune from\\n\\nthe suit under the Foreign Sovereign Immunities Act (\\\"FSIA\\\"), 28\\n\\nU.S.C. § 1602 et. seq. We now reverse.\\n\\n I.\\n\\n In 2003, the government of Canada hired Merlini -- who\\n\\nis a resident of Massachusetts, a citizen of the United States,\\n\\nand not a citizen of Canada -- to be an administrative assistant\\n\\nto the Consul General of Canada in Boston. Merlini asserts, and\\n\\nCanada does not contest, that her \\\"duties\\\" in this position \\\"were\\n\\npurely clerical, and comparable to the duties of an assistant or\\n\\nsecretary to an executive in any private firm,\\\" as \\\"[s]he answered\\n\\nthe phones, maintained files, typed letters, and did other\\n\\nsecretarial work\\\" in the Canadian consulate in Boston. She further\\n\\n\\n - 2 -\\n\\nasserts, again without dispute, that \\\"[s]he was not a consular\\n\\nofficer,\\\" \\\"[s]he had no governmental, consular, diplomatic, or\\n\\nofficial duties,\\\" \\\"[s]he took no competitive examination before\\n\\nhiring,\\\" and \\\"she was not entitled to tenure protections, or to\\n\\nthe employment benefits Canadian foreign service officers\\n\\nreceived.\\\"\\n\\n Merlini alleges that, while setting up coffee and tea\\n\\nservice on January 22, 2009 for a meeting at the consulate, she\\n\\ntripped over an unsecured speakerphone cord, fell, struck a\\n\\ncredenza, and thereby sustained \\\"a serious injury\\\" that left her\\n\\nunable to work. Canada does not challenge that allegation for the\\n\\npurpose of the present appeal. Additionally, it is undisputed\\n\\nthat, per Canada's own national workers' compensation system,\\n\\nCanada paid Merlini what amounted to her full salary from shortly\\n\\nafter the accident until October 2009.\\n\\n Sometime thereafter, however, Canada determined that\\n\\nMerlini was able to return to work and ceased paying her pursuant\\n\\nto its national workers' compensation system. That determination\\n\\nappears to have set matters on the course that has resulted in the\\n\\nsuit that is now before us on appeal.\\n\\n The initial step on that course was Merlini's request\\n\\nthat Canada reconsider its determination to stop paying her under\\n\\nCanada's workers' compensation system. Following Canada's denial\\n\\n\\n\\n\\n - 3 -\\n\\nof that request for reconsideration, Merlini shifted course and\\n\\nsought relief under Massachusetts law.\\n\\n Merlini did so first, in 2011, by bringing an\\n\\nadministrative claim against the Massachusetts Workers'\\n\\nCompensation Trust Fund (\\\"WCTF\\\"). That fund provides, among other\\n\\nthings, for the payment of benefits to employees who are unable to\\n\\nwork in consequence of workplace injuries that they have suffered\\n\\nwhile working for an employer who is subject to personal\\n\\njurisdiction within the Commonwealth and who is \\\"uninsured\\\" for\\n\\npurposes of the MWCA. See Mass. Gen. Laws ch. 152 § 65(2)(e).\\n\\nChapter 152 provides that, to qualify as \\\"insured,\\\" an employer\\n\\nmust (1) have insurance with an insurer, (2) hold membership in a\\n\\nworkers' compensation self-insurance group certified by the state,\\n\\nor (3) be licensed as self-insured annually by the state, which\\n\\nrequires the employer, among other things, to complete a detailed\\n\\napplication, provide certain financial information, post a surety\\n\\nbond to or deposit negotiable securities with the state to cover\\n\\nany losses that may occur, and purchase catastrophe reinsurance of\\n\\nat least $500,000. See id. at §§ 1(6), 25A; 452 Mass. Code Regs.\\n\\n5.00; see also LaClair v. Silberline Mfg. Co., 393 N.E.2d 867, 871\\n\\n(Mass. 1979).\\n\\n In 2013, the Massachusetts Department of Industrial\\n\\nAccidents (\\\"DIA\\\") held an evidentiary hearing, in which Canada\\n\\nparticipated as amicus curiae for the WCTF, on Merlini's claim\\n\\n\\n - 4 -\\n\\nagainst the fund. An administrative judge found that Merlini was\\n\\nentitled to ongoing incapacity benefits from the fund under chapter\\n\\n152 § 34 (temporary total incapacity benefits) and chapter 152\\n\\n§ 34A (permanent total incapacity benefits).\\n\\n The WCTF then appealed this ruling to the DIA's Reviewing\\n\\nBoard (\\\"DIA Board\\\"). In 2015, the DIA Board reversed the\\n\\nadministrative judge's ruling and denied Merlini the benefits from\\n\\nthe fund. The DIA Board determined that (1) Canada was not\\n\\n\\\"subject to the personal jurisdiction of the Commonwealth\\\"; (2)\\n\\nCanada was not \\\"uninsured\\\" for purposes of the statute because it\\n\\nhad sovereign immunity; and (3) the WCTF was not liable if an\\n\\nemployee was entitled to workers' compensation benefits in any\\n\\nother jurisdiction, Mass. Gen. Laws ch. 152 § 65(2)(e)(i), and\\n\\nMerlini was in fact entitled under Canadian law to such benefits\\n\\nunder Canada's national workers' compensation system.\\n\\n In 2016, Merlini sought review of the DIA Board's ruling\\n\\nfrom the Massachusetts Appeals Court (\\\"MAC\\\"). The MAC upheld the\\n\\nBoard's ruling. The MAC did so, however, only on the ground that,\\n\\nin consequence of the injury that Merlini suffered at the\\n\\nconsulate, she had been entitled to benefits in another\\n\\njurisdiction -- namely, Canada. Thus, the MAC did not \\\"address\\n\\nwhether the Canadian government is subject to the jurisdiction of\\n\\nthe Commonwealth or whether the Consulate was an 'uninsured\\n\\nemployer' in violation of chapter 152.\\\"\\n\\n\\n - 5 -\\n\\n Merlini did not appeal the MAC's ruling. Instead, in\\n\\n2017, Merlini sued Canada for damages in federal district court in\\n\\nthe District of Massachusetts pursuant to chapter 152. It is that\\n\\nsuit that is the subject of this appeal.\\n\\n Canada moved to dismiss Merlini's suit on jurisdictional\\n\\ngrounds under Federal Rule of Civil Procedure 12(b)(1). Canada\\n\\ncontended in its motion that it was entitled to foreign sovereign\\n\\nimmunity under the FSIA and thus that the District Court lacked\\n\\njurisdiction. Canada also separately moved to dismiss Merlini's\\n\\nsuit under Federal Rule of Civil Procedure 12(b)(6) for failure to\\n\\nstate a claim. Canada did so on the ground that the DIA Board's\\n\\nruling that Canada was not \\\"uninsured\\\" was preclusive of Merlini's\\n\\nclaim because the DIA Board had ruled on that basis that Canada\\n\\n\\\"was not required to obtain local workers' compensation insurance\\n\\nor register with the state as a self-insurer and therefore could\\n\\nnot be considered an uninsured employer\\\" under the MWCA.\\n\\n In opposing Canada's motion to dismiss, Merlini first\\n\\nasserted that two exceptions to the FSIA's presumption of foreign\\n\\nsovereign immunity applied: the \\\"commercial activity\\\" exception,\\n\\n28 U.S.C. § 1605(a)(2),1 and the \\\"noncommercial tort\\\" exception,\\n\\n\\n 1 This provision states that:\\n A foreign state shall not be immune from the\\n jurisdiction of courts of the United States or of\\n the States in any case in which the action is based\\n upon a commercial activity carried on in the United\\n\\n\\n\\n - 6 -\\n\\nid. at § 1605(a)(5).2 Merlini thus contended that the District\\n\\nCourt had jurisdiction over Canada. Merlini also argued that she\\n\\nhad stated a claim against Canada because the DIA Board ruling did\\n\\nnot preclude her claim.\\n\\n In December 2017, the District Court dismissed Merlini's\\n\\ncomplaint for lack of jurisdiction on the grounds that, pursuant\\n\\nto the FSIA, Canada is \\\"'presumptively immune' from liability in\\n\\nfederal courts of the United States\\\" and that Merlini had failed\\n\\nto demonstrate that either of the two FSIA exceptions on which she\\n\\n\\n\\n\\n States by the foreign state; or upon an act\\n performed in the United States in connection with\\n a commercial activity of the foreign state\\n elsewhere; or upon an act outside the territory of\\n the United States in connection with a commercial\\n activity of the foreign state elsewhere and that\\n act causes a direct effect in the United States.\\n 2 This provision states that:\\n A foreign state shall not be immune from the\\n jurisdiction of courts of the United States or of\\n the States in any case not otherwise encompassed in\\n paragraph (2) [the \\\"commercial activity\\\" exception]\\n above, in which money damages are sought against a\\n foreign state for personal injury or death, or\\n damage to or loss of property, occurring in the\\n United States and caused by the tortious act or\\n omission of that foreign state or of any official\\n or employee of that foreign state while acting\\n within the scope of his office or employment;\\n except this paragraph shall not apply to -- (A) any\\n claim based upon the exercise or performance or the\\n failure to exercise or perform a discretionary\\n function regardless of whether the discretion be\\n abused, or (B) any claim arising out of malicious\\n prosecution, abuse of process, libel, slander,\\n misrepresentation, deceit, or interference with\\n contract rights.\\n\\n - 7 -\\n\\nrelied in contesting Canada's sovereign immunity applied. Merlini\\n\\nv. Canada, 280 F. Supp. 3d 254, 256, 258 (D. Mass. 2017) (quoting\\n\\nSaudi Arabia v. Nelson, 507 U.S. 349, 355 (1993)). The District\\n\\nCourt \\\"decline[d] to address\\\" Canada's separate contention that\\n\\nMerlini had failed to state a claim for which relief could be\\n\\ngranted. Id. at 259. Merlini now appeals the District Court's\\n\\ndismissal of her claim for lack of jurisdiction and also contends\\n\\nthat the dismissal of her claim may not be affirmed on issue\\n\\npreclusion grounds.\\n\\n II.\\n\\n We start by describing certain aspects of the\\n\\nMassachusetts workers' compensation scheme, as codified by chapter\\n\\n152 of the MWCA. Those provisions figure prominently in the\\n\\nparties' dispute over whether Canada is entitled to foreign\\n\\nsovereign immunity in this case.\\n\\n As a general matter, the MWCA bars an employee from suing\\n\\nher employer for a work-related injury -- including one resulting\\n\\nfrom a fellow employee's conduct -- when the employer is \\\"insured\\\"\\n\\nwithin the meaning of the MWCA. See Mass. Gen. Laws ch. 152 § 24.\\n\\nThe MWCA imposes this bar by providing that an employee waives the\\n\\n\\\"right of an action at common law . . . [with] respect to an injury\\n\\nthat is compensable under [the MWCA]\\\" if the employer was insured\\n\\nwithin the meaning of the MWCA at the time of the employee's hiring\\n\\nor became insured prior to the employee's injury, unless the\\n\\n\\n - 8 -\\n\\nemployee preserves such a right by providing proper notice of the\\n\\nemployee's intent to preserve it. Id.\\n\\n Chapter 152, however, sets forth a corollary to this\\n\\nbar. It provides that, if an employer is not insured within the\\n\\nmeaning of the MWCA, then an employee, generally, may bring a suit\\n\\nagainst the employer to recover for a workplace injury -- even if\\n\\nthe conduct is caused by a fellow employee. See Hanover Ins. Co.\\n\\nv. Ramsey, 539 N.E.2d 537, 538 n.3 (Mass. 1989) (\\\"An employer who\\n\\nhas failed to obtain workers' compensation insurance can be held\\n\\nliable essentially in all cases in which the employee can prove\\n\\nthat he was injured in the course of his work.\\\").\\n\\n Moreover, chapter 152 makes clear that, in such a suit\\n\\nby the employee, the employer is deprived of asserting a host of\\n\\nimportant defenses that would ordinarily be available at common\\n\\nlaw, which effectively renders the employee's claim against the\\n\\nemployer a \\\"strict liability\\\" claim. See Doe v. Access Indus.,\\n\\nInc., 137 F. Supp. 3d 14, 16 (D. Mass. 2015); Coppola v. City of\\n\\nBeverly, 576 N.E.2d 686, 687 (Mass. App. Ct. 1991). Section 66 of\\n\\nchapter 152 specifies the limitations on the defenses that are\\n\\navailable as follows:\\n\\n Actions brought against employers to recover\\n damages for personal injuries or consequential\\n damages sustained within or without the\\n commonwealth by an employee in the course of\\n his employment . . . shall be commenced within\\n twenty years from the date the employee first\\n became aware of the causal relationship\\n\\n\\n - 9 -\\n\\n between the disability and his employment. In\\n such actions brought by said\\n employees . . . it shall not be a defense: 1.\\n That the employee was negligent; 2. That the\\n injury was caused by the negligence of a\\n fellow employee; 3. That the employee had\\n assumed voluntarily or contractually the risk\\n of the injury; 4. That the employee's injury\\n did not result from negligence or other fault\\n of the employer, if such injury arose out of\\n and in the course of employment.\\n\\n Merlini contends that, because Canada is not insured\\n\\n(even as a self-insurer) within the meaning of chapter 152, she is\\n\\nentitled under chapter 152 to bring her suit against Canada for\\n\\nthe workplace injury that she suffered. And, she further contends,\\n\\nfor that same reason, Canada is subject in her suit to the\\n\\nlimitations on the defenses that are set forth in § 66. Canada\\n\\nargues in response that, precisely because Merlini relies on § 66,\\n\\nit is entitled to immunity under the FSIA, even assuming that\\n\\nCanada does not qualify as being \\\"insured\\\" within the meaning of\\n\\nchapter 152. Thus, Canada contends, Merlini's claim must be\\n\\ndismissed for lack of jurisdiction.\\n\\n We must now decide whether Canada is right. To do so,\\n\\nwe must address Merlini's contention that Canada lacks foreign\\n\\nsovereign immunity in consequence of either of two exceptions to\\n\\nsuch immunity that the FSIA recognizes.\\n\\n\\n\\n\\n - 10 -\\n\\n III.\\n\\n The FSIA \\\"provides the sole basis for obtaining\\n\\njurisdiction over a foreign state in federal court.\\\" Universal\\n\\nTrading & Inv. Co. v. Bureau for Representing Ukrainian Interest\\n\\nin Int'l & Foreign Courts, 727 F.3d 10, 16 (1st Cir. 2013) (quoting\\n\\nArgentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 439\\n\\n(1989)). The FSIA establishes \\\"a presumption of foreign sovereign\\n\\nimmunity from the jurisdiction of the courts of the United States\\\"\\n\\nthat typically controls the jurisdictional question. Id. (citing\\n\\n28 U.S.C. § 1330; Verlinden B.V. v. Cent. Bank of Nigeria, 461\\n\\nU.S. 480, 485 n.5 (1983)). Thus, as a general matter, \\\"courts in\\n\\nthe Unites States lack both subject matter and personal\\n\\njurisdiction over a suit against a foreign sovereign.\\\" Id.\\n\\n The FSIA does, however, set forth a list of express\\n\\nexceptions to the foreign sovereign immunity that it generally\\n\\nrecognizes, such that foreign states are not immune from suit in\\n\\nfederal court if one of those \\\"enumerated exceptions to immunity\\n\\napplies.\\\" Id. (citing 28 U.S.C. §§ 1604, 1605, 1605A; Verlinden,\\n\\n461 U.S. at 488). Merlini invokes two of those exceptions -- the\\n\\n\\\"commercial activity\\\" exception and the \\\"noncommercial tort\\\"\\n\\nexception -- in contending that Canada is not entitled to sovereign\\n\\nimmunity from her suit.\\n\\n We focus here on one of them, the \\\"commercial activity\\\"\\n\\nexception, 28 U.S.C. § 1605(a)(2), as we conclude that, contrary\\n\\n\\n - 11 -\\n\\nto the District Court's ruling, this exception does apply. This\\n\\nconclusion, moreover, precludes the \\\"noncommercial tort\\\" exception\\n\\nfrom applying. See 28 U.S.C. § 1605(a)(5) (providing that \\\"[a]\\n\\nforeign state shall not be immune from the jurisdiction of courts\\n\\nof the United States or of the States in any case not otherwise\\n\\nencompassed in paragraph (2) [the \\\"commercial activity\\\"\\n\\nexception]\\\"). Our review of the District Court's ruling on this\\n\\nscore is de novo. Universal Trading, 727 F.3d at 15.\\n\\n A.\\n\\n The \\\"commercial activity\\\" exception provides in relevant\\n\\npart that \\\"a foreign state is subject to jurisdiction in any case\\n\\n'in which the action is based upon a commercial activity carried\\n\\non in the United States by the foreign state.'\\\" Fagot Rodriguez\\n\\nv. Republic of Costa Rica, 297 F.3d 1, 5 (1st Cir. 2002) (emphasis\\n\\nadded) (quoting 28 U.S.C. § 1605(a)(2)). The inquiry into whether\\n\\nthe exception applies -- at least in a case like this, in which\\n\\nthe parties agree that the foreign state \\\"carried on\\\" the relevant\\n\\naction \\\"in the United States\\\" -- involves two steps.\\n\\n The first step \\\"requires a court to 'identify[] the\\n\\nparticular conduct on which the [plaintiff's] action is based.'\\\"\\n\\nOBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 395 (2015)\\n\\n(alteration in original) (quoting Saudi Arabia v. Nelson, 507 U.S.\\n\\n349, 356 (1993)). In performing that threshold inquiry, \\\"a court\\n\\nshould identify that 'particular conduct' by looking to the 'basis'\\n\\n\\n - 12 -\\n\\nor 'foundation' for a claim,\\\" which the court has variously\\n\\ndescribed as \\\"'those elements . . . that, if proven, would entitle\\n\\na plaintiff to relief'\\\" and as \\\"the gravamen of the complaint.\\\"\\n\\nId. (omission in original) (internal citations omitted) (quoting\\n\\nNelson, 507 U.S. at 357).\\n\\n This inquiry requires more than a myopic focus on whether\\n\\n\\\"one element\\\" of the claim is based upon a \\\"commercial activity\\\"\\n\\nof the foreign state. See id. at 394-96. The right approach looks\\n\\nbeyond the fact that a single element of the claim might be \\\"based\\n\\non\\\" such conduct and instead \\\"zeroe[s] in on the core of\\\" the\\n\\nplaintiff's claim. Id. at 396.\\n\\n After a court identifies the particular conduct by the\\n\\nforeign state on which the plaintiff's claim is \\\"based,\\\" the next\\n\\nstep in the inquiry requires a court to determine whether that\\n\\nconduct qualifies as \\\"commercial activity.\\\" Fagot Rodriguez, 297\\n\\nF.3d at 5. If the conduct does so qualify, then the \\\"commercial\\n\\nactivity\\\" exception to foreign state sovereign immunity applies,\\n\\nat least when, as in this case, the parties do not dispute that\\n\\nthe conduct was \\\"carried on\\\" by the foreign state \\\"in the United\\n\\nStates.\\\"\\n\\n \\\"The term 'commercial activity' encompasses both 'a\\n\\nregular course of commercial conduct' and 'a particular commercial\\n\\ntransaction or act.'\\\" Id. (quoting 28 U.S.C. § 1603(d)). As we\\n\\nhave explained, however, \\\"the question is not whether the foreign\\n\\n\\n - 13 -\\n\\ngovernment [was] acting with a profit motive or instead with the\\n\\naim of fulfilling uniquely sovereign objectives,\\\" but \\\"[r]ather,\\n\\nthe issue is whether the particular actions that the foreign state\\n\\nperform[ed] (whatever the motive behind them) [were] the type of\\n\\nactions by which a private party engages in 'trade and traffic or\\n\\ncommerce.'\\\" Id. at 6 (alterations in original) (quoting Republic\\n\\nof Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992)). Thus,\\n\\n\\\"[i]n assessing whether a certain transaction or course of conduct\\n\\nis commercial in character, courts must look to the 'nature' of\\n\\nthe activity rather than its 'purpose.'\\\" Id. at 5-6; see also 28\\n\\nU.S.C. § 1603(d) (\\\"The commercial character of an activity shall\\n\\nbe determined by reference to the nature of the course of conduct\\n\\nor particular transaction or act, rather than by reference to its\\n\\npurpose.\\\").\\n\\n Against this legal background, the key questions\\n\\nconcerning the \\\"commercial activity\\\" exception that we must\\n\\naddress in this appeal are the following: what conduct is Merlini's\\n\\nclaim against Canada \\\"based on,\\\" and is that conduct \\\"commercial\\n\\nactivity\\\"? We turn, then, to those two questions, starting with\\n\\nthe first.\\n\\n B.\\n\\n In taking up the first question, we begin by observing\\n\\nthat Canada does not dispute that it employed Merlini at its\\n\\nconsulate in Boston, that she is an American citizen and not a\\n\\n\\n - 14 -\\n\\nCanadian citizen, that her employment involved only duties that\\n\\n\\\"were purely clerical,\\\" and that her employment lacked indicia of\\n\\ndiplomatic or civil service.3 Nor does Canada contest, for\\n\\npurposes of this appeal, that Merlini was injured while performing\\n\\nher ordinary clerical duties as Canada's employee in the consulate\\n\\nin Boston.\\n\\n Thus, if Merlini's complaint is \\\"based on\\\" Canada's\\n\\nemployment of her as a clerical worker doing routine clerical work\\n\\nat the consulate in Boston, then the \\\"commercial activity\\\"\\n\\nexception would appear to apply. See H. Rep. No. 94-1487, at 16\\n\\n(1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6615 (describing\\n\\n\\\"[a]ctivities such as a government's . . . employment or engagement\\n\\nof laborers, clerical staff or public relations or marketing agents\\n\\n. . . [as] those included within the definition [of commercial\\n\\nactivity]\\\" (emphasis added)). In fact, Canada does not appear to\\n\\nargue otherwise.\\n\\n The State Department, in its amicus brief, however,\\n\\ncontends that Merlini's complaint is solely \\\"based on\\\" the\\n\\nnegligent conduct by her fellow employee that caused the injury\\n\\nthat she suffered during the course of her employment -- namely,\\n\\n\\n\\n 3As already mentioned, Canada does not contend that Merlini\\nhad governmental, consular, diplomatic, or official duties; took\\na competitive examination before hiring; or was entitled to tenure\\nprotections or the employment benefits Canadian foreign service\\nofficers receive.\\n\\n\\n\\n - 15 -\\n\\nwhat she alleges in her complaint to have been the negligent laying\\n\\nof the cord by that employee. The Department then contends that\\n\\nthis conduct does not qualify as \\\"commercial activity\\\" and thus\\n\\nthat the \\\"commercial activity\\\" exception does not apply. Rather,\\n\\nthe Department contends, the \\\"noncommercial tort\\\" exception is the\\n\\nonly exception that might apply in Merlini's case, insofar as her\\n\\naction under § 66 can be characterized -- notwithstanding the fact\\n\\nthat it strips the employer of asserting an absence of negligence\\n\\nas a defense -- as one that seeks recovery \\\"against a foreign state\\n\\nfor personal injury . . . caused by [a] tortious act or omission.\\\"\\n\\n28 U.S.C. § 1605(a)(5) (emphasis added). The Department thus\\n\\nargues that we should vacate and remand to permit Merlini to\\n\\ndevelop her claim of negligence under the \\\"noncommercial tort\\\"\\n\\nexception.\\n\\n To establish the premise on which this contention\\n\\nrests -- namely, that the suit is based solely on the conduct of\\n\\nMerlini's fellow employee with respect to the speakerphone\\n\\ncord -- the Department invokes the Supreme Court's opinion in Saudi\\n\\nArabia v. Nelson. There, the plaintiff argued that his claims of\\n\\ntorture and false imprisonment at the hands of the Saudi Arabian\\n\\ngovernment were \\\"commercial\\\" in nature because it was his\\n\\nemployment with the Saudi Arabian government that \\\"led to\\\" those\\n\\ninjuries. Nelson, 507 U.S. at 358. The Supreme Court, however,\\n\\ndisagreed. In so deciding, the Court held that it was wrong to\\n\\n\\n - 16 -\\n\\ncharacterize the plaintiff's claims as being \\\"based on\\\"\\n\\n\\\"commercial activity\\\" simply because \\\"commercial activity\\\"\\n\\n\\\"preceded\\\" the conduct from which those claims arose. Id.\\n\\nInstead, the Court stressed that while the plaintiff's employment\\n\\nmay have \\\"led to\\\" his injuries at the hands of the Saudi Arabian\\n\\ngovernment in a temporal sense, the actions that effectuated those\\n\\ninjuries were in no way tied to that employment and were,\\n\\ntherefore, not \\\"commercial\\\" in nature. Id. The Department argues\\n\\nthat the same conclusion is required here.\\n\\n We disagree. The MWCA requires that Merlini prove only\\n\\nthat she was injured in the workplace in the course of her\\n\\nemployment with Canada. Consequently, Merlini is not required to\\n\\nprove -- as the plaintiff in Nelson was required to prove as to\\n\\nhis claims for battery, unlawful detainment, wrongful arrest and\\n\\nimprisonment, false imprisonment, inhuman torture, disruption of\\n\\nnormal family life, and infliction of mental anguish -- any action\\n\\nby any person that caused the underlying injury. She has to prove,\\n\\ninstead, that she suffered a workplace injury in the course of her\\n\\nemployment and that the defendant, Canada, was her employer. Given\\n\\nthat courts have held that an employer's maintenance of a hostile\\n\\nor discriminatory work environment constitutes \\\"commercial\\n\\nactivity\\\" for the purposes of a Title VII suit against an employer,\\n\\n42 U.S.C. § 2000e–2(a), -- see, e.g., Holden v. Canadian Consulate,\\n\\n92 F.3d 918, 922 (9th Cir. 1996); Ashraf-Hassan v. Embassy of\\n\\n\\n - 17 -\\n\\nFrance in United States, 40 F. Supp. 3d 94, 102-03 (D.D.C.\\n\\n2014) -- we fail to see why that same logic does not apply to\\n\\nMerlini’s § 66 claim against her employer for workplace injuries\\n\\nsuffered by employees during the course of their employment. Hers\\n\\nis no more an ordinary slip and fall case than those cases are\\n\\nordinary harassment cases. Each rests on a claim that makes the\\n\\nemployer directly liable for what happens in the workplace to the\\n\\nemployee who brings the suit.\\n\\n To be sure, the Supreme Court has stressed that to find\\n\\nthe gravamen of any personal injury suit, one must look to \\\"the\\n\\npoint of contact -- the place where the boy got his fingers\\n\\npinched.\\\" Sachs, 136 S. Ct. at 397 (internal quotations omitted).\\n\\nHowever, nothing in that precedent requires that we assess that\\n\\nconduct independent of the plaintiff's actual claim, which, in\\n\\nthis case, is a claim against the employer -- not a fellow employee\\n\\n-- and requires no proof that any fellow employee engaged in any\\n\\nparticular conduct.\\n\\n We find the D.C. Circuit's analysis in El-Hadad v. United\\n\\nArab Emirates instructive in this regard. 496 F.3d 658 (D.C. Cir.\\n\\n2007). There, the Court held that that the gravamen of the\\n\\nplaintiff's complaint, which alleged breach of contract for\\n\\nwrongful termination, involved \\\"commercial activity,\\\" in part,\\n\\nbecause it occurred in the \\\"employment context.\\\" Id. at 663. In\\n\\nchoosing to focus on the \\\"employment relationship . . . as a\\n\\n\\n - 18 -\\n\\nwhole,\\\" the Court noted that a \\\"narrow[er]\\\" framing of the gravamen\\n\\nof the complaint -- focusing myopically on the plaintiff's\\n\\ndefamation or breach of contract claims divorced from the\\n\\nemployment context -- would \\\"defy analysis\\\" under the \\\"commercial\\n\\nactivity\\\" inquiry. Id. at 663 n.1 (highlighting the difficulty of\\n\\ncharacterizing a \\\"breach of contract,\\\" without more, as\\n\\n\\\"commercial\\\" or \\\"non-commercial\\\").\\n\\n Simply put, Merlini's employment did not simply \\\"le[ad]\\n\\nto\\\" the injury that she received; it provides the legal basis for\\n\\nthe only cause of action that she has against her employer for the\\n\\ninjury for which she seeks to recover. See In re Opinion of the\\n\\nJustices, 34 N.E.2d 527, 544 (Mass. 1941) (establishing that\\n\\nchapter 152 §66 \\\"must be interpreted as creating a cause of action\\n\\nin an employee sustaining an injury 'in the course of his\\n\\nemployment' that is a 'direct result' of such employment though\\n\\nnot a 'direct result of any negligence on the part of the\\n\\nemployer'\\\").\\n\\n We recognize that, as the Department notes, the Supreme\\n\\nCourt did not reject all of Nelson's claims on the ground that his\\n\\nallegations of \\\"commercial activity\\\" (his employment) preceded the\\n\\nactual conduct causing his injuries. Instead, in both Nelson and\\n\\nthe Court's subsequent decision in Sachs, the Supreme Court noted\\n\\nthat, with respect to the plaintiffs' failure to warn claims, the\\n\\nexception triggering activities (Nelson's employment and Sachs's\\n\\n\\n - 19 -\\n\\nticket purchase) were necessary elements of those claims.\\n\\nNonetheless, the Court concluded in both cases that the failure to\\n\\nwarn claims were impermissible because they were\\n\\n\\\"merely . . . semantic ploy[s],\\\" Nelson, 507 U.S. 9 at 363,\\n\\n\\\"artful[ly] pled[],\\\" Sachs, 136 S. Ct. at 396, to avoid the foreign\\n\\nstates' sovereign immunity.\\n\\n Insofar as the Department means to argue that Merlini's\\n\\nclaims are, in some way, a similar \\\"semantic ploy\\\" to avoid\\n\\nCanada's sovereign immunity, no such concerns exist here.\\n\\nMerlini's chapter 152 claim was not part of some shrewd litigation\\n\\nstrategy aimed at navigating around Canada's sovereign immunity.\\n\\nIt was, instead, the only claim that Merlini could bring against\\n\\nher employer for the workplace injury that she suffered under the\\n\\nstatutory framework established by the Massachusetts legislature\\n\\nfor permitting employees to seek redress for such injuries from\\n\\ntheir employers. That framework has, as one of its express aims,\\n\\nthe goal of incentivizing employers to comply with the law's\\n\\nworker's compensation requirement so that employees are ensured\\n\\nadequate coverage in situations where they are injured during the\\n\\ncourse of their employment. See In re Opinion of the Justices, 34\\n\\nN.E.2d at 543-44 (describing the \\\"manifest[] . . . purpose\\\" of\\n\\nchapter 152 as \\\"leav[ing] non-subscribing employers in such a\\n\\ndisadvantageous position that hardly any employer could afford not\\n\\nto accept the insurance provisions of the act\\\").\\n\\n\\n - 20 -\\n\\n Thus, even if we were to accept that the gravamen of\\n\\nMerlini's complaint does not encompass Canada's choice to forgo\\n\\nobtaining the requisite insurance, we still would find that the\\n\\n\\\"commercial activity\\\" exception applies. And that is because the\\n\\nconduct on which her claim is based cannot be divorced from her\\n\\n\\\"employment relationship\\\" with Canada.\\n\\n In so deciding, though, we emphasize that we reach this\\n\\nconclusion because Merlini is a United States citizen -- and not\\n\\na citizen of Canada -- whom Canada employed to work for it as\\n\\nclerical staff in the United States. Accordingly, Merlini is just\\n\\nthe type of employee whose employment by a foreign state Congress\\n\\nidentified as an example of \\\"commercial activity\\\" by a foreign\\n\\nstate. See H. Rep. No. 94-1487, at 16 (1976), reprinted in 1976\\n\\nU.S.C.C.A.N. 6604, 6615. Nor does Canada argue that there is\\n\\nanything about Merlini's duties that supports a different\\n\\nconclusion. We thus do not mean to suggest that the outcome would\\n\\nbe the same if Merlini's position were not purely \\\"clerical.\\\" See\\n\\nKato v. Ishihara, 360 F.3d 106, 110-14 (2nd Cir. 2004)\\n\\n(characterizing \\\"product promotion for Japanese companies\\\" as\\n\\n\\\"governmental\\\" and, therefore, noncommercial); Butters v. Vance\\n\\nIntern., Inc., 225 F.3d 462, 465 (4th Cir. 2004) (characterizing\\n\\n\\\"[p]roviding security for the royal family\\\" of Saudi Arabia as\\n\\n\\\"sovereign\\\" and, therefore, noncommercial).\\n\\n\\n\\n\\n - 21 -\\n\\n C.\\n\\n We turn, then, to Canada's contention, which it also\\n\\nmade to the District Court, that \\\"[t]he circumstances of\\n\\n[Merlini's] employment, and whether Canada could or should have\\n\\nprevented the alleged accident,\\\" are \\\"incidental and immaterial\\n\\nunder [Merlini's] theory of the claim.\\\" Canada points to the fact\\n\\nthat Merlini is relying in bringing her claim on chapter 152 § 66,\\n\\nwhich provides that \\\"[a]n employer is liable in tort to an employee\\n\\nwithout proof of negligence if the employer is required to maintain\\n\\nworkers' compensation insurance and fails to do so (or fails to\\n\\nbecome a licensed self-insurer) . . . .\\\" Thorson v. Mandell, 525\\n\\nN.E.2d 375, 377 (Mass. 1988).\\n\\n Canada argues that Merlini's reliance on § 66 is of\\n\\ncritical importance in determining the gravamen of her complaint.\\n\\nCanada contends that, due to her reliance on that provision of\\n\\nchapter 152, Merlini is necessarily bringing a claim that is \\\"based\\n\\non\\\" \\\"how Canada provides workers' compensation benefits,\\\" given\\n\\nthat her claim necessarily depends on the fact that Canada chose\\n\\nto compensate her through a means that does not qualify an employer\\n\\nas \\\"insured\\\" under chapter 152.4 (Emphasis added).\\n\\n\\n\\n\\n 4\\n Notably, Canada does not dispute the fact that this activity\\nwas conducted by the Canadian government, nor does it dispute that\\nit was performed in the United States.\\n\\n\\n - 22 -\\n\\n The District Court appeared, at least at points, to agree\\n\\nwith Canada that the conduct that we must assess to determine\\n\\nwhether it is \\\"commercial\\\" in nature is Canada's \\\"decision to\\n\\nprovide benefits directly under its own [national workers'\\n\\ncompensation insurance] system.\\\" In particular, the District\\n\\nCourt, after describing \\\"[t]he determinative question\\\" at the\\n\\nfirst step of the inquiry as being \\\"whether [Canada's] decision\\n\\nnot to purchase workers' compensation insurance is commercial in\\n\\nnature,\\\" ultimately concluded that Canada's \\\"decision to provide\\n\\nits own benefits does not fall under the commercial activit[y]\\n\\nexception because the decision to create and organize a workers'\\n\\ncompensation program is sovereign in nature.\\\" Merlini, 280 F.\\n\\nSupp. 3d at 257 (emphasis added).\\n\\n The State Department, in its amicus brief, also endorsed\\n\\nthis position as an alternative to its argument that the gravamen\\n\\nof Merlini's claim is more appropriately characterized as a\\n\\n\\\"noncommercial tort.\\\" The Department contends that \\\"Canada opted\\n\\nout of the Massachusetts workers' compensation system in a manner\\n\\navailable exclusively to sovereigns -- by enacting a statute\\n\\ncreating an alternate and uniform compensation regime for all\\n\\nCanadian employees, wherever in the world they might be.\\\"\\n\\n But, while Canada and the District Court are right that\\n\\nMerlini's claim does rely on § 66, nothing in § 66, or, for that\\n\\nmatter, the whole of chapter 152, makes how an \\\"uninsured\\\" employer\\n\\n\\n - 23 -\\n\\nchooses to compensate an injured employee of any relevance to a\\n\\nchapter 152 claim for damages against that employer. Chapter 152\\n\\nrequires, in relevant part, only that an employee must show \\\"that\\n\\n[the employer] had to carry worker's [sic] compensation insurance\\\"\\n\\nfor an employee and \\\"that [the employer] did not carry it.\\\" Beath\\n\\nv. Nee, 74 Mass. App. Ct. 1119, 1119 (2009) (unpublished). The\\n\\nstatute does not require any showing regarding what alternative\\n\\nmeans, if any, the employer may have used to compensate the\\n\\nemployee once the employee has shown that the employer was not\\n\\ninsured within the meaning of chapter 152. Thus, while we must\\n\\n\\\"zero[] in on the core\\\" of her claim, Sachs, 136 S. Ct. at 396,\\n\\nand while we may not unduly seize upon merely one element of her\\n\\nclaim, see id. at 394-96, Merlini's claim is in no sense \\\"based\\n\\non\\\" Canada's decision to compensate her through its own national\\n\\nworkers' compensation system. See Sachs, 136 S. Ct. at 395\\n\\n(explaining that \\\"a court should identify . . . those elements\\n\\n. . . that, if proven, would entitle a plaintiff to relief, . . .\\n\\nand the gravamen of the complaint\\\" (internal citations omitted)).\\n\\n That is not to say, though, that we reject Canada's\\n\\ncontention that its decision to forgo insurance forms part of what\\n\\nmay be understood to be the gravamen of Merlini's claim. We may\\n\\nassume that it does. Cf. Nelson, 507 U.S. at 358 n.4. But, even\\n\\nif we do, we cannot ignore that Canada failed to obtain what\\n\\nMassachusetts courts describe as \\\"workers' compensation\\n\\n\\n - 24 -\\n\\ninsurance,\\\" see LaClair v. Silberline Mfg. Co., Inc., 393 N.E.2d\\n\\n867, 869 (Mass. 1979), and that Merlini's claim is based on the\\n\\nfact that she is an employee who was injured during the course of\\n\\nher employment while her employer failed to possess that type of\\n\\ninsurance. See El-Hadad, 496 F.3d at 663 (declining to divorce\\n\\nthe conduct on which a breach of contract claim was based -- the\\n\\nbreach -- from the \\\"employment context\\\" in which it occurred).\\n\\nThus, even accepting that the gravamen of Merlini's claim relates\\n\\nto Canada's failure to obtain the requisite insurance, our inquiry\\n\\ninto whether it is based on \\\"commercial activity\\\" would require us\\n\\nto examine whether that failure -- given the employment context in\\n\\nwhich it occurred -- constitutes \\\"commercial activity.\\\"\\n\\n In so doing, we must keep in mind that the\\n\\ncharacterization of conduct as \\\"commercial activity\\\" turns on its\\n\\n\\\"nature\\\" rather than its \\\"purpose.\\\" 28 U.S.C. § 1603(d). Thus,\\n\\na sovereign's conduct constitutes \\\"commercial activity\\\" if \\\"the\\n\\nparticular actions that the foreign state perform[ed] (whatever\\n\\nthe motive behind them) [were] the type of actions by which a\\n\\nprivate party engages in 'trade and traffic or commerce,'\\\" Fagot\\n\\nRodriguez, 297 F.3d at 6 (alterations in original) (quoting\\n\\nWeltover, 504 U.S. at 614). Applying that test, we conclude that\\n\\nCanada's employment of Merlini without obtaining the requisite\\n\\ninsurance is properly deemed to be \\\"commercial activity,\\\" at least\\n\\ngiven that Merlini is a United States citizen whom Canada employed\\n\\n\\n - 25 -\\n\\nin Boston as clerical staff and that she seeks recovery for the\\n\\ninjury she suffered while performing her clerical duties.5\\n\\n 1.\\n\\n We start by considering whether, in general, an\\n\\nemployer's failure, in employing its workers, to be insured within\\n\\nthe meaning of chapter 152 is the type of conduct \\\"by which a\\n\\nprivate party engages in 'trade and traffic or commerce.'\\\" Fagot\\n\\nRodriguez, 297 F.3d at 6 (quoting Weltover, 504 U.S. at 614). We\\n\\nhave little doubt that it is.\\n\\n Private employers in Massachusetts must regularly decide\\n\\nwhether, in employing their workers, they should obtain the kind\\n\\nof insurance that chapter 152 contemplates or whether they instead\\n\\nshould take the risk of going bare. See, e.g., Brown v. Leighton,\\n\\n434 N.E.2d 176 (Mass. 1982) (uninsured taxicab driver employer);\\n\\nBarrett v. Transformer Serv., Inc., 374 N.E.2d 1325 (Mass 1978)\\n\\n(uninsured transformer service company employer); Truong v. Wong,\\n\\n775 N.E.2d 405 (Mass. App. Ct. 2002) (uninsured tofu manufacturing\\n\\n\\n\\n\\n 5 Although we recognize that courts are instructed to give\\n\\\"special attention\\\" to the State Department's views on matters of\\nforeign immunity, see Jam v. Int'l Finance Corp., 139 S. Ct. 759,\\n770-71 (2019) (quoting Bolivarian Republic of Venezuela v.\\nHelmerich & Payne Int'l. Drilling Co., 137 S. Ct. 1312, 1320\\n(2017)), we are aware of no authority that would instruct us to\\nadopt the Department's views if we conclude -- as we do\\nhere -- that they would have us run afoul of the statutory\\ninstruction that we not permit the purposes behind foreign state\\nactions to serve as proxies for the nature of those actions. 28\\nU.S.C. § 1603(d); Weltover, 504 U.S. at 614.\\n\\n\\n - 26 -\\n\\nplant employer). That decision by employers about their approach\\n\\nto insuring themselves against their employees' workplace injuries\\n\\nimpacts the overall financial wellbeing of the employers'\\n\\nbusinesses and generally concerns parties (namely, their\\n\\nbusinesses' employees) who have commercial expectations about the\\n\\nrecourse that they will have against their employers in the event\\n\\nthat they suffer a workplace injury. See, e.g., Truong, 775 N.E.2d\\n\\nat 408 (establishing that the corporation president did not\\n\\npurchase workers' compensation insurance because it was \\\"too\\n\\nexpensive\\\"); see also Rush-Presbyterian-St. Luke’s Med. Ctr. v.\\n\\nHellenic Republic, 877 F.2d 574, 580-81 (7th Cir. 1989) (describing\\n\\nthe commercial obligations that arise out of traditionally\\n\\nprivate, third-party transactions).6\\n\\n In recognizing the commercial nature of this choice by\\n\\na business to go bare in employing someone, we do not mean to\\n\\nquestion whether Canada was in so \\\"choosing\\\" -- while nonetheless\\n\\nemploying Merlini, a United States citizen, as a clerical worker\\n\\n\\n\\n\\n 6\\n Of course, it may be that, in some instances, a private\\nbusiness's failure to become insured within the meaning of chapter\\n152 is less the product of a commercial choice than a commercial\\noversight, see, e.g., O'Dea v. J.A.L., Inc., 569 N.E.2d 841 (Mass.\\nApp. Ct. 1991) (employer alleged to be uninsured due to a policy\\nlapse), especially given how disadvantageous such a decision would\\nappear to be for the employer. But, such an oversight still takes\\nplace in the course of the business's employment of its workers\\nand in parallel with its business judgments about how to protect\\nagainst the commercial losses that might be incurred in consequence\\nof those workers suffering a workplace injury.\\n\\n\\n - 27 -\\n\\nin its consulate in Boston -- motivated by what it characterizes\\n\\nas its sovereign obligation to provide its employees protection\\n\\nthrough its own national workers' compensation system. In fact,\\n\\nCanada asserts that it has no legal authority -- given the\\n\\nlimitations that it contends that Canadian law imposes -- to act\\n\\notherwise. But, in light of the Supreme Court's decision in\\n\\nWeltover, it is clear that the \\\"motive behind\\\" Canada's conduct in\\n\\nemploying Merlini without obtaining the requisite insurance is not\\n\\ngermane to the question of whether the activity of doing just that\\n\\nis \\\"commercial\\\" for purposes of the FSIA's \\\"commercial activity\\\"\\n\\nexception. Fagot Rodriguez, 297 F.3d at 6 (quoting Weltover, 504\\n\\nU.S. at 614); see also 28 U.S.C. § 1603(d).\\n\\n In Weltover, the plaintiffs brought a breach of contract\\n\\nclaim against Argentina after it defaulted on its bonds. Weltover,\\n\\n504 U.S. at 610. Argentina argued in response that foreign\\n\\nsovereign immunity protected it from the suit, pointing to the\\n\\nfact that the bonds were not issued for the ordinary commercial\\n\\npurpose of \\\"raising capital or financing acquisitions\\\" but instead\\n\\nas instruments for refinancing sovereign debt. Id. at 616.\\n\\nAccording to Argentina, these refinancing measures were required\\n\\nas part of the government's program for addressing its domestic\\n\\ndebt crisis. Id. Argentina thus argued that its decision not to\\n\\nrepay the bonds was part of a governmental policy undertaken for\\n\\nsovereign rather than commercial reasons and therefore that the\\n\\n\\n - 28 -\\n\\nclaim was based on activity that could not qualify as commercial\\n\\nfor FSIA purposes. Id. at 616-17.\\n\\n The Supreme Court rejected Argentina's contention. Id.\\n\\nat 617. According to the Court, Argentina had defaulted on what\\n\\nit termed \\\"garden-variety debt.\\\" Id. at 615. Argentina's bonds,\\n\\nlike private bonds, were negotiable, were traded on international\\n\\nmarkets, and came with the promise of future repayment. Id. Thus,\\n\\nfor purposes of determining whether Argentina's default on those\\n\\nbonds was \\\"commercial activity,\\\" the Court explained that\\n\\nArgentina's participation in the bond market was of a type that\\n\\nwas commercial in nature and thus that it was \\\"irrelevant why\\n\\nArgentina participated in the bond market.\\\" Id. (emphasis in\\n\\noriginal).\\n\\n Canada, of course, did not issue bonds. But, it did\\n\\nemploy a United States citizen as clerical staff in its Boston\\n\\nconsulate, thereby engaging in conduct that it does not dispute\\n\\nqualifies as being \\\"commercial\\\" in nature. Nor does Canada dispute\\n\\nthat private businesses, when employing such clerical workers, are\\n\\nsubject to the very same obligation to obtain insurance in\\n\\ncompliance with chapter 152 -- insofar as they wish to avoid being\\n\\nsubjected to personal injury suits such as Merlini brings -- or\\n\\nthat their employment of such workers without having such\\n\\ninsurance, as applied to those businesses, constitutes an activity\\n\\nthat is commercial in nature.\\n\\n\\n - 29 -\\n\\n We thus do not see how Canada's maintenance of a\\n\\n\\\"garden-variety\\\" employment relationship with Merlini while not\\n\\nmaintaining such insurance is an activity that is any less\\n\\n\\\"commercial\\\" in nature than was Argentina's default on\\n\\n\\\"garden-variety\\\" debt in Weltover. In each case, the foreign state\\n\\ncan point to a sovereign \\\"purpose\\\" in acting as it did. But in\\n\\nneither case does that reason speak to the \\\"nature\\\" of the foreign\\n\\nsovereign's conduct.7 As a result, Canada provides no more reason\\n\\n\\n 7 The dissent argues that, in attempting to identify the\\n\\\"nature\\\" of Merlini's claim, we ignore the \\\"outward form of\\n[Canada's] conduct,\\\" which the dissent characterizes as \\\"informing\\nMerlini that she was subject to the GECA . . . , compensating her\\npursuant to the GECA's benefits scheme after she made a claim of\\ninjury, and not continuing her benefits when Canada's Workplace\\nSafety and Insurance Board (WSIB) determined after a full process\\nthat Merlini was ready to return to work.\\\" However, none of these\\nactions constitutes the \\\"outward conduct\\\" that forms the basis of\\nMerlini's claim against the Canadian government. The only \\\"outward\\nconduct\\\" on Canada's part that Merlini needs to prove to succeed\\nin her claim is defined by the elements of the claim that § 66\\npermits her to bring. Those elements make clear that she must\\nprove that Canada was her employer in Massachusetts when she\\nsuffered the workplace injury for which she seeks recompense and\\nthat Canada did not comply with the state's workers' compensation\\nrequirements while having her in its employ. In fact, had Canada\\nregistered as a self-insurer in compliance with chapter 152, it\\ncould have performed each of the \\\"outward\\\" actions that the dissent\\noutlines and Merlini would not have had a claim that she could\\nbring under Massachusetts law. This point shows that the \\\"outward\\nconduct\\\" described by the dissent is simply immaterial to the claim\\nthat Merlini brings here, such that her claim can in no sense be\\nunderstood to be \\\"based on\\\" it. She has a cause of action under\\nMassachusetts law against Canada for the workplace injury that she\\nsuffered only because Canada employed her and, as her employer,\\ndid not comply with the state's workers' compensation\\nrequirements. Because that kind of conduct is the kind of conduct\\nthat private employers engage in regularly it is conduct that is\\n\\n\\n\\n - 30 -\\n\\nfor us to conclude that its conduct is \\\"sovereign\\\" rather than\\n\\n\\\"commercial\\\" than Argentina provided for the Court in Weltover.\\n\\n Moreover, we note that, in deciding Weltover, the\\n\\nSupreme Court relied in part on the Seventh Circuit's reasoning in\\n\\nRush-Presbyterian. Weltover, 504 U.S. at 614. There, Greece had\\n\\nentered into contracts with American doctors but then only\\n\\npartially paid them for their services. Rush-Presbyterian, 877\\n\\nF.2d at 575-76. The Greek government pointed out that it had\\n\\nassumed these obligations as part of its comprehensive scheme to\\n\\nprovide healthcare to all of its citizens. Id. at 580. According\\n\\nto Greece, the fact that its healthcare system was not\\n\\nprofit-seeking, was funded by taxpayers, and operated through its\\n\\nown set of administrative proceedings, placed Greece's activity in\\n\\nretaining the doctors' services -- and thus its alleged failure to\\n\\npay them fully for those services -- squarely in the realm of\\n\\nsovereign rather than \\\"commercial activity.\\\" Id. at 580-81.\\n\\n The Seventh Circuit disagreed. The court made clear\\n\\nthat \\\"private parties in the United States enter such agreements\\n\\nroutinely\\\" and that \\\"the 'basic exchange' of money for health care\\n\\nservices is the same\\\" whether the payer is a government or a\\n\\nprivate employer. Id. at 581. The court thus ruled that Greece's\\n\\n\\n\\n\\nproperly characterized as \\\"commercial activity,\\\" at least given\\nMerlini's particular attributes as a United States citizen working\\nin the Boston consulate as clerical staff.\\n\\n\\n - 31 -\\n\\nreasons for characterizing its conduct as noncommercial related\\n\\nonly to the purpose underlying Greece's decision to enter into the\\n\\ncontracts with the doctors and then not to pay them fully, rather\\n\\nthan to the nature of the decision to enter into those contracts\\n\\nor to breach them. Id. at 580. And, for that reason, the Seventh\\n\\nCircuit rejected Greece's contention that the \\\"commercial\\n\\nactivity\\\" exception did not apply.\\n\\n Here, Canada, like Greece, entered into a contract for\\n\\ncommercial services -- in this case, in the form of its employment\\n\\ncontract with Merlini, given that Canada does not dispute the\\n\\n\\\"commercial\\\" nature of Canada's employment of her as clerical staff\\n\\nat the consulate. And, then, after having done so, Canada, like\\n\\nGreece, failed to do what state law required of employers engaged\\n\\nin such typical commercial employment relationships -- namely, in\\n\\nthis case, to be \\\"insured\\\" within the meaning of chapter 152 in\\n\\nemploying Merlini.\\n\\n To be sure, the existence of Canada's own national\\n\\nworkers' compensation system may explain Canada's motive for\\n\\nmaking a type of decision regularly made by private commercial\\n\\nactors. But, the existence of the foreign sovereign's system of\\n\\nsocial insurance in Rush-Presbyterian helped to explain the\\n\\npurpose behind that sovereign's failure to undertake a duty\\n\\ncommonly required of employers engaged in commercial employment\\n\\n\\n\\n\\n - 32 -\\n\\nrelationships. Yet, Rush-Presbyterian makes clear that such a\\n\\nfact does not thereby alter the commercial nature of that failure.\\n\\n 2.\\n\\n Notwithstanding Weltover and Rush-Presbyterian, Canada\\n\\ncontends that this case is actually more closely analogous to both\\n\\nJungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020\\n\\n(D.C. Cir. 1997) and Anglo-Iberia Underwriting Mgmt. v. P.T.\\n\\nJamsostek, 600 F.3d 171 (2d Cir. 2010), in which the \\\"commercial\\n\\nactivity\\\" exception was held not to apply. See Jungquist, 115\\n\\nF.3d at 1024; Anglo-Iberia, 600 F.3d at 176. Neither case,\\n\\nhowever, supports Canada's position.\\n\\n In Jungquist, the D.C. Circuit held that the \\\"commercial\\n\\nactivity\\\" exception was inapplicable to claims brought against\\n\\nofficials of the government of the United Arab Emirates for actions\\n\\nthat those officials took in administering the Abu Dhabi medical\\n\\nprogram in compliance with the Crown Prince Court's orders. 115\\n\\nF.3d at 1020. Specifically, the court determined that the\\n\\nofficials engaged in no \\\"commercial activity\\\" with the plaintiffs,\\n\\nbut instead \\\"fulfilled [the government's] obligations to the\\n\\n[plaintiffs] by performing their official tasks as\\n\\nadministrators.\\\" Id. at 1030.\\n\\n In Anglo-Iberia, the Second Circuit held that the\\n\\n\\\"commercial activity\\\" exception did not apply to claims against\\n\\nthe Indonesian government for a fraud perpetrated by its employees\\n\\n\\n - 33 -\\n\\nin their capacities as administrators of the state-owned social\\n\\nsecurity insurer, Jamsostek. 600 F.3d at 174. The court noted\\n\\nthat providing insurance is an activity that both the government\\n\\nand private markets perform. But, the court explained, Jamsostek\\n\\ndid not operate like a private insurer and therefore its wrongful\\n\\nadministration of that government-run insurance program did not\\n\\nqualify as \\\"commercial activity.\\\" Id. at 176.\\n\\n The reason that neither Jungquist nor Anglo-Iberia aids\\n\\nCanada's cause is simple. In each of those cases, the claims at\\n\\nissue were based on the defendants' administration of the\\n\\ngovernment programs at issue independent of any conduct by the\\n\\nforeign state as the employer of the plaintiffs, such that it was\\n\\nthe manner of the administration of those programs -- and not the\\n\\nmanner of the foreign state's employment of the plaintiffs -- that\\n\\nwas alleged to be wrongful.\\n\\n Merlini's claim is quite distinct. Even on Canada's\\n\\naccount, insofar as Merlini's claim is based on more than Canada's\\n\\nemployment of her at the consulate or the conduct that caused the\\n\\ninjury that she suffered there, her claim is still based on the\\n\\nCanadian government's decision to employ her for clerical work at\\n\\nthe Boston consulate while not having the insurance contemplated\\n\\nby chapter 152. Thus, her claim is not based -- as the claims at\\n\\nissue in Jungquist and Anglo-Iberia were -- on any allegation that\\n\\nforeign state officials acted wrongfully in administering a\\n\\n\\n - 34 -\\n\\ngovernmental program independent of the foreign state's employment\\n\\nof the plaintiff in circumstances in which such employment\\n\\nconcededly constitutes \\\"commercial activity.\\\"\\n\\n In that respect, Merlini's claim is no different from\\n\\nthe claims that other employees have brought against private\\n\\nbusiness employers that, like Canada, have not insured themselves\\n\\nin the manner chapter 152 specifies for the injuries that their\\n\\nworkers may suffer in the workplace. The existence of Canada's\\n\\nown nationally administered program for compensating workers like\\n\\nMerlini, in other words, only provides the justification for the\\n\\nconduct by Canada on which Merlini's claim is based. But that\\n\\njustification speaks to Canada's \\\"purpose\\\" in engaging in that\\n\\nconduct and not to the \\\"nature\\\" of the conduct itself.\\n\\n In fact, if Canada and the dissent's views prevailed, we\\n\\nstruggle to understand what recovery for workplace harm -- whether\\n\\nconcerning wages, benefits, or discriminatory treatment -- an\\n\\nemployee of a foreign government, who, like Merlini, is a United\\n\\nStates citizen employed as a clerical worker, could seek from the\\n\\nemployer under the \\\"commercial activity\\\" exception recognized in\\n\\nthe FSIA. Yet, it is quite clear that Congress, in enacting the\\n\\n\\\"commercial activity\\\" exception to foreign state immunity in the\\n\\nFSIA, contemplated that some employees of foreign governments\\n\\nwould be entitled to recover for workplace harm against their\\n\\nforeign state employer -- namely, those employees that, like\\n\\n\\n - 35 -\\n\\nMerlini, are United States citizens employed in clerical\\n\\npositions. See H. Rep. No. 94-1487, at 16 (1976), reprinted in\\n\\n1976 U.S.C.C.A.N. 6604, 6615 (describing \\\"[a]ctivities such as a\\n\\ngovernment's . . . employment or engagement of laborers, clerical\\n\\nstaff or public relations or marketing agents . . . [as] those\\n\\nincluded within the definition [of commercial activity]\\\"). Nor\\n\\nare we aware of any precedent supporting the notion that employees\\n\\nlike Merlini lose their right to recover against their foreign\\n\\nstate employer whenever that foreign employer establishes rules\\n\\ndifferent from ours for protecting them.8\\n\\n 3.\\n\\n Finally, Canada contends that a ruling that it must\\n\\ncomply with the MWCA's insurance requirements or be stripped of\\n\\nmany common law defenses in any suit claiming damages for a\\n\\n\\n\\n\\n 8 The dissent relatedly argues that the \\\"commercial activity\\\"\\nexception should not apply to Canada in this context because, due\\nto Canada's own workers' compensation law, the government was not\\nallowed to comply with Massachusetts' insurance requirements under\\nchapter 152. We fail to see how Canada's legislative prohibition\\nagainst obtaining the type of insurance that would qualify Canada\\nas being \\\"insured\\\" for purposes of chapter 152 renders the act of\\nnot acquiring compliant insurance any less \\\"commercial\\\" in nature.\\nAs we have already argued, while Canada's sovereign workers'\\ncompensation regime clearly provides the motivation for its\\ndecision not to acquire compliant insurance under chapter 152,\\nthat motivation does not strip Canada's decision not to provide\\nthe requisite insurance of its \\\"commercial\\\" character, any more\\nthan the presidential decree directing Argentina to default on its\\nbonds stripped that act of its \\\"commercial\\\" character in Weltover\\nby way of constituting executive action. See Weltover, 504 U.S.\\nat 610.\\n\\n\\n - 36 -\\n\\nworkplace injury brought by an employee against the employer would\\n\\n\\\"produce an absurd result.\\\" Such a conclusion, Canada contends,\\n\\nwould essentially force Canada to subject itself to having\\n\\nMassachusetts assess its solvency through semi-annual audits and\\n\\nvarious deposit requirements. According to Canada, that kind of\\n\\nintrusion into its finances \\\"would violate basic principles of\\n\\ncomity\\\" that foreign sovereign immunity exists to protect. Thus,\\n\\nfor this reason, too, Canada contends, the \\\"commercial activity\\\"\\n\\nexception cannot be construed to apply here.\\n\\n We may, for present purposes, set aside the fact, which\\n\\nCanada does not contest, that some foreign consulates as well as\\n\\nthe Quebec Government Office in Boston, which is a political\\n\\nsubdivision of Canada for the purposes of FSIA applicability,\\n\\napparently have obtained the insurance required by chapter 152.\\n\\nThe more fundamental point is that Canada's concerns about \\\"comity\\\"\\n\\ndo not provide a basis for concluding that it is immune from suit\\n\\nin this case.\\n\\n As Canada rightly points out, the \\\"FSIA's objective is\\n\\nto give protection from the inconvenience of suit as a gesture of\\n\\ncomity.\\\" Bolivarian Republic of Venezuela v. Helmerich & Payne\\n\\nInt’l Drilling Co., 137 S. Ct. 1312, 1322 (2017) (internal\\n\\nquotations omitted) (noting that the FSIA was drafted with comity\\n\\nconcerns in mind). But, by including the \\\"commercial activity\\\"\\n\\nexception in the FSIA, Congress made clear that those concerns do\\n\\n\\n - 37 -\\n\\nnot provide a reason to extend that protection to foreign states\\n\\nwith respect to a suit that the \\\"commercial activity\\\" exception\\n\\nencompasses. Thus, an appeal to comity cannot in and of itself\\n\\nexplain why a foreign state's conduct that is encompassed by that\\n\\nexception should be treated as if it is not.\\n\\n Perhaps there is a case to be made that such comity\\n\\nconcerns are relevant to a merits determination -- as a matter of\\n\\nMassachusetts or federal law -- that chapter 152's \\\"insurance\\\"\\n\\nrequirement does not apply to a foreign sovereign in the same way\\n\\nthat it applies to private employers. But, FSIA immunity applies\\n\\nonly if, under the analysis that we must apply, see Weltover, 504\\n\\nU.S. at 614; Fagot, 297 F.3d at 5–6, the conduct on which Merlini's\\n\\nclaim is based is not \\\"commercial\\\" in nature. And, for the reasons\\n\\nthat we have explained, the conduct here is commercial in nature,\\n\\neven though it may have been undertaken for sovereign reasons.\\n\\nCanada's appeal to comity, therefore, adds nothing to its argument,\\n\\nwhich we otherwise reject, that the \\\"commercial activity\\\"\\n\\nexception does not apply here. And thus, Canada's comity concerns\\n\\nprovide no basis for concluding that Canada enjoys an immunity\\n\\nfrom this suit pursuant to the FSIA such that no federal court\\n\\neven has jurisdiction to make a merits judgment.\\n\\n In its amicus brief, the State Department advances many\\n\\nsimilar \\\"comity\\\" concerns to those presented by Canada. But,\\n\\nalthough we give \\\"special attention\\\" to the State Department's\\n\\n\\n - 38 -\\n\\nviews on matters of foreign policy, see Jam, 139 S. Ct. at 770-71,\\n\\nwe decline to place much weight on those views here. The\\n\\nDepartment itself does not view recovery by an employee like\\n\\nMerlini under § 66 against a foreign state employer to be\\n\\nnecessarily adverse to United States foreign policy interests,\\n\\ngiven that it argues to us that Canada might lack immunity from\\n\\nMerlini's claim under the FSIA's \\\"noncommercial tort\\\" exception,\\n\\n28 U.S.C. § 1605(a)(5). And, as we have explained, the Department\\n\\nsets forth no basis in the legislative history or text of the\\n\\nFSIA -- or in any precedent construing it -- for finding that\\n\\nCanada is immune from a suit under § 66 that is brought by a\\n\\nclerical worker like Merlini.\\n\\n IV.\\n\\n Having determined that the FSIA does not prohibit\\n\\nMerlini's suit, Canada argues that we should nevertheless affirm\\n\\nthe District Court's dismissal on a ground not reached by the\\n\\nDistrict Court. Specifically, Canada argues that Merlini has\\n\\nfailed to state a claim upon which relief can be granted, see Fed.\\n\\nR. Civ. P. 12(b)(6), because the DIA Board's ruling operates to\\n\\npreclude Merlini's suit.\\n\\n The parties agree that we apply Massachusetts issue\\n\\npreclusion law. In re Baylis, 217 F.3d 66, 70-71 (1st Cir. 2000).\\n\\nCanada contends that the DIA Board's conclusion that \\\"Canada is\\n\\nnot uninsured in violation of [the MWCA]\\\" should be entitled to\\n\\n\\n - 39 -\\n\\npreclusive effect and thus bars Merlini's \\\"relitigation\\\" of that\\n\\nissue in federal court.\\n\\n In order for an issue to have preclusive effect in a\\n\\nlater proceeding under Massachusetts law, the following elements\\n\\nmust be present: (1) there was a final judgment on the merits in\\n\\nthe prior adjudication; (2) the party against whom preclusion is\\n\\nasserted was a party to the prior adjudication; and (3) the issue\\n\\nin the prior adjudication was identical to the issue in the current\\n\\nadjudication and essential to the earlier judgment. See Kobrin v.\\n\\nBd. of Registration in Med., 832 N.E.2d 628, 634 (Mass. 2005); see\\n\\nalso In re Baylis, 217 F.3d at 71. An order from a state agency\\n\\nis considered to be a final judgment for issue preclusion purposes,\\n\\nhowever, only if it is unappealed. See, e.g., Almeida v. Travelers\\n\\nIns. Co., 418 N.E.2d 602, 605 (Mass. 1981) (noting that the\\n\\ndetermination of an agency is not binding for preclusion purposes\\n\\nafter it has been appealed). And here, Merlini appealed the DIA\\n\\nBoard's ruling to the MAC. Thus, it is to the MAC's ruling that\\n\\nwe must look.\\n\\n The MAC's ruling, however, is of no help to Canada's\\n\\ncontention that Merlini's claim must be dismissed on issue\\n\\npreclusion grounds. In affirming the DIA Board's order, the MAC\\n\\ndid so only on one ground -- namely, that Merlini was not entitled\\n\\nto recover from the WCTF because she was eligible for benefits in\\n\\nanother jurisdiction. The MAC expressly stated that it was not\\n\\n\\n - 40 -\\n\\nruling on whether Canada was subject to the jurisdiction of\\n\\nMassachusetts or whether the consulate was an \\\"uninsured\\\" employer\\n\\nin violation of chapter 152. For that reason, the MAC's \\\"judgment\\n\\nis conclusive [only] as to the first determination.\\\" In re Baylis,\\n\\n217 F.3d at 71. And, given that Canada makes no argument, just as\\n\\nit made none to the District Court, that the judgment as to the\\n\\nissue that the MAC did decide is preclusive of Merlini's claim,\\n\\nCanada's argument for dismissal pursuant to Federal Rule of Civil\\n\\nProcedure 12(b)(6) on the grounds of issue preclusion fails. See\\n\\nP.R. Tel. Co., Inc. v. San Juan Cable LLC, 874 F.3d 767, 770 (1st\\n\\nCir. 2017), cert. denied, 138 S. Ct. 1597 (2018) (holding that any\\n\\nargument not raised in the party's brief is deemed waived).\\n\\n V.\\n\\n For the foregoing reasons we reverse the District\\n\\nCourt's grant of Canada's motion to dismiss and remand the case\\n\\nfor further proceedings. The parties shall bear their own costs.\\n\\n\\n\\n -Dissenting Opinion Follows-\\n\\n\\n\\n\\n - 41 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2367,"cells":{"id":{"kind":"number","value":4628394,"string":"4,628,394"},"name":{"kind":"string","value":"UNITED STATES of America, Appellee, v. Francisco REYES-GOMEZ, Defendant, Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Reyes-Gomez"},"decision_date":{"kind":"string","value":"2019-06-11"},"docket_number":{"kind":"string","value":"17-1757P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Stahl, Lipez\", \"parties\": \"\", \"opinions\": [{\"author\": \"LIPEZ, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-1757\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n FRANCISCO REYES-GOMEZ,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Juan M. Pérez-Giménez, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Stahl, and Lipez,\\n Circuit Judges.\\n\\n\\n Mariángela Tirado-Vales on brief for appellant.\\n Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana\\nE. Bauzá-Almonte, Assistant United States Attorney, Chief,\\nAppellate Division, and B. Kathryn Debrason, Assistant United\\nStates Attorney, on brief for appellee.\\n\\n\\n June 11, 2019\\n\\f LIPEZ, Circuit Judge. Defendant Francisco Reyes-Gomez\\n\\nclaims on appeal that the sentence imposed by the district court\\n\\nwas substantively unreasonable. Although the sentencing judge\\n\\nfound that Reyes-Gomez qualified for the safety valve exception to\\n\\nthe 120-month mandatory minimum sentence, he nonetheless imposed\\n\\na 135-month term of imprisonment. We affirm.\\n\\n I.\\n\\n Reyes-Gomez pled guilty to conspiracy to import a\\n\\ncontrolled substance (Count One), 21 U.S.C. §§ 952(a), 960(a)(1)\\n\\n& (b)(1)(B), 963, and unlawful entry into the United States (Count\\n\\nFive), 8 U.S.C. § 1325(a)(1). He faced a 120-month mandatory\\n\\nminimum term of imprisonment for Count One.\\n\\n Reyes-Gomez and the government entered into a plea\\n\\nagreement, which included the following \\\"Sentence Recommendation\\\"\\n\\nprovision:\\n\\n After due consideration of the relevant\\n factors enumerated in Title 18, United States\\n Code, Section 3553(a), the parties reserve the\\n right to recommend a sentence [of] 120 months\\n for COUNT ONE. For COUNT FIVE, the parties\\n will recommend a sentence of six months to run\\n concurrent with the sentence imposed in COUNT\\n ONE.\\n NOTE: The defendant recognizes that COUNT ONE\\n carries a statutory minimum sentence of one\\n hundred twenty (120) months.\\n\\nThe plea agreement also contained a waiver-of-appeal provision:\\n\\n The defendant knowingly and voluntarily waives\\n the right to appeal the judgment and sentence\\n in this case, provided that the defendant is\\n\\n\\n - 2 -\\n\\f sentenced in accordance with the terms and\\n conditions set forth in the Sentence\\n Recommendation provisions of this Plea\\n Agreement.\\n\\nThe parties subsequently agreed to a plea agreement supplement,\\n\\nwhich stated, in relevant part:\\n\\n The provisions in this Plea Agreement\\n Supplement override any conflicting\\n provisions in the Plea Agreement.\\n\\n . . . [I]f the defendant complies with the\\n requirements of [U.S.S.G.] 5C1.2 and 18\\n [U.S.C. §] 3553(f), and is deemed otherwise\\n eligible, the statutory minimum would not\\n apply and the offense level would be subject\\n to an additional two level reduction for an\\n adjusted offense level of 31. In that case,\\n the parties would be free to recommend a\\n sentence within the applicable guideline range\\n for a total offense level [of] 31 when\\n combined with the defendant's criminal history\\n category as determined by the Court.\\n\\n The law referenced in the plea agreement supplement is\\n\\nthe so-called \\\"safety valve\\\" provision of the sentencing statute.\\n\\nThe safety valve allows a defendant to avoid a mandatory minimum\\n\\nsentence and reduces the defendant's total offense level when the\\n\\ndefendant satisfies certain mitigating factors.1 See 18 U.S.C.\\n\\n§ 3553(f); U.S.S.G. § 5C1.2.\\n\\n\\n 1 Under the then-effective version of the statute, the\\n§ 3553(f) factors were:\\n (1) the defendant does not have more than 1\\n criminal history point, as determined under\\n the sentencing guidelines;\\n (2) the defendant did not use violence or\\n credible threats of violence or possess a\\n\\n\\n - 3 -\\n\\f At the sentencing hearing, the district court found that\\n\\nReyes-Gomez qualified for the § 3553(f) safety valve provision.\\n\\nThe court accordingly determined that the 120-month mandatory\\n\\nminimum did not apply and reduced the defendant's total offense\\n\\nlevel to 31. Adopting the presentence report's recommended\\n\\ncriminal history category of I, the district court determined that\\n\\nthe guidelines sentence range was 108 to 135 months. The defendant\\n\\nasked for a sentence of 108 months, and the government asked for\\n\\n120 months, as it said that it would do in the \\\"Sentence\\n\\nRecommendation\\\" provision of the plea agreement.\\n\\n\\n firearm or other dangerous weapon (or induce\\n another participant to do so) in connection\\n with the offense;\\n (3) the offense did not result in death or\\n serious bodily injury to any person;\\n (4) the defendant was not an organizer,\\n leader, manager, or supervisor of others in\\n the offense, as determined under the\\n sentencing guidelines and was not engaged in\\n a continuing criminal enterprise, as defined\\n in section 408 of the Controlled Substances\\n Act; and\\n (5) not later than the time of the sentencing\\n hearing, the defendant has truthfully provided\\n to the Government all information and evidence\\n the defendant has concerning the offense or\\n offenses that were part of the same course of\\n conduct or of a common scheme or plan, but the\\n fact that the defendant has no relevant or\\n useful other information to provide or that\\n the Government is already aware of the\\n information shall not preclude a determination\\n by the court that the defendant has complied\\n with this requirement.\\n\\n\\n - 4 -\\n\\f The court imposed a sentence of 135 months for Count One\\n\\nand six months to run concurrently for Count Five. The court\\n\\nreasoned that the offense involved significant planning and a large\\n\\nquantity of drugs, which demonstrated the drug trafficking\\n\\nleaders' trust in the defendant. The court also noted that\\n\\ndocuments relating to Reyes-Gomez's prior drug possession arrest\\n\\nin the Dominican Republic indicated that he \\\"was engaged in other\\n\\ndrug smuggling ventures\\\" and was \\\"not a newcomer to this type of\\n\\nactivity.\\\" This appeal followed.2\\n\\n II.\\n\\n Reyes-Gomez claims that his 135-month sentence was\\n\\nsubstantively unreasonable. He argues that a sentence above the\\n\\n120-month mandatory minimum undermines the purpose of the safety\\n\\nvalve and that the court's reasoning for imposing his sentence was\\n\\nflawed.\\n\\nA. Standard of Review\\n\\n We have not yet resolved the question of what standard\\n\\nof review applies to an unpreserved claim of substantive\\n\\nunreasonableness in sentencing. United States v. Márquez-García,\\n\\n862 F.3d 143, 147 (1st Cir. 2017); see also United States v. Ruiz-\\n\\n\\n\\n 2We bypass the waiver-of-appeal argument raised by the\\ngovernment because this case is easily resolved against the\\ndefendant on the merits. See United States v. Mangual-Rosado, 907\\nF.3d 107, 110 (1st Cir. 2018); United States v. Díaz-Rodríguez,\\n853 F.3d 540, 543-44 (1st Cir. 2017).\\n\\n\\n - 5 -\\n\\fHuertas, 792 F.3d 223, 228 (1st Cir. 2015) (noting that six out of\\n\\nthe seven circuits that had examined the issue held that a\\n\\nsubstantive reasonableness claim need not be preserved).3 So, as\\n\\nwe have done before, we \\\"skirt this murky area, [and] assume,\\n\\nfavorably to the appellant that the abuse-of-discretion standard\\n\\napplies.\\\" Márquez-García, 862 F.3d at 147. Substantive\\n\\nreasonableness thus hinges on whether the sentencing rationale is\\n\\n\\\"plausibly reasoned and resulted in a defensible outcome.\\\" United\\n\\nStates v. Alejandro-Rosado, 878 F.3d 435, 440 (1st Cir. 2017).\\n\\n We also note that \\\"[a] challenge directed at substantive\\n\\nreasonableness is usually a heavy lift, and reversal is\\n\\n'particularly unlikely when . . . the sentence imposed fits within\\n\\nthe compass of a properly calculated [guideline sentencing\\n\\nrange].'\\\" Ruiz-Huertas, 792 F.3d at 228–29 (quoting United States\\n\\nv. Vega–Salgado, 769 F.3d 100, 105 (1st Cir. 2014)). Because\\n\\nReyes-Gomez's 135-month sentence was within the uncontested\\n\\nguidelines range, his appeal must overcome this formidable hurdle.\\n\\nB. Mitigating Purpose of the Safety Valve\\n\\n Reyes-Gomez contends that once the district court\\n\\nconcluded that he qualified for the safety valve, and he thereby\\n\\n\\n\\n 3The Supreme Court recently granted certiorari on the\\nquestion of \\\"[w]hether a formal objection after pronouncement of\\nsentence is necessary to invoke appellate reasonableness review of\\nthe length of a defendant's sentence.\\\" Holguin-Hernandez v. United\\nStates, No. 18-7739 (June 3, 2019).\\n\\n\\n - 6 -\\n\\favoided application of the 120-month mandatory minimum sentence,\\n\\nit was unreasonable for the district court to impose a guidelines\\n\\nsentence above the mandatory minimum. Such a sentence, he argues,\\n\\nis incompatible with the purpose of the safety valve \\\"to 'mitigate\\n\\nthe harsh effect of mandatory minimum sentences' on first-time,\\n\\nlow-level offenders in drug trafficking schemes.\\\" United States\\n\\nv. Padilla-Colón, 578 F.3d 23, 30 (1st Cir. 2009) (quoting United\\n\\nStates v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000)).\\n\\n As we observed in Padilla-Colón, however, Congress\\n\\nassumed that the beneficiaries of the safety valve would have\\n\\nguideline sentence ranges below the mandatory minimums. Id. at 30\\n\\nn.3 (citing H.R. Rep. No. 103-460 (1994)). According to a House\\n\\nReport, members of Congress were motivated to create the safety\\n\\nvalve by the phenomenon that\\n\\n sentence reductions for mitigating factors\\n were available to the most culpable, [but]\\n they did not operate to the benefit of the\\n least culpable, whose guideline sentences\\n already fell below the applicable mandatory\\n minimums. In response, the House sought to\\n exempt a 'narrow class' of drug defendants --\\n those least culpable -- from the mandatory-\\n minimum sentencing scheme.\\n\\nId.\\n\\n If the drug offense at issue involves a large quantity\\n\\nof drugs, as it does here, that assumption about the \\\"least\\n\\nculpable\\\" defendants does not apply. See United States v. De la\\n\\nCruz-Gutiérrez, 881 F.3d 221, 227 (1st Cir. 2018) (finding a 120-\\n\\n\\n - 7 -\\n\\fmonth sentence substantively reasonable where the defendant\\n\\nqualified for the safety valve but had a guidelines range of 108\\n\\nto 135 months due to the amount of drugs involved). Reyes-Gomez\\n\\naccepted responsibility for 150 to 450 kilograms of cocaine.\\n\\nBefore the safety valve applied, he faced a total offense level of\\n\\n33, with a criminal history category of I, and a guidelines range\\n\\nof 135 to 168 months. Although the application of the safety valve\\n\\neliminated the 120-month mandatory minimum sentence and reduced\\n\\nthe applicable guidelines range to 108 to 135 months, the safety\\n\\nvalve statute instructs courts to impose a sentence \\\"pursuant to\\n\\nguidelines\\\" and \\\"without regard to any statutory minimum\\n\\nsentence.\\\" 18 U.S.C. § 3553(f). The defendant's argument that\\n\\nthe application of the safety valve converted the mandatory minimum\\n\\ninto a sentencing cap disregards that statutory instruction. Under\\n\\nthe circumstances here, a within-guidelines sentence for a safety\\n\\nvalve-qualifying defendant, even when the sentence exceeds the\\n\\nmandatory minimum, is a \\\"defensible outcome.\\\"\\n\\nC. Alleged Reasoning Errors\\n\\n Reyes-Gomez also contests the district court's stated\\n\\nreasoning for the sentence of 135 months. He argues that the\\n\\ncourt's inference that he had gained the trust of the leaders of\\n\\nthe organization was unreasonable, given that the court also found\\n\\nthat he was not a leader for the purposes of the safety valve. We\\n\\ndisagree. The large quantity of drugs for which Reyes-Gomez\\n\\n\\n - 8 -\\n\\faccepted responsibility permitted the district court to draw the\\n\\ninference that he, though not a leader of the organization, was\\n\\ntrusted within the organization. See De la Cruz-Gutiérrez, 881\\n\\nF.3d at 227 (holding that the sentencing court reasonably inferred\\n\\nthat the defendant, who participated in a smuggling venture of\\n\\nmore than 150 kilograms of cocaine on a hazardous voyage at sea,\\n\\nwas a trusted person in the organization).\\n\\n Reyes-Gomez also argues that the court unreasonably\\n\\nconcluded that he had previously engaged in other drug smuggling\\n\\nventures because the record did not indicate the drug quantity in\\n\\nhis prior arrest in the Dominican Republic for drug possession.\\n\\nThis argument misrepresents the uncontested information before the\\n\\nsentencing judge.\\n\\n The operative second-amended presentence report (\\\"PSR\\\")\\n\\nstated that Reyes-Gomez and two other individuals were arrested in\\n\\nthe Dominican Republic in 2010, following a pursuit at sea.\\n\\nRelying on certified documents provided by the U.S. Drug\\n\\nEnforcement Administration, the PSR stated that officials seized\\n\\n14.38 pounds of marijuana that had been tossed from the arrestees'\\n\\nboat. Reyes-Gomez's counsel indicated at sentencing that he had\\n\\nreceived these documents, and he did not challenge them.\\n\\n The district court is free to rely on conduct set forth\\n\\nin undisputed portions of the PSR at sentencing. It permissibly\\n\\ninferred from the large quantity of marijuana involved in this\\n\\n\\n - 9 -\\n\\fprior possession charge, as indicated by the certified documents,\\n\\nthat it was not for personal use. See United States v. Mercer,\\n\\n834 F.3d 39, 50 (1st Cir. 2016); cf. United States v. Marrero-\\n\\nPérez, 914 F.3d 20, 22 (1st Cir. 2019) (holding that courts may\\n\\nnot rely on an arrest without a conviction or other \\\"independent\\n\\nproof of conduct\\\").\\n\\n Affirmed.\\n\\n\\n\\n\\n - 10 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405647/\", \"author_raw\": \"LIPEZ, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"STAHL"},"judge3":{"kind":"string","value":"LIPEZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4628394/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Francisco REYES-GOMEZ, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1757\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n FRANCISCO REYES-GOMEZ,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Juan M. Pérez-Giménez, U.S. District Judge]\n\n\n Before\n\n Lynch, Stahl, and Lipez,\n Circuit Judges.\n\n\n Mariángela Tirado-Vales on brief for appellant.\n Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana\nE. Bauzá-Almonte, Assistant United States Attorney, Chief,\nAppellate Division, and B. Kathryn Debrason, Assistant United\nStates Attorney, on brief for appellee.\n\n\n June 11, 2019\n\f LIPEZ, Circuit Judge. Defendant Francisco Reyes-Gomez\n\nclaims on appeal that the sentence imposed by the district court\n\nwas substantively unreasonable. Although the sentencing judge\n\nfound that Reyes-Gomez qualified for the safety valve exception to\n\nthe 120-month mandatory minimum sentence, he nonetheless imposed\n\na 135-month term of imprisonment. We affirm.\n\n I.\n\n Reyes-Gomez pled guilty to conspiracy to import a\n\ncontrolled substance (Count One), 21 U.S.C. §§ 952(a), 960(a)(1)\n\n& (b)(1)(B), 963, and unlawful entry into the United States (Count\n\nFive), 8 U.S.C. § 1325(a)(1). He faced a 120-month mandatory\n\nminimum term of imprisonment for Count One.\n\n Reyes-Gomez and the government entered into a plea\n\nagreement, which included the following \"Sentence Recommendation\"\n\nprovision:\n\n After due consideration of the relevant\n factors enumerated in Title 18, United States\n Code, Section 3553(a), the parties reserve the\n right to recommend a sentence [of] 120 months\n for COUNT ONE. For COUNT FIVE, the parties\n will recommend a sentence of six months to run\n concurrent with the sentence imposed in COUNT\n ONE.\n NOTE: The defendant recognizes that COUNT ONE\n carries a statutory minimum sentence of one\n hundred twenty (120) months.\n\nThe plea agreement also contained a waiver-of-appeal provision:\n\n The defendant knowingly and voluntarily waives\n the right to appeal the judgment and sentence\n in this case, provided that the defendant is\n\n\n - 2 -\n\f sentenced in accordance with the terms and\n conditions set forth in the Sentence\n Recommendation provisions of this Plea\n Agreement.\n\nThe parties subsequently agreed to a plea agreement supplement,\n\nwhich stated, in relevant part:\n\n The provisions in this Plea Agreement\n Supplement override any conflicting\n provisions in the Plea Agreement.\n\n . . . [I]f the defendant complies with the\n requirements of [U.S.S.G.] 5C1.2 and 18\n [U.S.C. §] 3553(f), and is deemed otherwise\n eligible, the statutory minimum would not\n apply and the offense level would be subject\n to an additional two level reduction for an\n adjusted offense level of 31. In that case,\n the parties would be free to recommend a\n sentence within the applicable guideline range\n for a total offense level [of] 31 when\n combined with the defendant's criminal history\n category as determined by the Court.\n\n The law referenced in the plea agreement supplement is\n\nthe so-called \"safety valve\" provision of the sentencing statute.\n\nThe safety valve allows a defendant to avoid a mandatory minimum\n\nsentence and reduces the defendant's total offense level when the\n\ndefendant satisfies certain mitigating factors.1 See 18 U.S.C.\n\n§ 3553(f); U.S.S.G. § 5C1.2.\n\n\n 1 Under the then-effective version of the statute, the\n§ 3553(f) factors were:\n (1) the defendant does not have more than 1\n criminal history point, as determined under\n the sentencing guidelines;\n (2) the defendant did not use violence or\n credible threats of violence or possess a\n\n\n - 3 -\n\f At the sentencing hearing, the district court found that\n\nReyes-Gomez qualified for the § 3553(f) safety valve provision.\n\nThe court accordingly determined that the 120-month mandatory\n\nminimum did not apply and reduced the defendant's total offense\n\nlevel to 31. Adopting the presentence report's recommended\n\ncriminal history category of I, the district court determined that\n\nthe guidelines sentence range was 108 to 135 months. The defendant\n\nasked for a sentence of 108 months, and the government asked for\n\n120 months, as it said that it would do in the \"Sentence\n\nRecommendation\" provision of the plea agreement.\n\n\n firearm or other dangerous weapon (or induce\n another participant to do so) in connection\n with the offense;\n (3) the offense did not result in death or\n serious bodily injury to any person;\n (4) the defendant was not an organizer,\n leader, manager, or supervisor of others in\n the offense, as determined under the\n sentencing guidelines and was not engaged in\n a continuing criminal enterprise, as defined\n in section 408 of the Controlled Substances\n Act; and\n (5) not later than the time of the sentencing\n hearing, the defendant has truthfully provided\n to the Government all information and evidence\n the defendant has concerning the offense or\n offenses that were part of the same course of\n conduct or of a common scheme or plan, but the\n fact that the defendant has no relevant or\n useful other information to provide or that\n the Government is already aware of the\n information shall not preclude a determination\n by the court that the defendant has complied\n with this requirement.\n\n\n - 4 -\n\f The court imposed a sentence of 135 months for Count One\n\nand six months to run concurrently for Count Five. The court\n\nreasoned that the offense involved significant planning and a large\n\nquantity of drugs, which demonstrated the drug trafficking\n\nleaders' trust in the defendant. The court also noted that\n\ndocuments relating to Reyes-Gomez's prior drug possession arrest\n\nin the Dominican Republic indicated that he \"was engaged in other\n\ndrug smuggling ventures\" and was \"not a newcomer to this type of\n\nactivity.\" This appeal followed.2\n\n II.\n\n Reyes-Gomez claims that his 135-month sentence was\n\nsubstantively unreasonable. He argues that a sentence above the\n\n120-month mandatory minimum undermines the purpose of the safety\n\nvalve and that the court's reasoning for imposing his sentence was\n\nflawed.\n\nA. Standard of Review\n\n We have not yet resolved the question of what standard\n\nof review applies to an unpreserved claim of substantive\n\nunreasonableness in sentencing. United States v. Márquez-García,\n\n862 F.3d 143, 147 (1st Cir. 2017); see also United States v. Ruiz-\n\n\n\n 2We bypass the waiver-of-appeal argument raised by the\ngovernment because this case is easily resolved against the\ndefendant on the merits. See United States v. Mangual-Rosado, 907\nF.3d 107, 110 (1st Cir. 2018); United States v. Díaz-Rodríguez,\n853 F.3d 540, 543-44 (1st Cir. 2017).\n\n\n - 5 -\n\fHuertas, 792 F.3d 223, 228 (1st Cir. 2015) (noting that six out of\n\nthe seven circuits that had examined the issue held that a\n\nsubstantive reasonableness claim need not be preserved).3 So, as\n\nwe have done before, we \"skirt this murky area, [and] assume,\n\nfavorably to the appellant that the abuse-of-discretion standard\n\napplies.\" Márquez-García, 862 F.3d at 147. Substantive\n\nreasonableness thus hinges on whether the sentencing rationale is\n\n\"plausibly reasoned and resulted in a defensible outcome.\" United\n\nStates v. Alejandro-Rosado, 878 F.3d 435, 440 (1st Cir. 2017).\n\n We also note that \"[a] challenge directed at substantive\n\nreasonableness is usually a heavy lift, and reversal is\n\n'particularly unlikely when . . . the sentence imposed fits within\n\nthe compass of a properly calculated [guideline sentencing\n\nrange].'\" Ruiz-Huertas, 792 F.3d at 228–29 (quoting United States\n\nv. Vega–Salgado, 769 F.3d 100, 105 (1st Cir. 2014)). Because\n\nReyes-Gomez's 135-month sentence was within the uncontested\n\nguidelines range, his appeal must overcome this formidable hurdle.\n\nB. Mitigating Purpose of the Safety Valve\n\n Reyes-Gomez contends that once the district court\n\nconcluded that he qualified for the safety valve, and he thereby\n\n\n\n 3The Supreme Court recently granted certiorari on the\nquestion of \"[w]hether a formal objection after pronouncement of\nsentence is necessary to invoke appellate reasonableness review of\nthe length of a defendant's sentence.\" Holguin-Hernandez v. United\nStates, No. 18-7739 (June 3, 2019).\n\n\n - 6 -\n\favoided application of the 120-month mandatory minimum sentence,\n\nit was unreasonable for the district court to impose a guidelines\n\nsentence above the mandatory minimum. Such a sentence, he argues,\n\nis incompatible with the purpose of the safety valve \"to 'mitigate\n\nthe harsh effect of mandatory minimum sentences' on first-time,\n\nlow-level offenders in drug trafficking schemes.\" United States\n\nv. Padilla-Colón, 578 F.3d 23, 30 (1st Cir. 2009) (quoting United\n\nStates v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000)).\n\n As we observed in Padilla-Colón, however, Congress\n\nassumed that the beneficiaries of the safety valve would have\n\nguideline sentence ranges below the mandatory minimums. Id. at 30\n\nn.3 (citing H.R. Rep. No. 103-460 (1994)). According to a House\n\nReport, members of Congress were motivated to create the safety\n\nvalve by the phenomenon that\n\n sentence reductions for mitigating factors\n were available to the most culpable, [but]\n they did not operate to the benefit of the\n least culpable, whose guideline sentences\n already fell below the applicable mandatory\n minimums. In response, the House sought to\n exempt a 'narrow class' of drug defendants --\n those least culpable -- from the mandatory-\n minimum sentencing scheme.\n\nId.\n\n If the drug offense at issue involves a large quantity\n\nof drugs, as it does here, that assumption about the \"least\n\nculpable\" defendants does not apply. See United States v. De la\n\nCruz-Gutiérrez, 881 F.3d 221, 227 (1st Cir. 2018) (finding a 120-\n\n\n - 7 -\n\fmonth sentence substantively reasonable where the defendant\n\nqualified for the safety valve but had a guidelines range of 108\n\nto 135 months due to the amount of drugs involved). Reyes-Gomez\n\naccepted responsibility for 150 to 450 kilograms of cocaine.\n\nBefore the safety valve applied, he faced a total offense level of\n\n33, with a criminal history category of I, and a guidelines range\n\nof 135 to 168 months. Although the application of the safety valve\n\neliminated the 120-month mandatory minimum sentence and reduced\n\nthe applicable guidelines range to 108 to 135 months, the safety\n\nvalve statute instructs courts to impose a sentence \"pursuant to\n\nguidelines\" and \"without regard to any statutory minimum\n\nsentence.\" 18 U.S.C. § 3553(f). The defendant's argument that\n\nthe application of the safety valve converted the mandatory minimum\n\ninto a sentencing cap disregards that statutory instruction. Under\n\nthe circumstances here, a within-guidelines sentence for a safety\n\nvalve-qualifying defendant, even when the sentence exceeds the\n\nmandatory minimum, is a \"defensible outcome.\"\n\nC. Alleged Reasoning Errors\n\n Reyes-Gomez also contests the district court's stated\n\nreasoning for the sentence of 135 months. He argues that the\n\ncourt's inference that he had gained the trust of the leaders of\n\nthe organization was unreasonable, given that the court also found\n\nthat he was not a leader for the purposes of the safety valve. We\n\ndisagree. The large quantity of drugs for which Reyes-Gomez\n\n\n - 8 -\n\faccepted responsibility permitted the district court to draw the\n\ninference that he, though not a leader of the organization, was\n\ntrusted within the organization. See De la Cruz-Gutiérrez, 881\n\nF.3d at 227 (holding that the sentencing court reasonably inferred\n\nthat the defendant, who participated in a smuggling venture of\n\nmore than 150 kilograms of cocaine on a hazardous voyage at sea,\n\nwas a trusted person in the organization).\n\n Reyes-Gomez also argues that the court unreasonably\n\nconcluded that he had previously engaged in other drug smuggling\n\nventures because the record did not indicate the drug quantity in\n\nhis prior arrest in the Dominican Republic for drug possession.\n\nThis argument misrepresents the uncontested information before the\n\nsentencing judge.\n\n The operative second-amended presentence report (\"PSR\")\n\nstated that Reyes-Gomez and two other individuals were arrested in\n\nthe Dominican Republic in 2010, following a pursuit at sea.\n\nRelying on certified documents provided by the U.S. Drug\n\nEnforcement Administration, the PSR stated that officials seized\n\n14.38 pounds of marijuana that had been tossed from the arrestees'\n\nboat. Reyes-Gomez's counsel indicated at sentencing that he had\n\nreceived these documents, and he did not challenge them.\n\n The district court is free to rely on conduct set forth\n\nin undisputed portions of the PSR at sentencing. It permissibly\n\ninferred from the large quantity of marijuana involved in this\n\n\n - 9 -\n\fprior possession charge, as indicated by the certified documents,\n\nthat it was not for personal use. See United States v. Mercer,\n\n834 F.3d 39, 50 (1st Cir. 2016); cf. United States v. Marrero-\n\nPérez, 914 F.3d 20, 22 (1st Cir. 2019) (holding that courts may\n\nnot rely on an arrest without a conviction or other \"independent\n\nproof of conduct\").\n\n Affirmed.\n\n\n\n\n - 10 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Appellee, v. Francisco REYES-GOMEZ, Defendant, Appellant.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-11\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-1757\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n FRANCISCO REYES-GOMEZ,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Juan M. Pérez-Giménez, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Stahl, and Lipez,\\n Circuit Judges.\\n\\n\\n Mariángela Tirado-Vales on brief for appellant.\\n Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana\\nE. Bauzá-Almonte, Assistant United States Attorney, Chief,\\nAppellate Division, and B. Kathryn Debrason, Assistant United\\nStates Attorney, on brief for appellee.\\n\\n\\n June 11, 2019\\n\\f LIPEZ, Circuit Judge. Defendant Francisco Reyes-Gomez\\n\\nclaims on appeal that the sentence imposed by the district court\\n\\nwas substantively unreasonable. Although the sentencing judge\\n\\nfound that Reyes-Gomez qualified for the safety valve exception to\\n\\nthe 120-month mandatory minimum sentence, he nonetheless imposed\\n\\na 135-month term of imprisonment. We affirm.\\n\\n I.\\n\\n Reyes-Gomez pled guilty to conspiracy to import a\\n\\ncontrolled substance (Count One), 21 U.S.C. §§ 952(a), 960(a)(1)\\n\\n& (b)(1)(B), 963, and unlawful entry into the United States (Count\\n\\nFive), 8 U.S.C. § 1325(a)(1). He faced a 120-month mandatory\\n\\nminimum term of imprisonment for Count One.\\n\\n Reyes-Gomez and the government entered into a plea\\n\\nagreement, which included the following \\\"Sentence Recommendation\\\"\\n\\nprovision:\\n\\n After due consideration of the relevant\\n factors enumerated in Title 18, United States\\n Code, Section 3553(a), the parties reserve the\\n right to recommend a sentence [of] 120 months\\n for COUNT ONE. For COUNT FIVE, the parties\\n will recommend a sentence of six months to run\\n concurrent with the sentence imposed in COUNT\\n ONE.\\n NOTE: The defendant recognizes that COUNT ONE\\n carries a statutory minimum sentence of one\\n hundred twenty (120) months.\\n\\nThe plea agreement also contained a waiver-of-appeal provision:\\n\\n The defendant knowingly and voluntarily waives\\n the right to appeal the judgment and sentence\\n in this case, provided that the defendant is\\n\\n\\n - 2 -\\n\\f sentenced in accordance with the terms and\\n conditions set forth in the Sentence\\n Recommendation provisions of this Plea\\n Agreement.\\n\\nThe parties subsequently agreed to a plea agreement supplement,\\n\\nwhich stated, in relevant part:\\n\\n The provisions in this Plea Agreement\\n Supplement override any conflicting\\n provisions in the Plea Agreement.\\n\\n . . . [I]f the defendant complies with the\\n requirements of [U.S.S.G.] 5C1.2 and 18\\n [U.S.C. §] 3553(f), and is deemed otherwise\\n eligible, the statutory minimum would not\\n apply and the offense level would be subject\\n to an additional two level reduction for an\\n adjusted offense level of 31. In that case,\\n the parties would be free to recommend a\\n sentence within the applicable guideline range\\n for a total offense level [of] 31 when\\n combined with the defendant's criminal history\\n category as determined by the Court.\\n\\n The law referenced in the plea agreement supplement is\\n\\nthe so-called \\\"safety valve\\\" provision of the sentencing statute.\\n\\nThe safety valve allows a defendant to avoid a mandatory minimum\\n\\nsentence and reduces the defendant's total offense level when the\\n\\ndefendant satisfies certain mitigating factors.1 See 18 U.S.C.\\n\\n§ 3553(f); U.S.S.G. § 5C1.2.\\n\\n\\n 1 Under the then-effective version of the statute, the\\n§ 3553(f) factors were:\\n (1) the defendant does not have more than 1\\n criminal history point, as determined under\\n the sentencing guidelines;\\n (2) the defendant did not use violence or\\n credible threats of violence or possess a\\n\\n\\n - 3 -\\n\\f At the sentencing hearing, the district court found that\\n\\nReyes-Gomez qualified for the § 3553(f) safety valve provision.\\n\\nThe court accordingly determined that the 120-month mandatory\\n\\nminimum did not apply and reduced the defendant's total offense\\n\\nlevel to 31. Adopting the presentence report's recommended\\n\\ncriminal history category of I, the district court determined that\\n\\nthe guidelines sentence range was 108 to 135 months. The defendant\\n\\nasked for a sentence of 108 months, and the government asked for\\n\\n120 months, as it said that it would do in the \\\"Sentence\\n\\nRecommendation\\\" provision of the plea agreement.\\n\\n\\n firearm or other dangerous weapon (or induce\\n another participant to do so) in connection\\n with the offense;\\n (3) the offense did not result in death or\\n serious bodily injury to any person;\\n (4) the defendant was not an organizer,\\n leader, manager, or supervisor of others in\\n the offense, as determined under the\\n sentencing guidelines and was not engaged in\\n a continuing criminal enterprise, as defined\\n in section 408 of the Controlled Substances\\n Act; and\\n (5) not later than the time of the sentencing\\n hearing, the defendant has truthfully provided\\n to the Government all information and evidence\\n the defendant has concerning the offense or\\n offenses that were part of the same course of\\n conduct or of a common scheme or plan, but the\\n fact that the defendant has no relevant or\\n useful other information to provide or that\\n the Government is already aware of the\\n information shall not preclude a determination\\n by the court that the defendant has complied\\n with this requirement.\\n\\n\\n - 4 -\\n\\f The court imposed a sentence of 135 months for Count One\\n\\nand six months to run concurrently for Count Five. The court\\n\\nreasoned that the offense involved significant planning and a large\\n\\nquantity of drugs, which demonstrated the drug trafficking\\n\\nleaders' trust in the defendant. The court also noted that\\n\\ndocuments relating to Reyes-Gomez's prior drug possession arrest\\n\\nin the Dominican Republic indicated that he \\\"was engaged in other\\n\\ndrug smuggling ventures\\\" and was \\\"not a newcomer to this type of\\n\\nactivity.\\\" This appeal followed.2\\n\\n II.\\n\\n Reyes-Gomez claims that his 135-month sentence was\\n\\nsubstantively unreasonable. He argues that a sentence above the\\n\\n120-month mandatory minimum undermines the purpose of the safety\\n\\nvalve and that the court's reasoning for imposing his sentence was\\n\\nflawed.\\n\\nA. Standard of Review\\n\\n We have not yet resolved the question of what standard\\n\\nof review applies to an unpreserved claim of substantive\\n\\nunreasonableness in sentencing. United States v. Márquez-García,\\n\\n862 F.3d 143, 147 (1st Cir. 2017); see also United States v. Ruiz-\\n\\n\\n\\n 2We bypass the waiver-of-appeal argument raised by the\\ngovernment because this case is easily resolved against the\\ndefendant on the merits. See United States v. Mangual-Rosado, 907\\nF.3d 107, 110 (1st Cir. 2018); United States v. Díaz-Rodríguez,\\n853 F.3d 540, 543-44 (1st Cir. 2017).\\n\\n\\n - 5 -\\n\\fHuertas, 792 F.3d 223, 228 (1st Cir. 2015) (noting that six out of\\n\\nthe seven circuits that had examined the issue held that a\\n\\nsubstantive reasonableness claim need not be preserved).3 So, as\\n\\nwe have done before, we \\\"skirt this murky area, [and] assume,\\n\\nfavorably to the appellant that the abuse-of-discretion standard\\n\\napplies.\\\" Márquez-García, 862 F.3d at 147. Substantive\\n\\nreasonableness thus hinges on whether the sentencing rationale is\\n\\n\\\"plausibly reasoned and resulted in a defensible outcome.\\\" United\\n\\nStates v. Alejandro-Rosado, 878 F.3d 435, 440 (1st Cir. 2017).\\n\\n We also note that \\\"[a] challenge directed at substantive\\n\\nreasonableness is usually a heavy lift, and reversal is\\n\\n'particularly unlikely when . . . the sentence imposed fits within\\n\\nthe compass of a properly calculated [guideline sentencing\\n\\nrange].'\\\" Ruiz-Huertas, 792 F.3d at 228–29 (quoting United States\\n\\nv. Vega–Salgado, 769 F.3d 100, 105 (1st Cir. 2014)). Because\\n\\nReyes-Gomez's 135-month sentence was within the uncontested\\n\\nguidelines range, his appeal must overcome this formidable hurdle.\\n\\nB. Mitigating Purpose of the Safety Valve\\n\\n Reyes-Gomez contends that once the district court\\n\\nconcluded that he qualified for the safety valve, and he thereby\\n\\n\\n\\n 3The Supreme Court recently granted certiorari on the\\nquestion of \\\"[w]hether a formal objection after pronouncement of\\nsentence is necessary to invoke appellate reasonableness review of\\nthe length of a defendant's sentence.\\\" Holguin-Hernandez v. United\\nStates, No. 18-7739 (June 3, 2019).\\n\\n\\n - 6 -\\n\\favoided application of the 120-month mandatory minimum sentence,\\n\\nit was unreasonable for the district court to impose a guidelines\\n\\nsentence above the mandatory minimum. Such a sentence, he argues,\\n\\nis incompatible with the purpose of the safety valve \\\"to 'mitigate\\n\\nthe harsh effect of mandatory minimum sentences' on first-time,\\n\\nlow-level offenders in drug trafficking schemes.\\\" United States\\n\\nv. Padilla-Colón, 578 F.3d 23, 30 (1st Cir. 2009) (quoting United\\n\\nStates v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000)).\\n\\n As we observed in Padilla-Colón, however, Congress\\n\\nassumed that the beneficiaries of the safety valve would have\\n\\nguideline sentence ranges below the mandatory minimums. Id. at 30\\n\\nn.3 (citing H.R. Rep. No. 103-460 (1994)). According to a House\\n\\nReport, members of Congress were motivated to create the safety\\n\\nvalve by the phenomenon that\\n\\n sentence reductions for mitigating factors\\n were available to the most culpable, [but]\\n they did not operate to the benefit of the\\n least culpable, whose guideline sentences\\n already fell below the applicable mandatory\\n minimums. In response, the House sought to\\n exempt a 'narrow class' of drug defendants --\\n those least culpable -- from the mandatory-\\n minimum sentencing scheme.\\n\\nId.\\n\\n If the drug offense at issue involves a large quantity\\n\\nof drugs, as it does here, that assumption about the \\\"least\\n\\nculpable\\\" defendants does not apply. See United States v. De la\\n\\nCruz-Gutiérrez, 881 F.3d 221, 227 (1st Cir. 2018) (finding a 120-\\n\\n\\n - 7 -\\n\\fmonth sentence substantively reasonable where the defendant\\n\\nqualified for the safety valve but had a guidelines range of 108\\n\\nto 135 months due to the amount of drugs involved). Reyes-Gomez\\n\\naccepted responsibility for 150 to 450 kilograms of cocaine.\\n\\nBefore the safety valve applied, he faced a total offense level of\\n\\n33, with a criminal history category of I, and a guidelines range\\n\\nof 135 to 168 months. Although the application of the safety valve\\n\\neliminated the 120-month mandatory minimum sentence and reduced\\n\\nthe applicable guidelines range to 108 to 135 months, the safety\\n\\nvalve statute instructs courts to impose a sentence \\\"pursuant to\\n\\nguidelines\\\" and \\\"without regard to any statutory minimum\\n\\nsentence.\\\" 18 U.S.C. § 3553(f). The defendant's argument that\\n\\nthe application of the safety valve converted the mandatory minimum\\n\\ninto a sentencing cap disregards that statutory instruction. Under\\n\\nthe circumstances here, a within-guidelines sentence for a safety\\n\\nvalve-qualifying defendant, even when the sentence exceeds the\\n\\nmandatory minimum, is a \\\"defensible outcome.\\\"\\n\\nC. Alleged Reasoning Errors\\n\\n Reyes-Gomez also contests the district court's stated\\n\\nreasoning for the sentence of 135 months. He argues that the\\n\\ncourt's inference that he had gained the trust of the leaders of\\n\\nthe organization was unreasonable, given that the court also found\\n\\nthat he was not a leader for the purposes of the safety valve. We\\n\\ndisagree. The large quantity of drugs for which Reyes-Gomez\\n\\n\\n - 8 -\\n\\faccepted responsibility permitted the district court to draw the\\n\\ninference that he, though not a leader of the organization, was\\n\\ntrusted within the organization. See De la Cruz-Gutiérrez, 881\\n\\nF.3d at 227 (holding that the sentencing court reasonably inferred\\n\\nthat the defendant, who participated in a smuggling venture of\\n\\nmore than 150 kilograms of cocaine on a hazardous voyage at sea,\\n\\nwas a trusted person in the organization).\\n\\n Reyes-Gomez also argues that the court unreasonably\\n\\nconcluded that he had previously engaged in other drug smuggling\\n\\nventures because the record did not indicate the drug quantity in\\n\\nhis prior arrest in the Dominican Republic for drug possession.\\n\\nThis argument misrepresents the uncontested information before the\\n\\nsentencing judge.\\n\\n The operative second-amended presentence report (\\\"PSR\\\")\\n\\nstated that Reyes-Gomez and two other individuals were arrested in\\n\\nthe Dominican Republic in 2010, following a pursuit at sea.\\n\\nRelying on certified documents provided by the U.S. Drug\\n\\nEnforcement Administration, the PSR stated that officials seized\\n\\n14.38 pounds of marijuana that had been tossed from the arrestees'\\n\\nboat. Reyes-Gomez's counsel indicated at sentencing that he had\\n\\nreceived these documents, and he did not challenge them.\\n\\n The district court is free to rely on conduct set forth\\n\\nin undisputed portions of the PSR at sentencing. It permissibly\\n\\ninferred from the large quantity of marijuana involved in this\\n\\n\\n - 9 -\\n\\fprior possession charge, as indicated by the certified documents,\\n\\nthat it was not for personal use. See United States v. Mercer,\\n\\n834 F.3d 39, 50 (1st Cir. 2016); cf. United States v. Marrero-\\n\\nPérez, 914 F.3d 20, 22 (1st Cir. 2019) (holding that courts may\\n\\nnot rely on an arrest without a conviction or other \\\"independent\\n\\nproof of conduct\\\").\\n\\n Affirmed.\\n\\n\\n\\n\\n - 10 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2368,"cells":{"id":{"kind":"number","value":4628395,"string":"4,628,395"},"name":{"kind":"string","value":"NACM-NEW ENGLAND, INC., D/B/A Business Credit Intelligence, Plaintiff, Appellee, v. NATIONAL ASSOCIATION OF CREDIT MANAGEMENT, INC., Defendant, Appellant."},"name_abbreviation":{"kind":"string","value":"Nacm-New Eng., Inc. v. Nat'l Ass'n of Credit Mgmt., Inc."},"decision_date":{"kind":"string","value":"2019-06-11"},"docket_number":{"kind":"string","value":"18-1960P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Lipez, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARRON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1960\\n\\n NACM-NEW ENGLAND, INC.,\\n d/b/a BUSINESS CREDIT INTELLIGENCE,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n NATIONAL ASSOCIATION OF CREDIT MANAGMENT, INC.,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Timothy S. Hillman, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Lipez, and Barron,\\n Circuit Judges.\\n\\n\\n Michael J. Lambert, with whom Sheehan, Phinney, Bass & Green,\\nP.A. was on brief, for appellant.\\n Jack K. Merrill, with whom KSR Law was on brief, for appellee.\\n\\n\\n June 11, 2019\\n\\f BARRON, Circuit Judge. This appeal arises out of a\\n\\nbreach of contract suit between a national trade association of\\n\\ncredit professionals, National Association of Credit Management,\\n\\nInc. (\\\"NACM\\\"), and one of its regional affiliates, NACM-New\\n\\nEngland, Inc., which does business under the name Business Credit\\n\\nIntelligence (\\\"BCI\\\"). NACM appeals from the District Court's\\n\\nSeptember 24, 2018 order granting injunctive and declaratory\\n\\nrelief to BCI. We affirm in part, vacate in part, and remand in\\n\\npart the order of injunctive relief. We vacate and remand the\\n\\ndeclaratory judgment.\\n\\n I.\\n\\n The following facts were found by the District Court and\\n\\nare not in dispute on appeal. NACM is a national trade association\\n\\nof commercial credit professionals that provides services, such as\\n\\neducational programs and legislative advocacy, to a series of\\n\\nregional \\\"Affiliates.\\\" BCI is one of those Affiliates. Under the\\n\\ncontract at issue, it has exclusive rights to provide credit\\n\\nservices as a NACM Affiliate in the New England area.\\n\\n Affiliates have customers, called \\\"members,\\\" to whom\\n\\nthey provide \\\"core services.\\\" These include access to credit\\n\\ninformation, education on credit issues, and collection services.\\n\\nMembers of Affiliates are also members of NACM. NACM also provides\\n\\neducation and professional certification coursework to members.\\n\\n\\n\\n\\n - 2 -\\n\\f Each Affiliate signs an identical contract with NACM.\\n\\nThis appeal arises out of NACM's termination of the 2011 version\\n\\nof this agreement (\\\"2011 Agreement\\\") between BCI and NACM.\\n\\n The 2011 Agreement provides, among other things, that\\n\\nNACM will provide services to Affiliates on certain terms and that\\n\\nNACM will not \\\"disclose the specific membership list, or portions\\n\\nthereof, of any Affiliate to any person or entity\\\" that provides\\n\\n\\\"core services.\\\" The 2011 Agreement permits either NACM or the\\n\\nAffiliate to terminate the agreement \\\"for cause upon 90 days\\n\\nwritten notice to the other.\\\"\\n\\n The 2011 Agreement was automatically renewed on October\\n\\n28, 2016. Thus, it would remain in effect until October 28, 2021\\n\\nif not terminated for \\\"cause.\\\" On May 12, 2017, however, NACM\\n\\nsent the Chief Operating Officers of the Affiliates (\\\"Affiliate\\n\\nCOOs\\\") a new agreement to be discussed at a meeting of the NACM\\n\\nBoard of Directors in June of 2017 and at a meeting of the Affiliate\\n\\nCOOs that same month.\\n\\n Following those meetings, on June 14, 2017, Jon Flora,\\n\\na member of the NACM Board, informed BCI that the NACM Board had\\n\\napproved a new Affiliate agreement. NACM circulated the new\\n\\nagreement to Affiliate COOs on July 13, 2017, and informed them\\n\\nthat the NACM Board had \\\"voted to simultaneously terminate all\\n\\nNACM Affiliated Association Agreements . . . and adopt the new\\n\\nNACM Affiliation Agreement . . . on August 18[, 2017] at 12 noon\\n\\n\\n - 3 -\\n\\fET.\\\" Affiliates were required to return signed versions of the\\n\\nnew agreement by that time \\\"in order to maintain . . . Affiliate\\n\\nstatus.\\\" BCI was not happy with the new agreement's terms and\\n\\nrefused to sign, thus risking disaffiliation upon termination of\\n\\nthe 2011 Agreement.\\n\\n On August 21, 2017, NACM's President, Robin Schauseil,\\n\\nemailed BCI. She informed BCI that seventeen of the twenty-two\\n\\nAffiliates had signed the 2017 Agreement and thus that there was\\n\\n\\\"now a super majority of support for the 2017 Agreement.\\\" In that\\n\\nemail, Schauseil indicated that the 2011 Agreement would terminate\\n\\neffective November 17, 2017, pursuant to Article IV, Section 4.D\\n\\nof the 2011 Agreement. That section provides that the agreement\\n\\nmay be \\\"terminated . . . for cause upon 90 days written notice.\\\"\\n\\nSchauseil further explained that \\\"[d]uring the 90-day termination\\n\\nperiod, NACM will work towards ensuring that members . . . have\\n\\naccess to NACM products, services and benefits after November\\n\\n17th.\\\" In anticipation of the termination of the 2011 Agreement\\n\\nwith BCI, NACM awarded BCI's territory to NACM Connect, the\\n\\nAffiliate for the Chicago area.\\n\\n On November 8, 2017, BCI filed a complaint in\\n\\nMassachusetts state court against NACM. The complaint alleged,\\n\\namong other things, breach of contract. The case was removed a\\n\\nweek later to the United States District Court for the District of\\n\\n\\n\\n\\n - 4 -\\n\\fMassachusetts on the basis of diversity jurisdiction. See 28\\n\\nU.S.C. § 1332.\\n\\n The same day that the case was removed, BCI filed an\\n\\nemergency motion for a preliminary injunction and a hearing on\\n\\nthat motion. BCI sought an injunction to require NACM to continue\\n\\nto abide by the terms of the 2011 Agreement, which it claimed that\\n\\nNACM had breached. NACM filed its opposition to that motion the\\n\\nfollowing day.\\n\\n On November 17, 2017 -- the date NACM intended to\\n\\nterminate the 2011 Agreement -- the District Court granted BCI's\\n\\nrequest for a preliminary injunction, after a hearing, and\\n\\nscheduled a \\\"hearing on BCI's request for permanent injunctive\\n\\nrelief\\\" for December 5, 2017. This hearing was continued multiple\\n\\ntimes and then canceled after NACM filed an answer. NACM's answer\\n\\nincluded a demand for a jury trial.\\n\\n A hearing was then set on the docket and was referred to\\n\\nas a \\\"preliminary injunction\\\" hearing in that docket entry. That\\n\\nhearing, in later docket entries, was referred to as a \\\"Hearing on\\n\\n[Docket Entry] 21 Motion for Order re: Prior Preliminary\\n\\nInjunction.\\\"\\n\\n BCI's \\\"Motion for Order re: Prior Preliminary\\n\\nInjunction\\\" asked the District Court to address what BCI argued\\n\\nwas NACM's failure to follow the terms of the preliminary\\n\\n\\n\\n\\n - 5 -\\n\\finjunction. The hearing on that motion took place over four\\n\\ndays -- specifically, April 17-19, 2018, and May 8, 2018.\\n\\n On September 24, 2018, the District Court entered an\\n\\norder granting an injunction and a declaratory judgment to BCI.\\n\\nThat injunction, in relevant part, ordered that the 2011 Agreement\\n\\nremained in effect and required NACM to \\\"continue to honor all its\\n\\nobligations thereunder, including its obligation not to share\\n\\nBCI's membership list with any entity that provides core\\n\\nservices.\\\"1 The District Court declared, \\\"as a matter of law, that\\n\\nNACM did not properly terminate the 2011 Agreement and, therefore,\\n\\ndid not have 'cause' to terminate BCI's affiliation agreement on\\n\\nNovember 17, 2017.\\\" NACM timely appealed.\\n\\n II.\\n\\n We start with NACM's challenge to the District Court's\\n\\norder of injunctive relief. NACM contends that \\\"[t]he text of the\\n\\nactual Order indicates the District Court issued a permanent\\n\\ninjunction\\\" because \\\"there was no qualification [that the\\n\\ninjunction] was limited to the pendency of the litigation.\\\" From\\n\\nthat premise, NACM argues that the District Court committed legal\\n\\nerror by analyzing the case under the preliminary injunction\\n\\n\\n\\n 1\\n The injunction does also prohibit NACM from \\\"interfering\\nwith the business relationship between BCI\\\" and another entity\\ncalled United TranzActions, LLC, but NACM does not attack that\\nportion of the injunction. Accordingly, we need not address that\\naspect of the injunction.\\n\\n\\n - 6 -\\n\\fstandard, which requires only a showing of likelihood of success\\n\\non the merits rather than actual success. Compare eBay, Inc. v.\\n\\nMercExchange, L.L.C., 547 U.S. 388, 391 (2006) (setting forth the\\n\\nstandard for a permanent injunction), with Voice of the Arab World,\\n\\nInc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)\\n\\n(same for a preliminary injunction).\\n\\n Our review of a District Court's entry of an injunction\\n\\nis for abuse of discretion. Am. Bd. of Psychiatry & Neurology,\\n\\nInc. v. Johnson-Powell, 129 F.3d 1, 2-3 (1st Cir. 1997). But,\\n\\nhere, the question at issue necessarily turns on the proper\\n\\nconstruction of the District Court's order, which presents a\\n\\nquestion of law that we review de novo. See Highmark Inc. v.\\n\\nAllcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 (2014)\\n\\n(\\\"[D]ecisions on questions of law are reviewable de novo . . . .\\\"\\n\\n(internal quotation marks omitted)).\\n\\n The text of the order of injunctive relief explains that\\n\\nit is \\\"based on [the District Court]'s finding that NACM is\\n\\nrequired to continue to perform its obligations under the 2011\\n\\nagreement during the pendency of any dispute between the parties.\\\"\\n\\nThat temporal limitation is most naturally read to apply to the\\n\\nremainder of the order, as that language is immediately followed\\n\\nby \\\"[i]t is hereby ordered that . . .\\\" and the specific terms of\\n\\nthe order -- namely, that NACM must comply with the 2011 Agreement.\\n\\n\\n\\n\\n - 7 -\\n\\f So understood, the application of the preliminary\\n\\ninjunction standard is less evidence of the District Court's error\\n\\nin selecting the proper standard for assessing whether to issue an\\n\\ninjunction than of the District Court's intention to issue only a\\n\\npreliminary injunction. We therefore conclude that the District\\n\\nCourt did not abuse its discretion in applying the preliminary\\n\\ninjunction standard, because the injunction that it issued was a\\n\\npreliminary injunction.\\n\\n NACM next contends that, even if the District Court\\n\\nissued a preliminary -- rather than a permanent -- injunction, the\\n\\nDistrict Court still erred. NACM contends that the District Court\\n\\ndid so by failing to find sufficient evidence of irreparable harm\\n\\nto support the injunction. See Winter v. Nat. Res. Def. Council,\\n\\nInc., 555 U.S. 7, 20 (2008) (holding that a party seeking a\\n\\npreliminary injunction \\\"must establish [1] that he is likely to\\n\\nsucceed on the merits, [2] that he is likely to suffer irreparable\\n\\nharm in the absence of preliminary relief, [3] that the balance of\\n\\nequities tips in his favor, and [4] that an injunction is in the\\n\\npublic interest\\\"). Our review of the District Court's irreparable\\n\\nharm finding is for abuse of discretion. See Johnson-Powell, 129\\n\\nF.3d at 2-3.\\n\\n The general rule in our Circuit is that \\\"traditional\\n\\neconomic damages can be remedied by compensatory awards, and thus\\n\\ndo not rise to the level of being irreparable.\\\" Vacquería Tres\\n\\n\\n - 8 -\\n\\fMonjitas, Inc. v. Irizarry, 587 F.3d 464, 485 (1st Cir. 2009)\\n\\n(citing P.R. Hosp. Supply, Inc. v. Bos. Sci. Corp., 426 F.3d 503,\\n\\n507 (1st Cir. 2005)). Injunctive relief is permissible, however,\\n\\n\\\"where the potential economic loss is so great as to threaten the\\n\\nexistence of the movant's business.\\\" Id. (quoting Performance\\n\\nUnlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1382\\n\\n(6th Cir. 1995)).\\n\\n As an initial matter, NACM argues that the District\\n\\nCourt's analysis and explanation of the irreparable harm factor\\n\\nwas so deficient as to constitute an abuse of discretion. But,\\n\\nthe District Court, after hearing testimony from both parties,\\n\\nfound \\\"that BCI ha[d] demonstrated a serious risk of irreparable\\n\\nharm in the absence of an injunction.\\\" Moreover, the record shows\\n\\nthat the District Court, after hearing nearly four days of\\n\\ntestimony, concluded that \\\"[d]isclosure of [BCI's] membership list\\n\\nto NACM Connect would\\\" -- and thus not merely that such disclosure\\n\\ncould -- \\\"be devastating.\\\" (emphasis added). The District Court\\n\\nalso found that BCI faced a \\\"real threat of harm\\\" from the\\n\\ndisclosure, Matos ex rel. Matos v. Clinton Sch. Dist., 367 F.3d\\n\\n68, 73 (1st Cir. 2004), and the District Court did so after finding\\n\\nthat, upon NACM's disclosure of lists of BCI members that are\\n\\nprotected by the 2011 agreement to NACM Connect, BCI's competitor\\n\\nwould have \\\"all necessary information at its disposal to poach\\n\\nBCI's clients\\\"; that NACM Connect has previously taken customers\\n\\n\\n - 9 -\\n\\faway from BCI; that BCI operates on a \\\"break even basis\\\"; and that\\n\\n\\\"a significant loss of members, . . . about 20%, could cause BCI\\n\\nto become insolvent\\\" following testimony from BCI that \\\"if we lost\\n\\n20% of our members, we will be out of business.\\\"\\n\\n Thus, at least with respect to the finding of irreparable\\n\\nharm that would flow from disclosure, we are able to discern what\\n\\nfactors were weighed and \\\"the [D]istrict [C]ourt's thought\\n\\nprocess[.]\\\" Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331,\\n\\n337 (1st Cir. 1997). We thus see no abuse of discretion based on\\n\\na failure to make the basis for the finding known.\\n\\n NACM also contends that the finding of irreparable harm\\n\\nwas based on nothing \\\"more than conjecture, surmise, or a party's\\n\\nunsubstantiated fears of what the future may have in store.\\\"\\n\\nCharlesbank Equity Fund II, Ltd. v. Blinds To Go, Inc., 370 F.3d\\n\\n151, 162 (1st Cir. 2004). But, our review is for abuse of\\n\\ndiscretion, and the supportable findings that the District Court\\n\\nmade concerning BCI's precarious financial state and the prospect\\n\\nof poaching that would follow from the violation of NACM's\\n\\nobligations with respect to disclosure suffice to refute this\\n\\nground of objection with respect to the finding of irreparable\\n\\nharm concerning disclosure.\\n\\n Insofar as NACM means to argue that the District Court's\\n\\nfinding of irreparable harm is not sustainable because the record\\n\\nshows that BCI's membership list is not \\\"confidential and\\n\\n\\n - 10 -\\n\\fprotectable,\\\" we disagree. To support the contention, NACM points\\n\\nonly to the compilation of conference attendance lists that include\\n\\nmembers and non-members and to its own provision of BCI's\\n\\nmembership list to companies like UPS for purposes of member\\n\\ndiscounts. That evidence, however, does not concern the\\n\\ndisclosure of a complete membership list to a direct competitor in\\n\\na manner that facilitates poaching.\\n\\n NACM also contends that, absent a finding that NACM's\\n\\n\\\"bare-bones\\\" list of BCI's members constitutes \\\"the specific\\n\\nmembership list, or portions thereof, of any Affiliate\\\" within the\\n\\nmeaning of the 2011 Agreement, the District Court \\\"could not have\\n\\ndetermined BCI succeeded (or was likely to succeed) on the merits\\n\\nof its claim that NACM's provision of its own list to a replacement\\n\\nAffiliate violated the 2011 Agreement and should be enjoined.\\\"\\n\\nAnd, NACM contends, the District Court made no such finding.\\n\\n But, the District Court found that BCI was likely to\\n\\nsucceed on its breach of contract claim not because of any\\n\\ndisclosure that NACM had made prior to the termination of the 2011\\n\\nAgreement but because BCI was likely to succeed in showing that\\n\\nNACM breached that agreement by failing to terminate the agreement\\n\\n\\\"for cause.\\\" And, insofar as NACM believes the scope of the\\n\\ninjunction is unclear as to which lists it covers, we note that\\n\\nthe relevant portion of the District Court's injunction is, by its\\n\\nterms, coextensive with the 2011 Agreement's non-disclosure\\n\\n\\n - 11 -\\n\\fprovision, which prohibits NACM from disclosing \\\"the specific\\n\\nmembership list, or portions thereof, of any affiliate.\\\" In any\\n\\nevent, NACM may seek -- as BCI rightly points out -- clarification\\n\\nfrom the District Court to the extent it is not clear as to the\\n\\nscope of the injunction concerning disclosure.\\n\\n There does remain NACM's challenge to the portion of the\\n\\nDistrict Court's injunction that orders that the 2011 Agreement\\n\\n\\\"remain in place\\\" and that NACM \\\"continue to honor all its\\n\\nobligations thereunder.\\\" NACM contends that the District Court\\n\\ndid not make the requisite finding that irreparable harm would\\n\\noccur if NACM were not required to honor its obligations -- other\\n\\nthan its obligation not to disclose certain membership\\n\\nlists -- under the 2011 Agreement. NACM argues that, for this\\n\\nreason, the injunction is overbroad.\\n\\n Here, we agree with NACM that the record shows -- as\\n\\nBCI's counsel candidly acknowledged at oral argument -- that the\\n\\nDistrict Court did not make any such finding of irreparable harm.\\n\\nThus, we conclude that the District Court abused its discretion\\n\\nwhen it ordered as part of the injunctive relief that the 2011\\n\\nAgreement \\\"remain in place and [that the parties must] continue to\\n\\noperate in accordance with its terms and NACM shall continue to\\n\\nhonor all its obligations thereunder.\\\" See Tamko Roofing Prods.,\\n\\nInc. v. Ideal Roofing Co., 282 F.3d 23, 40 (1st Cir. 2002)\\n\\n(\\\"[I]njunctive relief should be no more burdensome to the defendant\\n\\n\\n - 12 -\\n\\fthan necessary to provide complete relief to plaintiffs and courts\\n\\nmust closely tailor injunctions to the harm that they address.\\\"\\n\\n(alteration in original)(internal quotation marks and citations\\n\\nomitted)). We therefore vacate and remand the portion of the\\n\\ninjunction that requires NACM to abide by any terms of the 2011\\n\\nAgreement other than those prohibiting disclosure of \\\"the specific\\n\\nmembership list, or portions thereof\\\" of BCI to any person or\\n\\nentity providing \\\"core services.\\\"\\n\\n III.\\n\\n We turn next to the various challenges that NACM makes\\n\\nto the declaratory relief that the District Court ordered. The\\n\\nDistrict Court entered a declaratory judgment in favor of BCI after\\n\\nfinding, \\\"as a matter of law, that NACM did not properly terminate\\n\\nthe 2011 Agreement and, therefore, did not have 'cause' to\\n\\nterminate BCI's affiliation agreement on November 17, 2017.\\\"\\n\\n NACM first challenges the District Court's \\\"cause\\\"\\n\\nruling by asserting that the record fails to support the District\\n\\nCourt's findings regarding the process that NACM used to replace\\n\\nthe 2011 Agreement. But, in doing so, NACM takes issue with the\\n\\nDistrict Court's credibility determinations and factual findings\\n\\nwithout supplying an adequate basis for us to reject them. See\\n\\nUnited States v. 15 Bosworth St., 236 F.3d 50, 53-54 (1st Cir.\\n\\n2001) (explaining the deferential standard of review of bench\\n\\ntrials).\\n\\n\\n - 13 -\\n\\f Moreover, the District Court did not ultimately base its\\n\\nconclusion that NACM lacked \\\"cause\\\" to terminate the 2011 Agreement\\n\\non the findings that it made about the nature of the overall\\n\\nprocess that NACM used to attempt to replace that agreement with\\n\\na new one. Rather, the District Court based that conclusion on a\\n\\nmore particular finding: that NACM had failed to provide BCI with\\n\\nthe kind of notice of its intention to do so that the 2011 Agreement\\n\\nrequired NACM to provide. Yet, insofar as NACM takes on that\\n\\nfinding by the District Court, NACM merely sets forth a possible\\n\\nconstruction of a series of emails between NACM and BCI that the\\n\\nDistrict Court reasonably construed differently. See id. at 53.\\n\\n Separately, NACM does contend that the District Court\\n\\nerred in its ruling as to \\\"cause,\\\" because it evaluated whether\\n\\nNACM had \\\"cause\\\" to terminate the agreement without properly\\n\\napplying Maryland law, which, NACM contends, controls under the\\n\\n2011 Agreement's choice of law provision. In fact, NACM notes,\\n\\nthe District Court failed to cite to any Maryland law in reaching\\n\\nits conclusion that the termination was not for \\\"cause,\\\" as the\\n\\nDistrict Court cited only to Massachusetts cases that applied\\n\\nMassachusetts law.\\n\\n But, even if NACM were right to contend the District\\n\\nCourt did commit this \\\"legal error,\\\" we then would merely be\\n\\nrequired to vacate and remand the declaratory judgment so that\\n\\nfindings could be made by a proper factfinder under the proper\\n\\n\\n - 14 -\\n\\flegal standard. Yet, NACM separately contends that the District\\n\\nCourt erred in entering the declaratory judgment because it did so\\n\\nwithout submitting BCI's breach of contract claim to a jury,\\n\\nthereby depriving NACM of its right under the Seventh Amendment of\\n\\nthe Federal Constitution to a have a jury make the requisite\\n\\nfactual findings. Accordingly, we may proceed straight to the\\n\\nSeventh Amendment issue, given that we agree with NACM on that\\n\\nscore.\\n\\n The Seventh Amendment provides:\\n\\n In Suits at common law, where the value\\n in controversy shall exceed twenty\\n dollars, the right of trial by jury shall\\n be preserved, and no fact tried by a\\n jury, shall be otherwise re-examined in\\n any Court of the United States, than\\n according to the rules of the common law.\\n\\nU.S. Const. amend. VII. An order of declaratory relief on a claim\\n\\nfor breach of contract is \\\"essentially legal [in] nature.\\\" Simler\\n\\nv. Conner, 372 U.S. 221, 223 (1963) (per curiam). Thus, by\\n\\nentering the declaratory judgment on the breach of contract claim\\n\\nwithout a jury trial, the District Court violated NACM's Seventh\\n\\nAmendment rights. Id. Moreover, NACM was prejudiced thereby,\\n\\nfor, as BCI's counsel acknowledged at oral argument, the District\\n\\nCourt did not itself find -- let alone supportably so -- that no\\n\\nreasonable jury could find for NACM on the breach of contract\\n\\nclaim. See Fed. R. Civ. P. 50(a)(1).\\n\\n\\n\\n\\n - 15 -\\n\\f BCI does contend that \\\"NACM cannot now create a\\n\\nconstitutional issue by insinuating . . . that it didn't know the\\n\\nmerits of BCI's contract claim would be at issue in a permanent\\n\\ninjunction hearing that by definition focuses on those merits.\\\"\\n\\nBut, at oral argument, counsel for BCI, who was also counsel at\\n\\nthe hearing in question, conceded that BCI was not sure at the\\n\\nstart of that hearing whether it would be for a permanent or a\\n\\npreliminary injunction. And, NACM, at the start of that hearing,\\n\\ndid object to having a \\\"trial on the merits\\\" -- insofar as that\\n\\nwas the purpose of the hearing -- on the basis that it had demanded\\n\\na jury trial.2 Accordingly, pursuant to the Seventh Amendment, we\\n\\nvacate and remand the entry of the declaratory judgment on BCI's\\n\\nbreach of contract claim.\\n\\n IV.\\n\\n The September 24, 2018 order of the District Court\\n\\ngranting injunctive and declaratory relief to BCI is vacated in\\n\\npart and affirmed in part, and the matter is remanded for further\\n\\nproceedings consistent with this opinion. Each party shall bear\\n\\nits own costs.\\n\\n\\n\\n\\n 2 NACM also contends that the entry of the declaratory\\njudgment violated its procedural due process rights. But, we need\\nnot reach this contention, as we vacate the entry of the\\ndeclaratory judgment on Seventh Amendment grounds.\\n\\n\\n - 16 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405648/\", \"author_raw\": \"BARRON, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"LIPEZ"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4628395/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: NACM-NEW ENGLAND, INC., D/B/A Business Credit Intelligence, Plaintiff, Appellee, v. NATIONAL ASSOCIATION OF CREDIT MANAGEMENT, INC., Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1960\n\n NACM-NEW ENGLAND, INC.,\n d/b/a BUSINESS CREDIT INTELLIGENCE,\n\n Plaintiff, Appellee,\n\n v.\n\n NATIONAL ASSOCIATION OF CREDIT MANAGMENT, INC.,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Timothy S. Hillman, U.S. District Judge]\n\n\n Before\n\n Lynch, Lipez, and Barron,\n Circuit Judges.\n\n\n Michael J. Lambert, with whom Sheehan, Phinney, Bass & Green,\nP.A. was on brief, for appellant.\n Jack K. Merrill, with whom KSR Law was on brief, for appellee.\n\n\n June 11, 2019\n\f BARRON, Circuit Judge. This appeal arises out of a\n\nbreach of contract suit between a national trade association of\n\ncredit professionals, National Association of Credit Management,\n\nInc. (\"NACM\"), and one of its regional affiliates, NACM-New\n\nEngland, Inc., which does business under the name Business Credit\n\nIntelligence (\"BCI\"). NACM appeals from the District Court's\n\nSeptember 24, 2018 order granting injunctive and declaratory\n\nrelief to BCI. We affirm in part, vacate in part, and remand in\n\npart the order of injunctive relief. We vacate and remand the\n\ndeclaratory judgment.\n\n I.\n\n The following facts were found by the District Court and\n\nare not in dispute on appeal. NACM is a national trade association\n\nof commercial credit professionals that provides services, such as\n\neducational programs and legislative advocacy, to a series of\n\nregional \"Affiliates.\" BCI is one of those Affiliates. Under the\n\ncontract at issue, it has exclusive rights to provide credit\n\nservices as a NACM Affiliate in the New England area.\n\n Affiliates have customers, called \"members,\" to whom\n\nthey provide \"core services.\" These include access to credit\n\ninformation, education on credit issues, and collection services.\n\nMembers of Affiliates are also members of NACM. NACM also provides\n\neducation and professional certification coursework to members.\n\n\n\n\n - 2 -\n\f Each Affiliate signs an identical contract with NACM.\n\nThis appeal arises out of NACM's termination of the 2011 version\n\nof this agreement (\"2011 Agreement\") between BCI and NACM.\n\n The 2011 Agreement provides, among other things, that\n\nNACM will provide services to Affiliates on certain terms and that\n\nNACM will not \"disclose the specific membership list, or portions\n\nthereof, of any Affiliate to any person or entity\" that provides\n\n\"core services.\" The 2011 Agreement permits either NACM or the\n\nAffiliate to terminate the agreement \"for cause upon 90 days\n\nwritten notice to the other.\"\n\n The 2011 Agreement was automatically renewed on October\n\n28, 2016. Thus, it would remain in effect until October 28, 2021\n\nif not terminated for \"cause.\" On May 12, 2017, however, NACM\n\nsent the Chief Operating Officers of the Affiliates (\"Affiliate\n\nCOOs\") a new agreement to be discussed at a meeting of the NACM\n\nBoard of Directors in June of 2017 and at a meeting of the Affiliate\n\nCOOs that same month.\n\n Following those meetings, on June 14, 2017, Jon Flora,\n\na member of the NACM Board, informed BCI that the NACM Board had\n\napproved a new Affiliate agreement. NACM circulated the new\n\nagreement to Affiliate COOs on July 13, 2017, and informed them\n\nthat the NACM Board had \"voted to simultaneously terminate all\n\nNACM Affiliated Association Agreements . . . and adopt the new\n\nNACM Affiliation Agreement . . . on August 18[, 2017] at 12 noon\n\n\n - 3 -\n\fET.\" Affiliates were required to return signed versions of the\n\nnew agreement by that time \"in order to maintain . . . Affiliate\n\nstatus.\" BCI was not happy with the new agreement's terms and\n\nrefused to sign, thus risking disaffiliation upon termination of\n\nthe 2011 Agreement.\n\n On August 21, 2017, NACM's President, Robin Schauseil,\n\nemailed BCI. She informed BCI that seventeen of the twenty-two\n\nAffiliates had signed the 2017 Agreement and thus that there was\n\n\"now a super majority of support for the 2017 Agreement.\" In that\n\nemail, Schauseil indicated that the 2011 Agreement would terminate\n\neffective November 17, 2017, pursuant to Article IV, Section 4.D\n\nof the 2011 Agreement. That section provides that the agreement\n\nmay be \"terminated . . . for cause upon 90 days written notice.\"\n\nSchauseil further explained that \"[d]uring the 90-day termination\n\nperiod, NACM will work towards ensuring that members . . . have\n\naccess to NACM products, services and benefits after November\n\n17th.\" In anticipation of the termination of the 2011 Agreement\n\nwith BCI, NACM awarded BCI's territory to NACM Connect, the\n\nAffiliate for the Chicago area.\n\n On November 8, 2017, BCI filed a complaint in\n\nMassachusetts state court against NACM. The complaint alleged,\n\namong other things, breach of contract. The case was removed a\n\nweek later to the United States District Court for the District of\n\n\n\n\n - 4 -\n\fMassachusetts on the basis of diversity jurisdiction. See 28\n\nU.S.C. § 1332.\n\n The same day that the case was removed, BCI filed an\n\nemergency motion for a preliminary injunction and a hearing on\n\nthat motion. BCI sought an injunction to require NACM to continue\n\nto abide by the terms of the 2011 Agreement, which it claimed that\n\nNACM had breached. NACM filed its opposition to that motion the\n\nfollowing day.\n\n On November 17, 2017 -- the date NACM intended to\n\nterminate the 2011 Agreement -- the District Court granted BCI's\n\nrequest for a preliminary injunction, after a hearing, and\n\nscheduled a \"hearing on BCI's request for permanent injunctive\n\nrelief\" for December 5, 2017. This hearing was continued multiple\n\ntimes and then canceled after NACM filed an answer. NACM's answer\n\nincluded a demand for a jury trial.\n\n A hearing was then set on the docket and was referred to\n\nas a \"preliminary injunction\" hearing in that docket entry. That\n\nhearing, in later docket entries, was referred to as a \"Hearing on\n\n[Docket Entry] 21 Motion for Order re: Prior Preliminary\n\nInjunction.\"\n\n BCI's \"Motion for Order re: Prior Preliminary\n\nInjunction\" asked the District Court to address what BCI argued\n\nwas NACM's failure to follow the terms of the preliminary\n\n\n\n\n - 5 -\n\finjunction. The hearing on that motion took place over four\n\ndays -- specifically, April 17-19, 2018, and May 8, 2018.\n\n On September 24, 2018, the District Court entered an\n\norder granting an injunction and a declaratory judgment to BCI.\n\nThat injunction, in relevant part, ordered that the 2011 Agreement\n\nremained in effect and required NACM to \"continue to honor all its\n\nobligations thereunder, including its obligation not to share\n\nBCI's membership list with any entity that provides core\n\nservices.\"1 The District Court declared, \"as a matter of law, that\n\nNACM did not properly terminate the 2011 Agreement and, therefore,\n\ndid not have 'cause' to terminate BCI's affiliation agreement on\n\nNovember 17, 2017.\" NACM timely appealed.\n\n II.\n\n We start with NACM's challenge to the District Court's\n\norder of injunctive relief. NACM contends that \"[t]he text of the\n\nactual Order indicates the District Court issued a permanent\n\ninjunction\" because \"there was no qualification [that the\n\ninjunction] was limited to the pendency of the litigation.\" From\n\nthat premise, NACM argues that the District Court committed legal\n\nerror by analyzing the case under the preliminary injunction\n\n\n\n 1\n The injunction does also prohibit NACM from \"interfering\nwith the business relationship between BCI\" and another entity\ncalled United TranzActions, LLC, but NACM does not attack that\nportion of the injunction. Accordingly, we need not address that\naspect of the injunction.\n\n\n - 6 -\n\fstandard, which requires only a showing of likelihood of success\n\non the merits rather than actual success. Compare eBay, Inc. v.\n\nMercExchange, L.L.C., 547 U.S. 388, 391 (2006) (setting forth the\n\nstandard for a permanent injunction), with Voice of the Arab World,\n\nInc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)\n\n(same for a preliminary injunction).\n\n Our review of a District Court's entry of an injunction\n\nis for abuse of discretion. Am. Bd. of Psychiatry & Neurology,\n\nInc. v. Johnson-Powell, 129 F.3d 1, 2-3 (1st Cir. 1997). But,\n\nhere, the question at issue necessarily turns on the proper\n\nconstruction of the District Court's order, which presents a\n\nquestion of law that we review de novo. See Highmark Inc. v.\n\nAllcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 (2014)\n\n(\"[D]ecisions on questions of law are reviewable de novo . . . .\"\n\n(internal quotation marks omitted)).\n\n The text of the order of injunctive relief explains that\n\nit is \"based on [the District Court]'s finding that NACM is\n\nrequired to continue to perform its obligations under the 2011\n\nagreement during the pendency of any dispute between the parties.\"\n\nThat temporal limitation is most naturally read to apply to the\n\nremainder of the order, as that language is immediately followed\n\nby \"[i]t is hereby ordered that . . .\" and the specific terms of\n\nthe order -- namely, that NACM must comply with the 2011 Agreement.\n\n\n\n\n - 7 -\n\f So understood, the application of the preliminary\n\ninjunction standard is less evidence of the District Court's error\n\nin selecting the proper standard for assessing whether to issue an\n\ninjunction than of the District Court's intention to issue only a\n\npreliminary injunction. We therefore conclude that the District\n\nCourt did not abuse its discretion in applying the preliminary\n\ninjunction standard, because the injunction that it issued was a\n\npreliminary injunction.\n\n NACM next contends that, even if the District Court\n\nissued a preliminary -- rather than a permanent -- injunction, the\n\nDistrict Court still erred. NACM contends that the District Court\n\ndid so by failing to find sufficient evidence of irreparable harm\n\nto support the injunction. See Winter v. Nat. Res. Def. Council,\n\nInc., 555 U.S. 7, 20 (2008) (holding that a party seeking a\n\npreliminary injunction \"must establish [1] that he is likely to\n\nsucceed on the merits, [2] that he is likely to suffer irreparable\n\nharm in the absence of preliminary relief, [3] that the balance of\n\nequities tips in his favor, and [4] that an injunction is in the\n\npublic interest\"). Our review of the District Court's irreparable\n\nharm finding is for abuse of discretion. See Johnson-Powell, 129\n\nF.3d at 2-3.\n\n The general rule in our Circuit is that \"traditional\n\neconomic damages can be remedied by compensatory awards, and thus\n\ndo not rise to the level of being irreparable.\" Vacquería Tres\n\n\n - 8 -\n\fMonjitas, Inc. v. Irizarry, 587 F.3d 464, 485 (1st Cir. 2009)\n\n(citing P.R. Hosp. Supply, Inc. v. Bos. Sci. Corp., 426 F.3d 503,\n\n507 (1st Cir. 2005)). Injunctive relief is permissible, however,\n\n\"where the potential economic loss is so great as to threaten the\n\nexistence of the movant's business.\" Id. (quoting Performance\n\nUnlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1382\n\n(6th Cir. 1995)).\n\n As an initial matter, NACM argues that the District\n\nCourt's analysis and explanation of the irreparable harm factor\n\nwas so deficient as to constitute an abuse of discretion. But,\n\nthe District Court, after hearing testimony from both parties,\n\nfound \"that BCI ha[d] demonstrated a serious risk of irreparable\n\nharm in the absence of an injunction.\" Moreover, the record shows\n\nthat the District Court, after hearing nearly four days of\n\ntestimony, concluded that \"[d]isclosure of [BCI's] membership list\n\nto NACM Connect would\" -- and thus not merely that such disclosure\n\ncould -- \"be devastating.\" (emphasis added). The District Court\n\nalso found that BCI faced a \"real threat of harm\" from the\n\ndisclosure, Matos ex rel. Matos v. Clinton Sch. Dist., 367 F.3d\n\n68, 73 (1st Cir. 2004), and the District Court did so after finding\n\nthat, upon NACM's disclosure of lists of BCI members that are\n\nprotected by the 2011 agreement to NACM Connect, BCI's competitor\n\nwould have \"all necessary information at its disposal to poach\n\nBCI's clients\"; that NACM Connect has previously taken customers\n\n\n - 9 -\n\faway from BCI; that BCI operates on a \"break even basis\"; and that\n\n\"a significant loss of members, . . . about 20%, could cause BCI\n\nto become insolvent\" following testimony from BCI that \"if we lost\n\n20% of our members, we will be out of business.\"\n\n Thus, at least with respect to the finding of irreparable\n\nharm that would flow from disclosure, we are able to discern what\n\nfactors were weighed and \"the [D]istrict [C]ourt's thought\n\nprocess[.]\" Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331,\n\n337 (1st Cir. 1997). We thus see no abuse of discretion based on\n\na failure to make the basis for the finding known.\n\n NACM also contends that the finding of irreparable harm\n\nwas based on nothing \"more than conjecture, surmise, or a party's\n\nunsubstantiated fears of what the future may have in store.\"\n\nCharlesbank Equity Fund II, Ltd. v. Blinds To Go, Inc., 370 F.3d\n\n151, 162 (1st Cir. 2004). But, our review is for abuse of\n\ndiscretion, and the supportable findings that the District Court\n\nmade concerning BCI's precarious financial state and the prospect\n\nof poaching that would follow from the violation of NACM's\n\nobligations with respect to disclosure suffice to refute this\n\nground of objection with respect to the finding of irreparable\n\nharm concerning disclosure.\n\n Insofar as NACM means to argue that the District Court's\n\nfinding of irreparable harm is not sustainable because the record\n\nshows that BCI's membership list is not \"confidential and\n\n\n - 10 -\n\fprotectable,\" we disagree. To support the contention, NACM points\n\nonly to the compilation of conference attendance lists that include\n\nmembers and non-members and to its own provision of BCI's\n\nmembership list to companies like UPS for purposes of member\n\ndiscounts. That evidence, however, does not concern the\n\ndisclosure of a complete membership list to a direct competitor in\n\na manner that facilitates poaching.\n\n NACM also contends that, absent a finding that NACM's\n\n\"bare-bones\" list of BCI's members constitutes \"the specific\n\nmembership list, or portions thereof, of any Affiliate\" within the\n\nmeaning of the 2011 Agreement, the District Court \"could not have\n\ndetermined BCI succeeded (or was likely to succeed) on the merits\n\nof its claim that NACM's provision of its own list to a replacement\n\nAffiliate violated the 2011 Agreement and should be enjoined.\"\n\nAnd, NACM contends, the District Court made no such finding.\n\n But, the District Court found that BCI was likely to\n\nsucceed on its breach of contract claim not because of any\n\ndisclosure that NACM had made prior to the termination of the 2011\n\nAgreement but because BCI was likely to succeed in showing that\n\nNACM breached that agreement by failing to terminate the agreement\n\n\"for cause.\" And, insofar as NACM believes the scope of the\n\ninjunction is unclear as to which lists it covers, we note that\n\nthe relevant portion of the District Court's injunction is, by its\n\nterms, coextensive with the 2011 Agreement's non-disclosure\n\n\n - 11 -\n\fprovision, which prohibits NACM from disclosing \"the specific\n\nmembership list, or portions thereof, of any affiliate.\" In any\n\nevent, NACM may seek -- as BCI rightly points out -- clarification\n\nfrom the District Court to the extent it is not clear as to the\n\nscope of the injunction concerning disclosure.\n\n There does remain NACM's challenge to the portion of the\n\nDistrict Court's injunction that orders that the 2011 Agreement\n\n\"remain in place\" and that NACM \"continue to honor all its\n\nobligations thereunder.\" NACM contends that the District Court\n\ndid not make the requisite finding that irreparable harm would\n\noccur if NACM were not required to honor its obligations -- other\n\nthan its obligation not to disclose certain membership\n\nlists -- under the 2011 Agreement. NACM argues that, for this\n\nreason, the injunction is overbroad.\n\n Here, we agree with NACM that the record shows -- as\n\nBCI's counsel candidly acknowledged at oral argument -- that the\n\nDistrict Court did not make any such finding of irreparable harm.\n\nThus, we conclude that the District Court abused its discretion\n\nwhen it ordered as part of the injunctive relief that the 2011\n\nAgreement \"remain in place and [that the parties must] continue to\n\noperate in accordance with its terms and NACM shall continue to\n\nhonor all its obligations thereunder.\" See Tamko Roofing Prods.,\n\nInc. v. Ideal Roofing Co., 282 F.3d 23, 40 (1st Cir. 2002)\n\n(\"[I]njunctive relief should be no more burdensome to the defendant\n\n\n - 12 -\n\fthan necessary to provide complete relief to plaintiffs and courts\n\nmust closely tailor injunctions to the harm that they address.\"\n\n(alteration in original)(internal quotation marks and citations\n\nomitted)). We therefore vacate and remand the portion of the\n\ninjunction that requires NACM to abide by any terms of the 2011\n\nAgreement other than those prohibiting disclosure of \"the specific\n\nmembership list, or portions thereof\" of BCI to any person or\n\nentity providing \"core services.\"\n\n III.\n\n We turn next to the various challenges that NACM makes\n\nto the declaratory relief that the District Court ordered. The\n\nDistrict Court entered a declaratory judgment in favor of BCI after\n\nfinding, \"as a matter of law, that NACM did not properly terminate\n\nthe 2011 Agreement and, therefore, did not have 'cause' to\n\nterminate BCI's affiliation agreement on November 17, 2017.\"\n\n NACM first challenges the District Court's \"cause\"\n\nruling by asserting that the record fails to support the District\n\nCourt's findings regarding the process that NACM used to replace\n\nthe 2011 Agreement. But, in doing so, NACM takes issue with the\n\nDistrict Court's credibility determinations and factual findings\n\nwithout supplying an adequate basis for us to reject them. See\n\nUnited States v. 15 Bosworth St., 236 F.3d 50, 53-54 (1st Cir.\n\n2001) (explaining the deferential standard of review of bench\n\ntrials).\n\n\n - 13 -\n\f Moreover, the District Court did not ultimately base its\n\nconclusion that NACM lacked \"cause\" to terminate the 2011 Agreement\n\non the findings that it made about the nature of the overall\n\nprocess that NACM used to attempt to replace that agreement with\n\na new one. Rather, the District Court based that conclusion on a\n\nmore particular finding: that NACM had failed to provide BCI with\n\nthe kind of notice of its intention to do so that the 2011 Agreement\n\nrequired NACM to provide. Yet, insofar as NACM takes on that\n\nfinding by the District Court, NACM merely sets forth a possible\n\nconstruction of a series of emails between NACM and BCI that the\n\nDistrict Court reasonably construed differently. See id. at 53.\n\n Separately, NACM does contend that the District Court\n\nerred in its ruling as to \"cause,\" because it evaluated whether\n\nNACM had \"cause\" to terminate the agreement without properly\n\napplying Maryland law, which, NACM contends, controls under the\n\n2011 Agreement's choice of law provision. In fact, NACM notes,\n\nthe District Court failed to cite to any Maryland law in reaching\n\nits conclusion that the termination was not for \"cause,\" as the\n\nDistrict Court cited only to Massachusetts cases that applied\n\nMassachusetts law.\n\n But, even if NACM were right to contend the District\n\nCourt did commit this \"legal error,\" we then would merely be\n\nrequired to vacate and remand the declaratory judgment so that\n\nfindings could be made by a proper factfinder under the proper\n\n\n - 14 -\n\flegal standard. Yet, NACM separately contends that the District\n\nCourt erred in entering the declaratory judgment because it did so\n\nwithout submitting BCI's breach of contract claim to a jury,\n\nthereby depriving NACM of its right under the Seventh Amendment of\n\nthe Federal Constitution to a have a jury make the requisite\n\nfactual findings. Accordingly, we may proceed straight to the\n\nSeventh Amendment issue, given that we agree with NACM on that\n\nscore.\n\n The Seventh Amendment provides:\n\n In Suits at common law, where the value\n in controversy shall exceed twenty\n dollars, the right of trial by jury shall\n be preserved, and no fact tried by a\n jury, shall be otherwise re-examined in\n any Court of the United States, than\n according to the rules of the common law.\n\nU.S. Const. amend. VII. An order of declaratory relief on a claim\n\nfor breach of contract is \"essentially legal [in] nature.\" Simler\n\nv. Conner, 372 U.S. 221, 223 (1963) (per curiam). Thus, by\n\nentering the declaratory judgment on the breach of contract claim\n\nwithout a jury trial, the District Court violated NACM's Seventh\n\nAmendment rights. Id. Moreover, NACM was prejudiced thereby,\n\nfor, as BCI's counsel acknowledged at oral argument, the District\n\nCourt did not itself find -- let alone supportably so -- that no\n\nreasonable jury could find for NACM on the breach of contract\n\nclaim. See Fed. R. Civ. P. 50(a)(1).\n\n\n\n\n - 15 -\n\f BCI does contend that \"NACM cannot now create a\n\nconstitutional issue by insinuating . . . that it didn't know the\n\nmerits of BCI's contract claim would be at issue in a permanent\n\ninjunction hearing that by definition focuses on those merits.\"\n\nBut, at oral argument, counsel for BCI, who was also counsel at\n\nthe hearing in question, conceded that BCI was not sure at the\n\nstart of that hearing whether it would be for a permanent or a\n\npreliminary injunction. And, NACM, at the start of that hearing,\n\ndid object to having a \"trial on the merits\" -- insofar as that\n\nwas the purpose of the hearing -- on the basis that it had demanded\n\na jury trial.2 Accordingly, pursuant to the Seventh Amendment, we\n\nvacate and remand the entry of the declaratory judgment on BCI's\n\nbreach of contract claim.\n\n IV.\n\n The September 24, 2018 order of the District Court\n\ngranting injunctive and declaratory relief to BCI is vacated in\n\npart and affirmed in part, and the matter is remanded for further\n\nproceedings consistent with this opinion. Each party shall bear\n\nits own costs.\n\n\n\n\n 2 NACM also contends that the entry of the declaratory\njudgment violated its procedural due process rights. But, we need\nnot reach this contention, as we vacate the entry of the\ndeclaratory judgment on Seventh Amendment grounds.\n\n\n - 16 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: NACM-NEW ENGLAND, INC., D/B/A Business Credit Intelligence, Plaintiff, Appellee, v. NATIONAL ASSOCIATION OF CREDIT MANAGEMENT, INC., Defendant, Appellant.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-11\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1960\\n\\n NACM-NEW ENGLAND, INC.,\\n d/b/a BUSINESS CREDIT INTELLIGENCE,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n NATIONAL ASSOCIATION OF CREDIT MANAGMENT, INC.,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Timothy S. Hillman, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Lipez, and Barron,\\n Circuit Judges.\\n\\n\\n Michael J. Lambert, with whom Sheehan, Phinney, Bass & Green,\\nP.A. was on brief, for appellant.\\n Jack K. Merrill, with whom KSR Law was on brief, for appellee.\\n\\n\\n June 11, 2019\\n\\f BARRON, Circuit Judge. This appeal arises out of a\\n\\nbreach of contract suit between a national trade association of\\n\\ncredit professionals, National Association of Credit Management,\\n\\nInc. (\\\"NACM\\\"), and one of its regional affiliates, NACM-New\\n\\nEngland, Inc., which does business under the name Business Credit\\n\\nIntelligence (\\\"BCI\\\"). NACM appeals from the District Court's\\n\\nSeptember 24, 2018 order granting injunctive and declaratory\\n\\nrelief to BCI. We affirm in part, vacate in part, and remand in\\n\\npart the order of injunctive relief. We vacate and remand the\\n\\ndeclaratory judgment.\\n\\n I.\\n\\n The following facts were found by the District Court and\\n\\nare not in dispute on appeal. NACM is a national trade association\\n\\nof commercial credit professionals that provides services, such as\\n\\neducational programs and legislative advocacy, to a series of\\n\\nregional \\\"Affiliates.\\\" BCI is one of those Affiliates. Under the\\n\\ncontract at issue, it has exclusive rights to provide credit\\n\\nservices as a NACM Affiliate in the New England area.\\n\\n Affiliates have customers, called \\\"members,\\\" to whom\\n\\nthey provide \\\"core services.\\\" These include access to credit\\n\\ninformation, education on credit issues, and collection services.\\n\\nMembers of Affiliates are also members of NACM. NACM also provides\\n\\neducation and professional certification coursework to members.\\n\\n\\n\\n\\n - 2 -\\n\\f Each Affiliate signs an identical contract with NACM.\\n\\nThis appeal arises out of NACM's termination of the 2011 version\\n\\nof this agreement (\\\"2011 Agreement\\\") between BCI and NACM.\\n\\n The 2011 Agreement provides, among other things, that\\n\\nNACM will provide services to Affiliates on certain terms and that\\n\\nNACM will not \\\"disclose the specific membership list, or portions\\n\\nthereof, of any Affiliate to any person or entity\\\" that provides\\n\\n\\\"core services.\\\" The 2011 Agreement permits either NACM or the\\n\\nAffiliate to terminate the agreement \\\"for cause upon 90 days\\n\\nwritten notice to the other.\\\"\\n\\n The 2011 Agreement was automatically renewed on October\\n\\n28, 2016. Thus, it would remain in effect until October 28, 2021\\n\\nif not terminated for \\\"cause.\\\" On May 12, 2017, however, NACM\\n\\nsent the Chief Operating Officers of the Affiliates (\\\"Affiliate\\n\\nCOOs\\\") a new agreement to be discussed at a meeting of the NACM\\n\\nBoard of Directors in June of 2017 and at a meeting of the Affiliate\\n\\nCOOs that same month.\\n\\n Following those meetings, on June 14, 2017, Jon Flora,\\n\\na member of the NACM Board, informed BCI that the NACM Board had\\n\\napproved a new Affiliate agreement. NACM circulated the new\\n\\nagreement to Affiliate COOs on July 13, 2017, and informed them\\n\\nthat the NACM Board had \\\"voted to simultaneously terminate all\\n\\nNACM Affiliated Association Agreements . . . and adopt the new\\n\\nNACM Affiliation Agreement . . . on August 18[, 2017] at 12 noon\\n\\n\\n - 3 -\\n\\fET.\\\" Affiliates were required to return signed versions of the\\n\\nnew agreement by that time \\\"in order to maintain . . . Affiliate\\n\\nstatus.\\\" BCI was not happy with the new agreement's terms and\\n\\nrefused to sign, thus risking disaffiliation upon termination of\\n\\nthe 2011 Agreement.\\n\\n On August 21, 2017, NACM's President, Robin Schauseil,\\n\\nemailed BCI. She informed BCI that seventeen of the twenty-two\\n\\nAffiliates had signed the 2017 Agreement and thus that there was\\n\\n\\\"now a super majority of support for the 2017 Agreement.\\\" In that\\n\\nemail, Schauseil indicated that the 2011 Agreement would terminate\\n\\neffective November 17, 2017, pursuant to Article IV, Section 4.D\\n\\nof the 2011 Agreement. That section provides that the agreement\\n\\nmay be \\\"terminated . . . for cause upon 90 days written notice.\\\"\\n\\nSchauseil further explained that \\\"[d]uring the 90-day termination\\n\\nperiod, NACM will work towards ensuring that members . . . have\\n\\naccess to NACM products, services and benefits after November\\n\\n17th.\\\" In anticipation of the termination of the 2011 Agreement\\n\\nwith BCI, NACM awarded BCI's territory to NACM Connect, the\\n\\nAffiliate for the Chicago area.\\n\\n On November 8, 2017, BCI filed a complaint in\\n\\nMassachusetts state court against NACM. The complaint alleged,\\n\\namong other things, breach of contract. The case was removed a\\n\\nweek later to the United States District Court for the District of\\n\\n\\n\\n\\n - 4 -\\n\\fMassachusetts on the basis of diversity jurisdiction. See 28\\n\\nU.S.C. § 1332.\\n\\n The same day that the case was removed, BCI filed an\\n\\nemergency motion for a preliminary injunction and a hearing on\\n\\nthat motion. BCI sought an injunction to require NACM to continue\\n\\nto abide by the terms of the 2011 Agreement, which it claimed that\\n\\nNACM had breached. NACM filed its opposition to that motion the\\n\\nfollowing day.\\n\\n On November 17, 2017 -- the date NACM intended to\\n\\nterminate the 2011 Agreement -- the District Court granted BCI's\\n\\nrequest for a preliminary injunction, after a hearing, and\\n\\nscheduled a \\\"hearing on BCI's request for permanent injunctive\\n\\nrelief\\\" for December 5, 2017. This hearing was continued multiple\\n\\ntimes and then canceled after NACM filed an answer. NACM's answer\\n\\nincluded a demand for a jury trial.\\n\\n A hearing was then set on the docket and was referred to\\n\\nas a \\\"preliminary injunction\\\" hearing in that docket entry. That\\n\\nhearing, in later docket entries, was referred to as a \\\"Hearing on\\n\\n[Docket Entry] 21 Motion for Order re: Prior Preliminary\\n\\nInjunction.\\\"\\n\\n BCI's \\\"Motion for Order re: Prior Preliminary\\n\\nInjunction\\\" asked the District Court to address what BCI argued\\n\\nwas NACM's failure to follow the terms of the preliminary\\n\\n\\n\\n\\n - 5 -\\n\\finjunction. The hearing on that motion took place over four\\n\\ndays -- specifically, April 17-19, 2018, and May 8, 2018.\\n\\n On September 24, 2018, the District Court entered an\\n\\norder granting an injunction and a declaratory judgment to BCI.\\n\\nThat injunction, in relevant part, ordered that the 2011 Agreement\\n\\nremained in effect and required NACM to \\\"continue to honor all its\\n\\nobligations thereunder, including its obligation not to share\\n\\nBCI's membership list with any entity that provides core\\n\\nservices.\\\"1 The District Court declared, \\\"as a matter of law, that\\n\\nNACM did not properly terminate the 2011 Agreement and, therefore,\\n\\ndid not have 'cause' to terminate BCI's affiliation agreement on\\n\\nNovember 17, 2017.\\\" NACM timely appealed.\\n\\n II.\\n\\n We start with NACM's challenge to the District Court's\\n\\norder of injunctive relief. NACM contends that \\\"[t]he text of the\\n\\nactual Order indicates the District Court issued a permanent\\n\\ninjunction\\\" because \\\"there was no qualification [that the\\n\\ninjunction] was limited to the pendency of the litigation.\\\" From\\n\\nthat premise, NACM argues that the District Court committed legal\\n\\nerror by analyzing the case under the preliminary injunction\\n\\n\\n\\n 1\\n The injunction does also prohibit NACM from \\\"interfering\\nwith the business relationship between BCI\\\" and another entity\\ncalled United TranzActions, LLC, but NACM does not attack that\\nportion of the injunction. Accordingly, we need not address that\\naspect of the injunction.\\n\\n\\n - 6 -\\n\\fstandard, which requires only a showing of likelihood of success\\n\\non the merits rather than actual success. Compare eBay, Inc. v.\\n\\nMercExchange, L.L.C., 547 U.S. 388, 391 (2006) (setting forth the\\n\\nstandard for a permanent injunction), with Voice of the Arab World,\\n\\nInc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)\\n\\n(same for a preliminary injunction).\\n\\n Our review of a District Court's entry of an injunction\\n\\nis for abuse of discretion. Am. Bd. of Psychiatry & Neurology,\\n\\nInc. v. Johnson-Powell, 129 F.3d 1, 2-3 (1st Cir. 1997). But,\\n\\nhere, the question at issue necessarily turns on the proper\\n\\nconstruction of the District Court's order, which presents a\\n\\nquestion of law that we review de novo. See Highmark Inc. v.\\n\\nAllcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 (2014)\\n\\n(\\\"[D]ecisions on questions of law are reviewable de novo . . . .\\\"\\n\\n(internal quotation marks omitted)).\\n\\n The text of the order of injunctive relief explains that\\n\\nit is \\\"based on [the District Court]'s finding that NACM is\\n\\nrequired to continue to perform its obligations under the 2011\\n\\nagreement during the pendency of any dispute between the parties.\\\"\\n\\nThat temporal limitation is most naturally read to apply to the\\n\\nremainder of the order, as that language is immediately followed\\n\\nby \\\"[i]t is hereby ordered that . . .\\\" and the specific terms of\\n\\nthe order -- namely, that NACM must comply with the 2011 Agreement.\\n\\n\\n\\n\\n - 7 -\\n\\f So understood, the application of the preliminary\\n\\ninjunction standard is less evidence of the District Court's error\\n\\nin selecting the proper standard for assessing whether to issue an\\n\\ninjunction than of the District Court's intention to issue only a\\n\\npreliminary injunction. We therefore conclude that the District\\n\\nCourt did not abuse its discretion in applying the preliminary\\n\\ninjunction standard, because the injunction that it issued was a\\n\\npreliminary injunction.\\n\\n NACM next contends that, even if the District Court\\n\\nissued a preliminary -- rather than a permanent -- injunction, the\\n\\nDistrict Court still erred. NACM contends that the District Court\\n\\ndid so by failing to find sufficient evidence of irreparable harm\\n\\nto support the injunction. See Winter v. Nat. Res. Def. Council,\\n\\nInc., 555 U.S. 7, 20 (2008) (holding that a party seeking a\\n\\npreliminary injunction \\\"must establish [1] that he is likely to\\n\\nsucceed on the merits, [2] that he is likely to suffer irreparable\\n\\nharm in the absence of preliminary relief, [3] that the balance of\\n\\nequities tips in his favor, and [4] that an injunction is in the\\n\\npublic interest\\\"). Our review of the District Court's irreparable\\n\\nharm finding is for abuse of discretion. See Johnson-Powell, 129\\n\\nF.3d at 2-3.\\n\\n The general rule in our Circuit is that \\\"traditional\\n\\neconomic damages can be remedied by compensatory awards, and thus\\n\\ndo not rise to the level of being irreparable.\\\" Vacquería Tres\\n\\n\\n - 8 -\\n\\fMonjitas, Inc. v. Irizarry, 587 F.3d 464, 485 (1st Cir. 2009)\\n\\n(citing P.R. Hosp. Supply, Inc. v. Bos. Sci. Corp., 426 F.3d 503,\\n\\n507 (1st Cir. 2005)). Injunctive relief is permissible, however,\\n\\n\\\"where the potential economic loss is so great as to threaten the\\n\\nexistence of the movant's business.\\\" Id. (quoting Performance\\n\\nUnlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1382\\n\\n(6th Cir. 1995)).\\n\\n As an initial matter, NACM argues that the District\\n\\nCourt's analysis and explanation of the irreparable harm factor\\n\\nwas so deficient as to constitute an abuse of discretion. But,\\n\\nthe District Court, after hearing testimony from both parties,\\n\\nfound \\\"that BCI ha[d] demonstrated a serious risk of irreparable\\n\\nharm in the absence of an injunction.\\\" Moreover, the record shows\\n\\nthat the District Court, after hearing nearly four days of\\n\\ntestimony, concluded that \\\"[d]isclosure of [BCI's] membership list\\n\\nto NACM Connect would\\\" -- and thus not merely that such disclosure\\n\\ncould -- \\\"be devastating.\\\" (emphasis added). The District Court\\n\\nalso found that BCI faced a \\\"real threat of harm\\\" from the\\n\\ndisclosure, Matos ex rel. Matos v. Clinton Sch. Dist., 367 F.3d\\n\\n68, 73 (1st Cir. 2004), and the District Court did so after finding\\n\\nthat, upon NACM's disclosure of lists of BCI members that are\\n\\nprotected by the 2011 agreement to NACM Connect, BCI's competitor\\n\\nwould have \\\"all necessary information at its disposal to poach\\n\\nBCI's clients\\\"; that NACM Connect has previously taken customers\\n\\n\\n - 9 -\\n\\faway from BCI; that BCI operates on a \\\"break even basis\\\"; and that\\n\\n\\\"a significant loss of members, . . . about 20%, could cause BCI\\n\\nto become insolvent\\\" following testimony from BCI that \\\"if we lost\\n\\n20% of our members, we will be out of business.\\\"\\n\\n Thus, at least with respect to the finding of irreparable\\n\\nharm that would flow from disclosure, we are able to discern what\\n\\nfactors were weighed and \\\"the [D]istrict [C]ourt's thought\\n\\nprocess[.]\\\" Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331,\\n\\n337 (1st Cir. 1997). We thus see no abuse of discretion based on\\n\\na failure to make the basis for the finding known.\\n\\n NACM also contends that the finding of irreparable harm\\n\\nwas based on nothing \\\"more than conjecture, surmise, or a party's\\n\\nunsubstantiated fears of what the future may have in store.\\\"\\n\\nCharlesbank Equity Fund II, Ltd. v. Blinds To Go, Inc., 370 F.3d\\n\\n151, 162 (1st Cir. 2004). But, our review is for abuse of\\n\\ndiscretion, and the supportable findings that the District Court\\n\\nmade concerning BCI's precarious financial state and the prospect\\n\\nof poaching that would follow from the violation of NACM's\\n\\nobligations with respect to disclosure suffice to refute this\\n\\nground of objection with respect to the finding of irreparable\\n\\nharm concerning disclosure.\\n\\n Insofar as NACM means to argue that the District Court's\\n\\nfinding of irreparable harm is not sustainable because the record\\n\\nshows that BCI's membership list is not \\\"confidential and\\n\\n\\n - 10 -\\n\\fprotectable,\\\" we disagree. To support the contention, NACM points\\n\\nonly to the compilation of conference attendance lists that include\\n\\nmembers and non-members and to its own provision of BCI's\\n\\nmembership list to companies like UPS for purposes of member\\n\\ndiscounts. That evidence, however, does not concern the\\n\\ndisclosure of a complete membership list to a direct competitor in\\n\\na manner that facilitates poaching.\\n\\n NACM also contends that, absent a finding that NACM's\\n\\n\\\"bare-bones\\\" list of BCI's members constitutes \\\"the specific\\n\\nmembership list, or portions thereof, of any Affiliate\\\" within the\\n\\nmeaning of the 2011 Agreement, the District Court \\\"could not have\\n\\ndetermined BCI succeeded (or was likely to succeed) on the merits\\n\\nof its claim that NACM's provision of its own list to a replacement\\n\\nAffiliate violated the 2011 Agreement and should be enjoined.\\\"\\n\\nAnd, NACM contends, the District Court made no such finding.\\n\\n But, the District Court found that BCI was likely to\\n\\nsucceed on its breach of contract claim not because of any\\n\\ndisclosure that NACM had made prior to the termination of the 2011\\n\\nAgreement but because BCI was likely to succeed in showing that\\n\\nNACM breached that agreement by failing to terminate the agreement\\n\\n\\\"for cause.\\\" And, insofar as NACM believes the scope of the\\n\\ninjunction is unclear as to which lists it covers, we note that\\n\\nthe relevant portion of the District Court's injunction is, by its\\n\\nterms, coextensive with the 2011 Agreement's non-disclosure\\n\\n\\n - 11 -\\n\\fprovision, which prohibits NACM from disclosing \\\"the specific\\n\\nmembership list, or portions thereof, of any affiliate.\\\" In any\\n\\nevent, NACM may seek -- as BCI rightly points out -- clarification\\n\\nfrom the District Court to the extent it is not clear as to the\\n\\nscope of the injunction concerning disclosure.\\n\\n There does remain NACM's challenge to the portion of the\\n\\nDistrict Court's injunction that orders that the 2011 Agreement\\n\\n\\\"remain in place\\\" and that NACM \\\"continue to honor all its\\n\\nobligations thereunder.\\\" NACM contends that the District Court\\n\\ndid not make the requisite finding that irreparable harm would\\n\\noccur if NACM were not required to honor its obligations -- other\\n\\nthan its obligation not to disclose certain membership\\n\\nlists -- under the 2011 Agreement. NACM argues that, for this\\n\\nreason, the injunction is overbroad.\\n\\n Here, we agree with NACM that the record shows -- as\\n\\nBCI's counsel candidly acknowledged at oral argument -- that the\\n\\nDistrict Court did not make any such finding of irreparable harm.\\n\\nThus, we conclude that the District Court abused its discretion\\n\\nwhen it ordered as part of the injunctive relief that the 2011\\n\\nAgreement \\\"remain in place and [that the parties must] continue to\\n\\noperate in accordance with its terms and NACM shall continue to\\n\\nhonor all its obligations thereunder.\\\" See Tamko Roofing Prods.,\\n\\nInc. v. Ideal Roofing Co., 282 F.3d 23, 40 (1st Cir. 2002)\\n\\n(\\\"[I]njunctive relief should be no more burdensome to the defendant\\n\\n\\n - 12 -\\n\\fthan necessary to provide complete relief to plaintiffs and courts\\n\\nmust closely tailor injunctions to the harm that they address.\\\"\\n\\n(alteration in original)(internal quotation marks and citations\\n\\nomitted)). We therefore vacate and remand the portion of the\\n\\ninjunction that requires NACM to abide by any terms of the 2011\\n\\nAgreement other than those prohibiting disclosure of \\\"the specific\\n\\nmembership list, or portions thereof\\\" of BCI to any person or\\n\\nentity providing \\\"core services.\\\"\\n\\n III.\\n\\n We turn next to the various challenges that NACM makes\\n\\nto the declaratory relief that the District Court ordered. The\\n\\nDistrict Court entered a declaratory judgment in favor of BCI after\\n\\nfinding, \\\"as a matter of law, that NACM did not properly terminate\\n\\nthe 2011 Agreement and, therefore, did not have 'cause' to\\n\\nterminate BCI's affiliation agreement on November 17, 2017.\\\"\\n\\n NACM first challenges the District Court's \\\"cause\\\"\\n\\nruling by asserting that the record fails to support the District\\n\\nCourt's findings regarding the process that NACM used to replace\\n\\nthe 2011 Agreement. But, in doing so, NACM takes issue with the\\n\\nDistrict Court's credibility determinations and factual findings\\n\\nwithout supplying an adequate basis for us to reject them. See\\n\\nUnited States v. 15 Bosworth St., 236 F.3d 50, 53-54 (1st Cir.\\n\\n2001) (explaining the deferential standard of review of bench\\n\\ntrials).\\n\\n\\n - 13 -\\n\\f Moreover, the District Court did not ultimately base its\\n\\nconclusion that NACM lacked \\\"cause\\\" to terminate the 2011 Agreement\\n\\non the findings that it made about the nature of the overall\\n\\nprocess that NACM used to attempt to replace that agreement with\\n\\na new one. Rather, the District Court based that conclusion on a\\n\\nmore particular finding: that NACM had failed to provide BCI with\\n\\nthe kind of notice of its intention to do so that the 2011 Agreement\\n\\nrequired NACM to provide. Yet, insofar as NACM takes on that\\n\\nfinding by the District Court, NACM merely sets forth a possible\\n\\nconstruction of a series of emails between NACM and BCI that the\\n\\nDistrict Court reasonably construed differently. See id. at 53.\\n\\n Separately, NACM does contend that the District Court\\n\\nerred in its ruling as to \\\"cause,\\\" because it evaluated whether\\n\\nNACM had \\\"cause\\\" to terminate the agreement without properly\\n\\napplying Maryland law, which, NACM contends, controls under the\\n\\n2011 Agreement's choice of law provision. In fact, NACM notes,\\n\\nthe District Court failed to cite to any Maryland law in reaching\\n\\nits conclusion that the termination was not for \\\"cause,\\\" as the\\n\\nDistrict Court cited only to Massachusetts cases that applied\\n\\nMassachusetts law.\\n\\n But, even if NACM were right to contend the District\\n\\nCourt did commit this \\\"legal error,\\\" we then would merely be\\n\\nrequired to vacate and remand the declaratory judgment so that\\n\\nfindings could be made by a proper factfinder under the proper\\n\\n\\n - 14 -\\n\\flegal standard. Yet, NACM separately contends that the District\\n\\nCourt erred in entering the declaratory judgment because it did so\\n\\nwithout submitting BCI's breach of contract claim to a jury,\\n\\nthereby depriving NACM of its right under the Seventh Amendment of\\n\\nthe Federal Constitution to a have a jury make the requisite\\n\\nfactual findings. Accordingly, we may proceed straight to the\\n\\nSeventh Amendment issue, given that we agree with NACM on that\\n\\nscore.\\n\\n The Seventh Amendment provides:\\n\\n In Suits at common law, where the value\\n in controversy shall exceed twenty\\n dollars, the right of trial by jury shall\\n be preserved, and no fact tried by a\\n jury, shall be otherwise re-examined in\\n any Court of the United States, than\\n according to the rules of the common law.\\n\\nU.S. Const. amend. VII. An order of declaratory relief on a claim\\n\\nfor breach of contract is \\\"essentially legal [in] nature.\\\" Simler\\n\\nv. Conner, 372 U.S. 221, 223 (1963) (per curiam). Thus, by\\n\\nentering the declaratory judgment on the breach of contract claim\\n\\nwithout a jury trial, the District Court violated NACM's Seventh\\n\\nAmendment rights. Id. Moreover, NACM was prejudiced thereby,\\n\\nfor, as BCI's counsel acknowledged at oral argument, the District\\n\\nCourt did not itself find -- let alone supportably so -- that no\\n\\nreasonable jury could find for NACM on the breach of contract\\n\\nclaim. See Fed. R. Civ. P. 50(a)(1).\\n\\n\\n\\n\\n - 15 -\\n\\f BCI does contend that \\\"NACM cannot now create a\\n\\nconstitutional issue by insinuating . . . that it didn't know the\\n\\nmerits of BCI's contract claim would be at issue in a permanent\\n\\ninjunction hearing that by definition focuses on those merits.\\\"\\n\\nBut, at oral argument, counsel for BCI, who was also counsel at\\n\\nthe hearing in question, conceded that BCI was not sure at the\\n\\nstart of that hearing whether it would be for a permanent or a\\n\\npreliminary injunction. And, NACM, at the start of that hearing,\\n\\ndid object to having a \\\"trial on the merits\\\" -- insofar as that\\n\\nwas the purpose of the hearing -- on the basis that it had demanded\\n\\na jury trial.2 Accordingly, pursuant to the Seventh Amendment, we\\n\\nvacate and remand the entry of the declaratory judgment on BCI's\\n\\nbreach of contract claim.\\n\\n IV.\\n\\n The September 24, 2018 order of the District Court\\n\\ngranting injunctive and declaratory relief to BCI is vacated in\\n\\npart and affirmed in part, and the matter is remanded for further\\n\\nproceedings consistent with this opinion. Each party shall bear\\n\\nits own costs.\\n\\n\\n\\n\\n 2 NACM also contends that the entry of the declaratory\\njudgment violated its procedural due process rights. But, we need\\nnot reach this contention, as we vacate the entry of the\\ndeclaratory judgment on Seventh Amendment grounds.\\n\\n\\n - 16 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2369,"cells":{"id":{"kind":"number","value":4628396,"string":"4,628,396"},"name":{"kind":"string","value":"Norma EZELL, Leonard Whitley, and Erica Biddings, on Behalf of Themselves and Others Similarly Situated, Plaintiffs, Appellants, v. LEXINGTON INSURANCE COMPANY; American International Group, Inc.; AIG Assurance Company ; AIG Insurance Company; AIG Property Casualty Company ; AIG Specialty Insurance Company; American General Life Insurance Company; National Union Fire Insurance Company of Pittsburg, PA.; AGC Life Insurance Company; American General Annuity Service Corporation; AIG Claims, Inc., F/K/A AIG Domestic Claims, Inc., Defendants, Appellees."},"name_abbreviation":{"kind":"string","value":"Ezell v. Lexington Insurance Company"},"decision_date":{"kind":"string","value":"2019-06-11"},"docket_number":{"kind":"string","value":"18-2064P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Souter, Kayatta\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\nNo. 18-2064\\n\\n NORMA EZELL, LEONARD WHITLEY, and ERICA BIDDINGS,\\n on behalf of themselves and others similarly situated,\\n\\n Plaintiffs, Appellants,\\n\\n v.\\n\\nLEXINGTON INSURANCE COMPANY; AMERICAN INTERNATIONAL GROUP, INC.;\\n AIG ASSURANCE COMPANY; AIG INSURANCE COMPANY; AIG PROPERTY\\n CASUALTY COMPANY; AIG SPECIALTY INSURANCE COMPANY; AMERICAN\\n GENERAL LIFE INSURANCE COMPANY; NATIONAL UNION FIRE INSURANCE\\n COMPANY OF PITTSBURG, PA.; AGC LIFE INSURANCE COMPANY; AMERICAN\\nGENERAL ANNUITY SERVICE CORPORATION; AIG CLAIMS, INC., f/k/a AIG\\n Domestic Claims, Inc.,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n [Hon. Nathaniel M. Gorton, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Circuit Judge,\\n Souter, Associate Justice,\\n and Kayatta, Circuit Judge.\\n\\n\\n Craig R. Spiegel, with whom Steve W. Berman was on briefs,\\nfor appellants.\\n Adam H. Offenhartz, with whom James L. Hallowell, Nancy E.\\nHart, Peter M. Wade, William T. Hogan III, and Nolan J. Mitchell\\nwere on brief, for appellees.\\n\\n\\n \\n Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\fJune 11, 2019\\n\\n\\n\\n\\n - 2 -\\n\\f SOUTER, Associate Justice. Appellants Norma Ezell,\\n\\nLeonard Whitley, and Erica Biddings entered into structured\\n\\nsettlement agreements with Lexington Insurance Company. By the\\n\\nterms of their settlements, appellants agreed not to pursue their\\n\\nwrongful death and personal injury claims against parties insured\\n\\nby Lexington. In exchange, Lexington agreed that appellants would\\n\\nreceive specific periodic payments from annuities that Lexington\\n\\nwould purchase. Years after these agreements took effect,\\n\\nappellants accused Lexington and other affiliated insurers of\\n\\nmisrepresenting the amount appellants would receive from the\\n\\nsettlements. Appellants brought this putative class action in\\n\\nfederal court, alleging that Lexington and other insurers made\\n\\nfraudulent misrepresentations to appellants, actionable at common\\n\\nlaw, and engaged in a scheme to defraud appellants in violation of\\n\\nthe Racketeer Influenced and Corrupt Organizations Act, or RICO,\\n\\n18 U.S.C. §§ 1961 et seq. Appellants now challenge the District\\n\\nCourt's dismissal of their claims as raised for a second time under\\n\\nan amended complaint. We affirm.\\n\\n We begin with the language of the relevant settlement\\n\\ndocuments that are part of the record on appeal. One settlement\\n\\nagreement applied to Ezell and Whitley; the other, to Biddings.\\n\\nUnder each, Lexington would purchase annuities from various life\\n\\ninsurance companies, and the proceeds from the annuities would be\\n\\nremitted to appellants in periodic installments. As to Ezell and\\n\\n\\n - 3 -\\n\\fWhitley, a preliminary memorandum provided that $200,000 would be\\n\\n\\\"annuitized\\\" by Lexington for the purpose of financing periodic\\n\\npayments, Ezell Settlement Memorandum ¶ 2, while a formal agreement\\n\\nindicated the exact amount Ezell and Whitley would receive each\\n\\nmonth, Ezell Settlement Agreement ¶ 2.2. As to Biddings, a formal\\n\\nagreement indicated that the \\\"total present value\\\" of the periodic\\n\\npayments would be $1,642,000, and it also specified the exact\\n\\namount she would receive each month. Biddings Settlement\\n\\nAgreement ¶ 2.2.\\n\\n Appellants respectively allege that they did not receive\\n\\nthe promised amounts ($200,000 to be \\\"annuitized\\\" for Ezell and\\n\\nWhitley, and $1,642,000 in \\\"total present value\\\" for Biddings)\\n\\nbecause the life insurers that sold the annuities to Lexington\\n\\ndiverted four percent of those amounts to pay commissions to the\\n\\nbrokers who arranged the transactions with Lexington. Since these\\n\\ncommissions were not disclosed in the settlement agreements or\\n\\notherwise, appellants contend that the insurers fraudulently\\n\\nmisrepresented the amount appellants would receive from the\\n\\nsettlements. This allegation is the basis for appellants' common-\\n\\nlaw fraud and RICO claims.\\n\\n The problem for appellants is that the settlement\\n\\ndocuments, fairly read, did not promise that Ezell and Whitley\\n\\nwould receive $200,000, or that Biddings would receive $1,642,000.\\n\\nRather, they promised only that $200,000 would be \\\"annuitized\\\" for\\n\\n\\n - 4 -\\n\\fEzell and Whitley, and that the \\\"total present value\\\" of the\\n\\nperiodic payments to Biddings would be $1,642,000. The amount\\n\\n\\\"annuitized\\\" to produce a periodic payment stream plausibly refers\\n\\nto the amount of money spent to purchase that payment stream, not\\n\\nthe amount a beneficiary receives from it. See American Heritage\\n\\nDictionary of Business Terms 19 (2009) (defining \\\"annuitize\\\" as\\n\\n\\\"[t]o convert a sum of money into a series of payments\\\").\\n\\nSimilarly, the \\\"total present value\\\" of a payment stream plausibly\\n\\nrefers to its cost, not to the amount a beneficiary receives. See\\n\\nBlack's Law Dictionary 43 (10th ed. 2014) (defining \\\"actuarial\\n\\npresent value\\\" as the \\\"amount of money necessary to purchase an\\n\\nannuity that would generate a particular monthly payment, or\\n\\nwhatever periodic payment the plan provides . . .\\\").\\n\\n Here, there is no dispute that Lexington paid $200,000\\n\\nto purchase the annuities for Ezell and Whitley, and $1,642,000\\n\\nfor the annuities for Biddings.1 Although the life insurers that\\n\\nsold the annuities to Lexington then allegedly used four percent\\n\\nof these sums to pay commissions to brokers, appellants conceded\\n\\nin their complaint that it is \\\"[i]ndustrywide\\\" practice for brokers\\n\\n\\n 1\\n This is not, therefore, a case in which Lexington as the\\nsettling insurer incurred an obligation to disclose a fact\\nnecessary to correct what would be a falsity in some representation\\nin the absence of further disclosure. Cf. Macomber v. Travelers\\nProp. & Cas. Corp., 804 A.2d 180, 186-187 (Conn. 2002) (reversing\\nthe dismissal of a complaint that the settling insurer\\nmisrepresented the purchase price of an annuity by failing to\\ndisclose a rebate from the broker).\\n\\n\\n - 5 -\\n\\fto be paid \\\"a standard sales commission of four percent (4%) of\\n\\nthe annuity's cost,\\\" Amended Complaint ¶ 31, and that the\\n\\ncommission would be paid by the annuity issuer, id. ¶¶ 35, 99(b),\\n\\n100(b), 120(b), 121(b).2 Assuming that these allegations are true,\\n\\nas we must at the motion-to-dismiss stage, Bell Atlantic Corp. v.\\n\\nTwombly, 550 U.S. 544, 555 (2007), the four-percent commission\\n\\npayment would have been paid by the life insurance companies that\\n\\nsold the annuities, and would have been accounted for as a standard\\n\\nelement of the cost of doing business by the life insurance\\n\\ncompanies and reflected in the market prices that Lexington paid.\\n\\nThe commission, in other words, was included in the price of a\\n\\ngiven annuity in the marketplace, and the appellants have provided\\n\\nno basis to infer that liability insurers in Lexington's position\\n\\nwere under any obligation to inform a settlement party of the items\\n\\nof overhead that it was the annuity industry's continuing practice\\n\\nto account for in pricing their products. Because the words\\n\\n\\\"annuitized\\\" and \\\"total present value\\\" simply committed Lexington\\n\\nto pay the amounts stated as necessary to produce the periodic\\n\\n\\n\\n 2Despite this allegation, at several points the complaint\\ncontains the arguably contradictory claim that Lexington's parent\\ncompany retained the four percent, see Amended Complaint ¶¶ 50,\\n57, 65, but without specifying that it did so in the transactions\\nwith Ezell, Whitley, or Biddings. To the extent this unspecified\\nclaim contradicts the other allegations in the record, it fails\\nunder the pleading standards of Federal Rule of Civil Procedure\\n9(b), which requires the plaintiff to \\\"state with particularity\\nthe circumstances constituting fraud.\\\"\\n\\n\\n - 6 -\\n\\fpayments specified in the agreements, the annuity companies'\\n\\npayment of brokers' commissions from out of the money Lexington\\n\\npaid for the annuities does not belie the facts that Lexington\\n\\npaid the amounts it quoted and that appellants received exactly\\n\\nthose specific annuity payments the agreements had promised,\\n\\npayments that the appellants have not alleged that they failed to\\n\\nreceive.\\n\\n Moreover, even if there were ambiguities in the terms\\n\\n\\\"annuitized\\\" or \\\"total present value,\\\" the specific schedules of\\n\\nperiodic payments set out in the respective settlement agreements\\n\\nwould cure them, for those agreements listed the precise amount\\n\\nappellants could expect to receive each month throughout a stated\\n\\nperiod. In so doing, the agreements concretely defined what\\n\\n$200,000 \\\"annuitized\\\" and $1,642,000 in \\\"total present value\\\"\\n\\nmeant in terms of annuity benefits to be paid to appellants.\\n\\nBecause there is no dispute that appellants did receive the\\n\\nperiodic payment amounts they were promised in agreements\\n\\ncontaining no uncorrected misrepresentations, there is no\\n\\nallegation in the pleadings that appellants suffered the kind of\\n\\nharm necessary to make out a case of the statutory or common-law\\n\\nviolations claimed.\\n\\n In short, appellants have failed to \\\"state with\\n\\nparticularity the circumstances constituting fraud.\\\" Fed. R. Civ.\\n\\nP. 9(b). Under Rule 9(b), appellants must state \\\"the who, what,\\n\\n\\n - 7 -\\n\\fwhere, and when of the allegedly [misleading] representation\\\" with\\n\\nparticularity. Kaufman v. CVS Caremark Corp., 836 F.3d 88, 91\\n\\n(1st Cir. 2016) (quoting Alt. Sys. Concepts, Inc. v. Synopsys,\\n\\nInc., 374 F.3d 23, 29 (1st Cir. 2004)). Here, however, the basic\\n\\nproblem with appellants' complaint is not that they failed to state\\n\\nsome facts \\\"with particularity.\\\" Fed. R. Civ. P. 9(b). Rather,\\n\\nit is that the facts they have pleaded \\\"with particularity\\\" on the\\n\\nmatters discussed here demonstrate the absence of any\\n\\n\\\"circumstances constituting fraud.\\\" Id. Accordingly, we affirm\\n\\nthe District Court's decision dismissing the amended complaint\\n\\nwith prejudice.\\n\\n\\n\\nSo ordered.\\n\\n\\n\\n\\n - 8 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405649/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"SOUTER"},"judge3":{"kind":"string","value":"KAYATTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4628396/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Norma EZELL, Leonard Whitley, and Erica Biddings, on Behalf of Themselves and Others Similarly Situated, Plaintiffs, Appellants, v. LEXINGTON INSURANCE COMPANY; American International Group, Inc.; AIG Assurance Company ; AIG Insurance Company; AIG Property Casualty Company ; AIG Specialty Insurance Company; American General Life Insurance Company; National Union Fire Insurance Company of Pittsburg, PA.; AGC Life Insurance Company; American General Annuity Service Corporation; AIG Claims, Inc., F/K/A AIG Domestic Claims, Inc., Defendants, Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 18-2064\n\n NORMA EZELL, LEONARD WHITLEY, and ERICA BIDDINGS,\n on behalf of themselves and others similarly situated,\n\n Plaintiffs, Appellants,\n\n v.\n\nLEXINGTON INSURANCE COMPANY; AMERICAN INTERNATIONAL GROUP, INC.;\n AIG ASSURANCE COMPANY; AIG INSURANCE COMPANY; AIG PROPERTY\n CASUALTY COMPANY; AIG SPECIALTY INSURANCE COMPANY; AMERICAN\n GENERAL LIFE INSURANCE COMPANY; NATIONAL UNION FIRE INSURANCE\n COMPANY OF PITTSBURG, PA.; AGC LIFE INSURANCE COMPANY; AMERICAN\nGENERAL ANNUITY SERVICE CORPORATION; AIG CLAIMS, INC., f/k/a AIG\n Domestic Claims, Inc.,\n\n Defendants, Appellees.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n [Hon. Nathaniel M. Gorton, U.S. District Judge]\n\n\n Before\n\n Lynch, Circuit Judge,\n Souter, Associate Justice,\n and Kayatta, Circuit Judge.\n\n\n Craig R. Spiegel, with whom Steve W. Berman was on briefs,\nfor appellants.\n Adam H. Offenhartz, with whom James L. Hallowell, Nancy E.\nHart, Peter M. Wade, William T. Hogan III, and Nolan J. Mitchell\nwere on brief, for appellees.\n\n\n \n Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\fJune 11, 2019\n\n\n\n\n - 2 -\n\f SOUTER, Associate Justice. Appellants Norma Ezell,\n\nLeonard Whitley, and Erica Biddings entered into structured\n\nsettlement agreements with Lexington Insurance Company. By the\n\nterms of their settlements, appellants agreed not to pursue their\n\nwrongful death and personal injury claims against parties insured\n\nby Lexington. In exchange, Lexington agreed that appellants would\n\nreceive specific periodic payments from annuities that Lexington\n\nwould purchase. Years after these agreements took effect,\n\nappellants accused Lexington and other affiliated insurers of\n\nmisrepresenting the amount appellants would receive from the\n\nsettlements. Appellants brought this putative class action in\n\nfederal court, alleging that Lexington and other insurers made\n\nfraudulent misrepresentations to appellants, actionable at common\n\nlaw, and engaged in a scheme to defraud appellants in violation of\n\nthe Racketeer Influenced and Corrupt Organizations Act, or RICO,\n\n18 U.S.C. §§ 1961 et seq. Appellants now challenge the District\n\nCourt's dismissal of their claims as raised for a second time under\n\nan amended complaint. We affirm.\n\n We begin with the language of the relevant settlement\n\ndocuments that are part of the record on appeal. One settlement\n\nagreement applied to Ezell and Whitley; the other, to Biddings.\n\nUnder each, Lexington would purchase annuities from various life\n\ninsurance companies, and the proceeds from the annuities would be\n\nremitted to appellants in periodic installments. As to Ezell and\n\n\n - 3 -\n\fWhitley, a preliminary memorandum provided that $200,000 would be\n\n\"annuitized\" by Lexington for the purpose of financing periodic\n\npayments, Ezell Settlement Memorandum ¶ 2, while a formal agreement\n\nindicated the exact amount Ezell and Whitley would receive each\n\nmonth, Ezell Settlement Agreement ¶ 2.2. As to Biddings, a formal\n\nagreement indicated that the \"total present value\" of the periodic\n\npayments would be $1,642,000, and it also specified the exact\n\namount she would receive each month. Biddings Settlement\n\nAgreement ¶ 2.2.\n\n Appellants respectively allege that they did not receive\n\nthe promised amounts ($200,000 to be \"annuitized\" for Ezell and\n\nWhitley, and $1,642,000 in \"total present value\" for Biddings)\n\nbecause the life insurers that sold the annuities to Lexington\n\ndiverted four percent of those amounts to pay commissions to the\n\nbrokers who arranged the transactions with Lexington. Since these\n\ncommissions were not disclosed in the settlement agreements or\n\notherwise, appellants contend that the insurers fraudulently\n\nmisrepresented the amount appellants would receive from the\n\nsettlements. This allegation is the basis for appellants' common-\n\nlaw fraud and RICO claims.\n\n The problem for appellants is that the settlement\n\ndocuments, fairly read, did not promise that Ezell and Whitley\n\nwould receive $200,000, or that Biddings would receive $1,642,000.\n\nRather, they promised only that $200,000 would be \"annuitized\" for\n\n\n - 4 -\n\fEzell and Whitley, and that the \"total present value\" of the\n\nperiodic payments to Biddings would be $1,642,000. The amount\n\n\"annuitized\" to produce a periodic payment stream plausibly refers\n\nto the amount of money spent to purchase that payment stream, not\n\nthe amount a beneficiary receives from it. See American Heritage\n\nDictionary of Business Terms 19 (2009) (defining \"annuitize\" as\n\n\"[t]o convert a sum of money into a series of payments\").\n\nSimilarly, the \"total present value\" of a payment stream plausibly\n\nrefers to its cost, not to the amount a beneficiary receives. See\n\nBlack's Law Dictionary 43 (10th ed. 2014) (defining \"actuarial\n\npresent value\" as the \"amount of money necessary to purchase an\n\nannuity that would generate a particular monthly payment, or\n\nwhatever periodic payment the plan provides . . .\").\n\n Here, there is no dispute that Lexington paid $200,000\n\nto purchase the annuities for Ezell and Whitley, and $1,642,000\n\nfor the annuities for Biddings.1 Although the life insurers that\n\nsold the annuities to Lexington then allegedly used four percent\n\nof these sums to pay commissions to brokers, appellants conceded\n\nin their complaint that it is \"[i]ndustrywide\" practice for brokers\n\n\n 1\n This is not, therefore, a case in which Lexington as the\nsettling insurer incurred an obligation to disclose a fact\nnecessary to correct what would be a falsity in some representation\nin the absence of further disclosure. Cf. Macomber v. Travelers\nProp. & Cas. Corp., 804 A.2d 180, 186-187 (Conn. 2002) (reversing\nthe dismissal of a complaint that the settling insurer\nmisrepresented the purchase price of an annuity by failing to\ndisclose a rebate from the broker).\n\n\n - 5 -\n\fto be paid \"a standard sales commission of four percent (4%) of\n\nthe annuity's cost,\" Amended Complaint ¶ 31, and that the\n\ncommission would be paid by the annuity issuer, id. ¶¶ 35, 99(b),\n\n100(b), 120(b), 121(b).2 Assuming that these allegations are true,\n\nas we must at the motion-to-dismiss stage, Bell Atlantic Corp. v.\n\nTwombly, 550 U.S. 544, 555 (2007), the four-percent commission\n\npayment would have been paid by the life insurance companies that\n\nsold the annuities, and would have been accounted for as a standard\n\nelement of the cost of doing business by the life insurance\n\ncompanies and reflected in the market prices that Lexington paid.\n\nThe commission, in other words, was included in the price of a\n\ngiven annuity in the marketplace, and the appellants have provided\n\nno basis to infer that liability insurers in Lexington's position\n\nwere under any obligation to inform a settlement party of the items\n\nof overhead that it was the annuity industry's continuing practice\n\nto account for in pricing their products. Because the words\n\n\"annuitized\" and \"total present value\" simply committed Lexington\n\nto pay the amounts stated as necessary to produce the periodic\n\n\n\n 2Despite this allegation, at several points the complaint\ncontains the arguably contradictory claim that Lexington's parent\ncompany retained the four percent, see Amended Complaint ¶¶ 50,\n57, 65, but without specifying that it did so in the transactions\nwith Ezell, Whitley, or Biddings. To the extent this unspecified\nclaim contradicts the other allegations in the record, it fails\nunder the pleading standards of Federal Rule of Civil Procedure\n9(b), which requires the plaintiff to \"state with particularity\nthe circumstances constituting fraud.\"\n\n\n - 6 -\n\fpayments specified in the agreements, the annuity companies'\n\npayment of brokers' commissions from out of the money Lexington\n\npaid for the annuities does not belie the facts that Lexington\n\npaid the amounts it quoted and that appellants received exactly\n\nthose specific annuity payments the agreements had promised,\n\npayments that the appellants have not alleged that they failed to\n\nreceive.\n\n Moreover, even if there were ambiguities in the terms\n\n\"annuitized\" or \"total present value,\" the specific schedules of\n\nperiodic payments set out in the respective settlement agreements\n\nwould cure them, for those agreements listed the precise amount\n\nappellants could expect to receive each month throughout a stated\n\nperiod. In so doing, the agreements concretely defined what\n\n$200,000 \"annuitized\" and $1,642,000 in \"total present value\"\n\nmeant in terms of annuity benefits to be paid to appellants.\n\nBecause there is no dispute that appellants did receive the\n\nperiodic payment amounts they were promised in agreements\n\ncontaining no uncorrected misrepresentations, there is no\n\nallegation in the pleadings that appellants suffered the kind of\n\nharm necessary to make out a case of the statutory or common-law\n\nviolations claimed.\n\n In short, appellants have failed to \"state with\n\nparticularity the circumstances constituting fraud.\" Fed. R. Civ.\n\nP. 9(b). Under Rule 9(b), appellants must state \"the who, what,\n\n\n - 7 -\n\fwhere, and when of the allegedly [misleading] representation\" with\n\nparticularity. Kaufman v. CVS Caremark Corp., 836 F.3d 88, 91\n\n(1st Cir. 2016) (quoting Alt. Sys. Concepts, Inc. v. Synopsys,\n\nInc., 374 F.3d 23, 29 (1st Cir. 2004)). Here, however, the basic\n\nproblem with appellants' complaint is not that they failed to state\n\nsome facts \"with particularity.\" Fed. R. Civ. P. 9(b). Rather,\n\nit is that the facts they have pleaded \"with particularity\" on the\n\nmatters discussed here demonstrate the absence of any\n\n\"circumstances constituting fraud.\" Id. Accordingly, we affirm\n\nthe District Court's decision dismissing the amended complaint\n\nwith prejudice.\n\n\n\nSo ordered.\n\n\n\n\n - 8 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Norma EZELL, Leonard Whitley, and Erica Biddings, on Behalf of Themselves and Others Similarly Situated, Plaintiffs, Appellants, v. LEXINGTON INSURANCE COMPANY; American International Group, Inc.; AIG Assurance Company ; AIG Insurance Company; AIG Property Casualty Company ; AIG Specialty Insurance Company; American General Life Insurance Company; National Union Fire Insurance Company of Pittsburg, PA.; AGC Life Insurance Company; American General Annuity Service Corporation; AIG Claims, Inc., F/K/A AIG Domestic Claims, Inc., Defendants, Appellees.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-11\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\nNo. 18-2064\\n\\n NORMA EZELL, LEONARD WHITLEY, and ERICA BIDDINGS,\\n on behalf of themselves and others similarly situated,\\n\\n Plaintiffs, Appellants,\\n\\n v.\\n\\nLEXINGTON INSURANCE COMPANY; AMERICAN INTERNATIONAL GROUP, INC.;\\n AIG ASSURANCE COMPANY; AIG INSURANCE COMPANY; AIG PROPERTY\\n CASUALTY COMPANY; AIG SPECIALTY INSURANCE COMPANY; AMERICAN\\n GENERAL LIFE INSURANCE COMPANY; NATIONAL UNION FIRE INSURANCE\\n COMPANY OF PITTSBURG, PA.; AGC LIFE INSURANCE COMPANY; AMERICAN\\nGENERAL ANNUITY SERVICE CORPORATION; AIG CLAIMS, INC., f/k/a AIG\\n Domestic Claims, Inc.,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n [Hon. Nathaniel M. Gorton, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Circuit Judge,\\n Souter, Associate Justice,\\n and Kayatta, Circuit Judge.\\n\\n\\n Craig R. Spiegel, with whom Steve W. Berman was on briefs,\\nfor appellants.\\n Adam H. Offenhartz, with whom James L. Hallowell, Nancy E.\\nHart, Peter M. Wade, William T. Hogan III, and Nolan J. Mitchell\\nwere on brief, for appellees.\\n\\n\\n \\n Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\fJune 11, 2019\\n\\n\\n\\n\\n - 2 -\\n\\f SOUTER, Associate Justice. Appellants Norma Ezell,\\n\\nLeonard Whitley, and Erica Biddings entered into structured\\n\\nsettlement agreements with Lexington Insurance Company. By the\\n\\nterms of their settlements, appellants agreed not to pursue their\\n\\nwrongful death and personal injury claims against parties insured\\n\\nby Lexington. In exchange, Lexington agreed that appellants would\\n\\nreceive specific periodic payments from annuities that Lexington\\n\\nwould purchase. Years after these agreements took effect,\\n\\nappellants accused Lexington and other affiliated insurers of\\n\\nmisrepresenting the amount appellants would receive from the\\n\\nsettlements. Appellants brought this putative class action in\\n\\nfederal court, alleging that Lexington and other insurers made\\n\\nfraudulent misrepresentations to appellants, actionable at common\\n\\nlaw, and engaged in a scheme to defraud appellants in violation of\\n\\nthe Racketeer Influenced and Corrupt Organizations Act, or RICO,\\n\\n18 U.S.C. §§ 1961 et seq. Appellants now challenge the District\\n\\nCourt's dismissal of their claims as raised for a second time under\\n\\nan amended complaint. We affirm.\\n\\n We begin with the language of the relevant settlement\\n\\ndocuments that are part of the record on appeal. One settlement\\n\\nagreement applied to Ezell and Whitley; the other, to Biddings.\\n\\nUnder each, Lexington would purchase annuities from various life\\n\\ninsurance companies, and the proceeds from the annuities would be\\n\\nremitted to appellants in periodic installments. As to Ezell and\\n\\n\\n - 3 -\\n\\fWhitley, a preliminary memorandum provided that $200,000 would be\\n\\n\\\"annuitized\\\" by Lexington for the purpose of financing periodic\\n\\npayments, Ezell Settlement Memorandum ¶ 2, while a formal agreement\\n\\nindicated the exact amount Ezell and Whitley would receive each\\n\\nmonth, Ezell Settlement Agreement ¶ 2.2. As to Biddings, a formal\\n\\nagreement indicated that the \\\"total present value\\\" of the periodic\\n\\npayments would be $1,642,000, and it also specified the exact\\n\\namount she would receive each month. Biddings Settlement\\n\\nAgreement ¶ 2.2.\\n\\n Appellants respectively allege that they did not receive\\n\\nthe promised amounts ($200,000 to be \\\"annuitized\\\" for Ezell and\\n\\nWhitley, and $1,642,000 in \\\"total present value\\\" for Biddings)\\n\\nbecause the life insurers that sold the annuities to Lexington\\n\\ndiverted four percent of those amounts to pay commissions to the\\n\\nbrokers who arranged the transactions with Lexington. Since these\\n\\ncommissions were not disclosed in the settlement agreements or\\n\\notherwise, appellants contend that the insurers fraudulently\\n\\nmisrepresented the amount appellants would receive from the\\n\\nsettlements. This allegation is the basis for appellants' common-\\n\\nlaw fraud and RICO claims.\\n\\n The problem for appellants is that the settlement\\n\\ndocuments, fairly read, did not promise that Ezell and Whitley\\n\\nwould receive $200,000, or that Biddings would receive $1,642,000.\\n\\nRather, they promised only that $200,000 would be \\\"annuitized\\\" for\\n\\n\\n - 4 -\\n\\fEzell and Whitley, and that the \\\"total present value\\\" of the\\n\\nperiodic payments to Biddings would be $1,642,000. The amount\\n\\n\\\"annuitized\\\" to produce a periodic payment stream plausibly refers\\n\\nto the amount of money spent to purchase that payment stream, not\\n\\nthe amount a beneficiary receives from it. See American Heritage\\n\\nDictionary of Business Terms 19 (2009) (defining \\\"annuitize\\\" as\\n\\n\\\"[t]o convert a sum of money into a series of payments\\\").\\n\\nSimilarly, the \\\"total present value\\\" of a payment stream plausibly\\n\\nrefers to its cost, not to the amount a beneficiary receives. See\\n\\nBlack's Law Dictionary 43 (10th ed. 2014) (defining \\\"actuarial\\n\\npresent value\\\" as the \\\"amount of money necessary to purchase an\\n\\nannuity that would generate a particular monthly payment, or\\n\\nwhatever periodic payment the plan provides . . .\\\").\\n\\n Here, there is no dispute that Lexington paid $200,000\\n\\nto purchase the annuities for Ezell and Whitley, and $1,642,000\\n\\nfor the annuities for Biddings.1 Although the life insurers that\\n\\nsold the annuities to Lexington then allegedly used four percent\\n\\nof these sums to pay commissions to brokers, appellants conceded\\n\\nin their complaint that it is \\\"[i]ndustrywide\\\" practice for brokers\\n\\n\\n 1\\n This is not, therefore, a case in which Lexington as the\\nsettling insurer incurred an obligation to disclose a fact\\nnecessary to correct what would be a falsity in some representation\\nin the absence of further disclosure. Cf. Macomber v. Travelers\\nProp. & Cas. Corp., 804 A.2d 180, 186-187 (Conn. 2002) (reversing\\nthe dismissal of a complaint that the settling insurer\\nmisrepresented the purchase price of an annuity by failing to\\ndisclose a rebate from the broker).\\n\\n\\n - 5 -\\n\\fto be paid \\\"a standard sales commission of four percent (4%) of\\n\\nthe annuity's cost,\\\" Amended Complaint ¶ 31, and that the\\n\\ncommission would be paid by the annuity issuer, id. ¶¶ 35, 99(b),\\n\\n100(b), 120(b), 121(b).2 Assuming that these allegations are true,\\n\\nas we must at the motion-to-dismiss stage, Bell Atlantic Corp. v.\\n\\nTwombly, 550 U.S. 544, 555 (2007), the four-percent commission\\n\\npayment would have been paid by the life insurance companies that\\n\\nsold the annuities, and would have been accounted for as a standard\\n\\nelement of the cost of doing business by the life insurance\\n\\ncompanies and reflected in the market prices that Lexington paid.\\n\\nThe commission, in other words, was included in the price of a\\n\\ngiven annuity in the marketplace, and the appellants have provided\\n\\nno basis to infer that liability insurers in Lexington's position\\n\\nwere under any obligation to inform a settlement party of the items\\n\\nof overhead that it was the annuity industry's continuing practice\\n\\nto account for in pricing their products. Because the words\\n\\n\\\"annuitized\\\" and \\\"total present value\\\" simply committed Lexington\\n\\nto pay the amounts stated as necessary to produce the periodic\\n\\n\\n\\n 2Despite this allegation, at several points the complaint\\ncontains the arguably contradictory claim that Lexington's parent\\ncompany retained the four percent, see Amended Complaint ¶¶ 50,\\n57, 65, but without specifying that it did so in the transactions\\nwith Ezell, Whitley, or Biddings. To the extent this unspecified\\nclaim contradicts the other allegations in the record, it fails\\nunder the pleading standards of Federal Rule of Civil Procedure\\n9(b), which requires the plaintiff to \\\"state with particularity\\nthe circumstances constituting fraud.\\\"\\n\\n\\n - 6 -\\n\\fpayments specified in the agreements, the annuity companies'\\n\\npayment of brokers' commissions from out of the money Lexington\\n\\npaid for the annuities does not belie the facts that Lexington\\n\\npaid the amounts it quoted and that appellants received exactly\\n\\nthose specific annuity payments the agreements had promised,\\n\\npayments that the appellants have not alleged that they failed to\\n\\nreceive.\\n\\n Moreover, even if there were ambiguities in the terms\\n\\n\\\"annuitized\\\" or \\\"total present value,\\\" the specific schedules of\\n\\nperiodic payments set out in the respective settlement agreements\\n\\nwould cure them, for those agreements listed the precise amount\\n\\nappellants could expect to receive each month throughout a stated\\n\\nperiod. In so doing, the agreements concretely defined what\\n\\n$200,000 \\\"annuitized\\\" and $1,642,000 in \\\"total present value\\\"\\n\\nmeant in terms of annuity benefits to be paid to appellants.\\n\\nBecause there is no dispute that appellants did receive the\\n\\nperiodic payment amounts they were promised in agreements\\n\\ncontaining no uncorrected misrepresentations, there is no\\n\\nallegation in the pleadings that appellants suffered the kind of\\n\\nharm necessary to make out a case of the statutory or common-law\\n\\nviolations claimed.\\n\\n In short, appellants have failed to \\\"state with\\n\\nparticularity the circumstances constituting fraud.\\\" Fed. R. Civ.\\n\\nP. 9(b). Under Rule 9(b), appellants must state \\\"the who, what,\\n\\n\\n - 7 -\\n\\fwhere, and when of the allegedly [misleading] representation\\\" with\\n\\nparticularity. Kaufman v. CVS Caremark Corp., 836 F.3d 88, 91\\n\\n(1st Cir. 2016) (quoting Alt. Sys. Concepts, Inc. v. Synopsys,\\n\\nInc., 374 F.3d 23, 29 (1st Cir. 2004)). Here, however, the basic\\n\\nproblem with appellants' complaint is not that they failed to state\\n\\nsome facts \\\"with particularity.\\\" Fed. R. Civ. P. 9(b). Rather,\\n\\nit is that the facts they have pleaded \\\"with particularity\\\" on the\\n\\nmatters discussed here demonstrate the absence of any\\n\\n\\\"circumstances constituting fraud.\\\" Id. Accordingly, we affirm\\n\\nthe District Court's decision dismissing the amended complaint\\n\\nwith prejudice.\\n\\n\\n\\nSo ordered.\\n\\n\\n\\n\\n - 8 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2370,"cells":{"id":{"kind":"number","value":4628863,"string":"4,628,863"},"name":{"kind":"string","value":"Jaime RODRIGUEZ-PALACIOS, Petitioner, v. William P. BARR, United States Attorney General, Respondent."},"name_abbreviation":{"kind":"string","value":"Rodriguez-Palacios v. Barr"},"decision_date":{"kind":"string","value":"2019-06-12"},"docket_number":{"kind":"string","value":"18-1430P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Kayatta, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARRON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1430\\n\\n JAIME RODRIGUEZ-PALACIOS,\\n\\n Petitioner,\\n\\n v.\\n\\n WILLIAM P. BARR,\\n UNITED STATES ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n PETITION FOR REVIEW OF AN ORDER OF THE\\n BOARD OF IMMIGRATION APPEALS\\n\\n\\n Before\\n\\n Lynch, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Melanie Chaput and Chaput Law Office on brief for petitioner.\\n Genevieve Kelly, Trial Attorney, Office of Immigration\\nLitigation, U.S. Department of Justice, Joseph H. Hunt, Assistant\\nAttorney General, Civil Division, U.S. Department of Justice, and\\nCindy S. Ferrier, Assistant Director, Office of Immigration\\nLitigation, U.S. Department of Justice, on brief for respondent.\\n\\n\\n\\n June 12, 2019\\n\\f BARRON, Circuit Judge. Jaime Rodriguez-Palacios\\n\\n(\\\"Rodriguez\\\"), a Mexican citizen, petitions for review of the Board\\n\\nof Immigration Appeals's (\\\"BIA\\\") order, which upheld the\\n\\nImmigration Judge's (\\\"IJ\\\") denial of his applications for asylum,\\n\\nwithholding of removal, and protection under the Convention\\n\\nAgainst Torture (\\\"CAT\\\"). We dismiss in part and deny in part the\\n\\npetition for review.\\n\\n I.\\n\\n Rodriguez was born in Mexico and entered the United\\n\\nStates without inspection in February 2007. The Department of\\n\\nHomeland Security (\\\"DHS\\\") commenced removal proceedings against\\n\\nRodriguez on July 3, 2012, by filing a Notice to Appear with the\\n\\nImmigration Court that charged him with being removable from the\\n\\nUnited States under 8 U.S.C. § 1182(a)(6)(A)(i).1 Thereafter, in\\n\\nNovember 2012, Rodriguez filed an application for asylum,\\n\\nwithholding of removal, and protection under the CAT.\\n\\n\\n\\n\\n 1 Rodriguez notes that the Notice to Appear failed to\\ndesignate a date or time for the future hearing, stating only that\\nhe was required to appear at a date and time \\\"to be set.\\\" Citing\\nPereira v. Sessions, 138 S. Ct. 2105 (2018), Rodriguez contends\\nthat his Notice to Appear is now considered statutorily deficient,\\nrendering him eligible for Cancellation of Removal for\\nNonpermanent Residents. However, he does not offer any arguments\\nto us in reliance on Pereira, but rather notes that he has filed\\na motion before the BIA to remand the matter to the IJ. Therefore,\\nwe do not address that issue in this opinion.\\n\\n\\n - 2 -\\n\\f At a hearing before the IJ on May 3, 2017, Rodriguez\\n\\ntestified as follows. He was born and raised in Colima, Mexico,\\n\\nwhere his parents and siblings still resided. Four years before\\n\\nhe entered the United States, someone unsuccessfully tried to hit\\n\\nhim with a bottle at a party. After the attempted assault,\\n\\nRodriguez ran away with his friends and, afraid of retaliation,\\n\\nnever reported the incident to the police, though his friends told\\n\\nhim that the perpetrator belonged to a gang. Before he left for\\n\\nthe United States, he worked at a shipyard. Neither he nor his\\n\\nco-workers had any problems there. He left Mexico with the\\n\\nassistance of a coyote \\\"[b]ecause [he] was looking for the future,\\n\\nand because of the violence that's in Mexico.\\\"\\n\\n Rodriguez further testified that his family had no\\n\\nproblems in Mexico even after he left, though his brother worked\\n\\nfor the Mexican military and kept to himself out of fear.\\n\\nRodriguez also mentioned that, about a month before his hearing\\n\\nbefore the IJ, a friend of his was murdered by gang members at a\\n\\nlocation that was about fifteen to twenty minutes from his\\n\\nhometown, perhaps because his friend used drugs. Rodriguez\\n\\ntestified that he feared returning to Mexico because he or his\\n\\nchildren could be targeted by kidnappers or extortionists who would\\n\\nassume that he had money because he was returning from the United\\n\\nStates. Finally, Rodriguez noted that he did not apply for asylum\\n\\nin 2007 because circumstances were better in Mexico at that time.\\n\\n\\n - 3 -\\n\\fHe stated that \\\"[a]bout nine or 10 years [ago] is when things\\n\\nstarted to change. And they're worse and worse with the\\n\\nkidnappings and murders and the cartels.\\\"\\n\\n After reviewing this testimony, along with news articles\\n\\nand country reports that Rodriquez submitted, the IJ denied\\n\\nRodriguez's applications for asylum, withholding of removal, and\\n\\ndeferral of removal under the CAT, but granted his request for\\n\\nvoluntary departure. Rodriguez filed a Notice of Appeal to the\\n\\nBIA, which upheld the IJ's factual findings and dismissed the\\n\\nappeal. We now consider Rodriguez's timely petition for review of\\n\\nthe BIA's ruling.\\n\\n II.\\n\\n Where, as here, \\\"the BIA wrote separately while also\\n\\napproving the IJ's decision, our review is directed at both of\\n\\nthose decisions.\\\" Ahmed v. Holder, 765 F.3d 96, 99 (1st Cir.\\n\\n2014). We examine legal conclusions de novo and factual findings\\n\\nunder the substantial evidence standard, \\\"accepting the agency's\\n\\nfactfinding unless the evidence 'would compel a reasonable\\n\\nfactfinder to reach a contrary conclusion.'\\\" Guaman-Loja v.\\n\\nHolder, 707 F.3d 119, 122 (1st Cir. 2013) (quoting Seng v. Holder,\\n\\n584 F.3d 13, 17 (1st Cir. 2009)).\\n\\n A.\\n\\n A petitioner seeking asylum must \\\"demonstrate[] by clear\\n\\nand convincing evidence\\\" that his asylum application was filed\\n\\n\\n - 4 -\\n\\fwithin one year of his arrival in the United States. 8 U.S.C.\\n\\n§ 1158(a)(2)(B). A failure to meet this one-year filing deadline\\n\\nmay be excused if \\\"the alien demonstrates to the satisfaction of\\n\\nthe Attorney General either the existence of changed circumstances\\n\\nwhich materially affect the applicant's eligibility for asylum or\\n\\nextraordinary circumstances relating to the delay in filing an\\n\\napplication.\\\" Id. § 1158(a)(2)(D).\\n\\n Rodriguez did not file his asylum application within one\\n\\nyear of entering the United States. Moreover, he acknowledges\\n\\nthat \\\"we have no jurisdiction to review the Attorney General's\\n\\ndetermination that an asylum application is untimely and unexcused\\n\\nby circumstances.\\\" Usman v. Holder, 566 F.3d 262, 267 (1st Cir.\\n\\n2009) (internal alteration omitted) (quoting Lutaaya v. Mukasey,\\n\\n535 F.3d 63, 69 (1st Cir. 2008)) (citing 8 U.S.C. § 1158(a)(3)\\n\\n(providing that \\\"[n]o court shall have jurisdiction to review any\\n\\ndetermination of the Attorney General\\\" on an asylum seeker's\\n\\ncompliance with the one-year time limit)).\\n\\n Nevertheless, Rodriguez contends that we may review his\\n\\nchallenge pursuant to 8 U.S.C. § 1252(a)(2)(D), which states that\\n\\n\\\"[n]othing in . . . this chapter . . . which limits or eliminates\\n\\njudicial review, shall be construed as precluding review of\\n\\nconstitutional claims or questions of law raised upon a petition\\n\\nfor review.\\\" In order for this exception to the jurisdictional\\n\\nbar to apply, \\\"the putative constitutional or legal challenge must\\n\\n\\n - 5 -\\n\\fbe more than a disguised challenge to factual findings.\\\" Usman,\\n\\n566 F.3d at 267 (quoting Pan v. Gonzales, 489 F.3d 80, 84 (1st\\n\\nCir. 2007)).\\n\\n Rodriguez styles his challenge to the BIA's timeliness\\n\\nruling as one that targets the legal standard that the BIA applied.\\n\\nIn fact, however, his challenge takes issue with the evidentiary\\n\\nbasis for the BIA's finding that \\\"circumstances\\\" did not excuse\\n\\nhis untimely application for asylum. Therefore, we do not have\\n\\njurisdiction to review his petition for review of the BIA's ruling\\n\\non his asylum claim. See Oroh v. Holder, 561 F.3d 62, 66–67 (1st\\n\\nCir. 2009).\\n\\n B.\\n\\n Rodriguez also sought withholding of removal and\\n\\nprotection under the CAT. These forms of relief require the\\n\\npetitioner to prove that it is \\\"more likely than not\\\" that he\\n\\nhimself would face persecution or torture if he returned to his\\n\\nhome country. Usman, 566 F.3d at 268 (quoting Guillaume v.\\n\\nGonzales, 504 F.3d 68, 71 n.2 (1st Cir. 2007)). There is no\\n\\njurisdictional bar to our review of the BIA's rulings as to these\\n\\nclaims. Nevertheless, we reject his challenges to the BIA's\\n\\nrulings as to each.\\n\\n With respect to his challenge to the BIA's ruling\\n\\naffirming the IJ's denial of his request for withholding of\\n\\nremoval, Rodriguez waived it by failing to develop it in his\\n\\n\\n - 6 -\\n\\fopening brief. See, e.g., United States v. Zannino, 895 F.2d 1,\\n\\n17 (1st Cir. 1990) (\\\"[I]ssues adverted to in a perfunctory manner,\\n\\nunaccompanied by some effort at developed argumentation, are\\n\\ndeemed waived.\\\"). That leaves, then, only Rodriguez's challenge\\n\\nto the BIA's affirmance of the IJ's denial of his CAT claim on the\\n\\nground that \\\"there is no evidence in the record that the respondent\\n\\nwould be singled out for torture with the consent or acquiescence\\n\\nof a public official.\\\" (Emphasis added).\\n\\n The IJ specifically found that Rodriguez was not\\n\\ntortured in the past, that his family has not been tortured in\\n\\nMexico, and that, although one of his friends was killed, Rodriguez\\n\\nhad not provided any evidence with respect to that crime to show\\n\\nthe motivation of the killers. As Rodriquez fails to identify any\\n\\nevidence to suggest that substantial evidence fails to support the\\n\\nBIA's affirmance of the IJ's finding that he himself is not likely\\n\\nto be tortured, he provides us with no basis for overturning the\\n\\nBIA's ruling on his CAT claim.\\n\\n III.\\n\\n The petition for review is dismissed in part and denied\\n\\nin part.\\n\\n\\n\\n\\n - 7 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4406116/\", \"author_raw\": \"BARRON, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"KAYATTA"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4628863/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jaime RODRIGUEZ-PALACIOS, Petitioner, v. William P. BARR, United States Attorney General, Respondent.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-12\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1430\n\n JAIME RODRIGUEZ-PALACIOS,\n\n Petitioner,\n\n v.\n\n WILLIAM P. BARR,\n UNITED STATES ATTORNEY GENERAL,\n\n Respondent.\n\n\n PETITION FOR REVIEW OF AN ORDER OF THE\n BOARD OF IMMIGRATION APPEALS\n\n\n Before\n\n Lynch, Kayatta, and Barron,\n Circuit Judges.\n\n\n Melanie Chaput and Chaput Law Office on brief for petitioner.\n Genevieve Kelly, Trial Attorney, Office of Immigration\nLitigation, U.S. Department of Justice, Joseph H. Hunt, Assistant\nAttorney General, Civil Division, U.S. Department of Justice, and\nCindy S. Ferrier, Assistant Director, Office of Immigration\nLitigation, U.S. Department of Justice, on brief for respondent.\n\n\n\n June 12, 2019\n\f BARRON, Circuit Judge. Jaime Rodriguez-Palacios\n\n(\"Rodriguez\"), a Mexican citizen, petitions for review of the Board\n\nof Immigration Appeals's (\"BIA\") order, which upheld the\n\nImmigration Judge's (\"IJ\") denial of his applications for asylum,\n\nwithholding of removal, and protection under the Convention\n\nAgainst Torture (\"CAT\"). We dismiss in part and deny in part the\n\npetition for review.\n\n I.\n\n Rodriguez was born in Mexico and entered the United\n\nStates without inspection in February 2007. The Department of\n\nHomeland Security (\"DHS\") commenced removal proceedings against\n\nRodriguez on July 3, 2012, by filing a Notice to Appear with the\n\nImmigration Court that charged him with being removable from the\n\nUnited States under 8 U.S.C. § 1182(a)(6)(A)(i).1 Thereafter, in\n\nNovember 2012, Rodriguez filed an application for asylum,\n\nwithholding of removal, and protection under the CAT.\n\n\n\n\n 1 Rodriguez notes that the Notice to Appear failed to\ndesignate a date or time for the future hearing, stating only that\nhe was required to appear at a date and time \"to be set.\" Citing\nPereira v. Sessions, 138 S. Ct. 2105 (2018), Rodriguez contends\nthat his Notice to Appear is now considered statutorily deficient,\nrendering him eligible for Cancellation of Removal for\nNonpermanent Residents. However, he does not offer any arguments\nto us in reliance on Pereira, but rather notes that he has filed\na motion before the BIA to remand the matter to the IJ. Therefore,\nwe do not address that issue in this opinion.\n\n\n - 2 -\n\f At a hearing before the IJ on May 3, 2017, Rodriguez\n\ntestified as follows. He was born and raised in Colima, Mexico,\n\nwhere his parents and siblings still resided. Four years before\n\nhe entered the United States, someone unsuccessfully tried to hit\n\nhim with a bottle at a party. After the attempted assault,\n\nRodriguez ran away with his friends and, afraid of retaliation,\n\nnever reported the incident to the police, though his friends told\n\nhim that the perpetrator belonged to a gang. Before he left for\n\nthe United States, he worked at a shipyard. Neither he nor his\n\nco-workers had any problems there. He left Mexico with the\n\nassistance of a coyote \"[b]ecause [he] was looking for the future,\n\nand because of the violence that's in Mexico.\"\n\n Rodriguez further testified that his family had no\n\nproblems in Mexico even after he left, though his brother worked\n\nfor the Mexican military and kept to himself out of fear.\n\nRodriguez also mentioned that, about a month before his hearing\n\nbefore the IJ, a friend of his was murdered by gang members at a\n\nlocation that was about fifteen to twenty minutes from his\n\nhometown, perhaps because his friend used drugs. Rodriguez\n\ntestified that he feared returning to Mexico because he or his\n\nchildren could be targeted by kidnappers or extortionists who would\n\nassume that he had money because he was returning from the United\n\nStates. Finally, Rodriguez noted that he did not apply for asylum\n\nin 2007 because circumstances were better in Mexico at that time.\n\n\n - 3 -\n\fHe stated that \"[a]bout nine or 10 years [ago] is when things\n\nstarted to change. And they're worse and worse with the\n\nkidnappings and murders and the cartels.\"\n\n After reviewing this testimony, along with news articles\n\nand country reports that Rodriquez submitted, the IJ denied\n\nRodriguez's applications for asylum, withholding of removal, and\n\ndeferral of removal under the CAT, but granted his request for\n\nvoluntary departure. Rodriguez filed a Notice of Appeal to the\n\nBIA, which upheld the IJ's factual findings and dismissed the\n\nappeal. We now consider Rodriguez's timely petition for review of\n\nthe BIA's ruling.\n\n II.\n\n Where, as here, \"the BIA wrote separately while also\n\napproving the IJ's decision, our review is directed at both of\n\nthose decisions.\" Ahmed v. Holder, 765 F.3d 96, 99 (1st Cir.\n\n2014). We examine legal conclusions de novo and factual findings\n\nunder the substantial evidence standard, \"accepting the agency's\n\nfactfinding unless the evidence 'would compel a reasonable\n\nfactfinder to reach a contrary conclusion.'\" Guaman-Loja v.\n\nHolder, 707 F.3d 119, 122 (1st Cir. 2013) (quoting Seng v. Holder,\n\n584 F.3d 13, 17 (1st Cir. 2009)).\n\n A.\n\n A petitioner seeking asylum must \"demonstrate[] by clear\n\nand convincing evidence\" that his asylum application was filed\n\n\n - 4 -\n\fwithin one year of his arrival in the United States. 8 U.S.C.\n\n§ 1158(a)(2)(B). A failure to meet this one-year filing deadline\n\nmay be excused if \"the alien demonstrates to the satisfaction of\n\nthe Attorney General either the existence of changed circumstances\n\nwhich materially affect the applicant's eligibility for asylum or\n\nextraordinary circumstances relating to the delay in filing an\n\napplication.\" Id. § 1158(a)(2)(D).\n\n Rodriguez did not file his asylum application within one\n\nyear of entering the United States. Moreover, he acknowledges\n\nthat \"we have no jurisdiction to review the Attorney General's\n\ndetermination that an asylum application is untimely and unexcused\n\nby circumstances.\" Usman v. Holder, 566 F.3d 262, 267 (1st Cir.\n\n2009) (internal alteration omitted) (quoting Lutaaya v. Mukasey,\n\n535 F.3d 63, 69 (1st Cir. 2008)) (citing 8 U.S.C. § 1158(a)(3)\n\n(providing that \"[n]o court shall have jurisdiction to review any\n\ndetermination of the Attorney General\" on an asylum seeker's\n\ncompliance with the one-year time limit)).\n\n Nevertheless, Rodriguez contends that we may review his\n\nchallenge pursuant to 8 U.S.C. § 1252(a)(2)(D), which states that\n\n\"[n]othing in . . . this chapter . . . which limits or eliminates\n\njudicial review, shall be construed as precluding review of\n\nconstitutional claims or questions of law raised upon a petition\n\nfor review.\" In order for this exception to the jurisdictional\n\nbar to apply, \"the putative constitutional or legal challenge must\n\n\n - 5 -\n\fbe more than a disguised challenge to factual findings.\" Usman,\n\n566 F.3d at 267 (quoting Pan v. Gonzales, 489 F.3d 80, 84 (1st\n\nCir. 2007)).\n\n Rodriguez styles his challenge to the BIA's timeliness\n\nruling as one that targets the legal standard that the BIA applied.\n\nIn fact, however, his challenge takes issue with the evidentiary\n\nbasis for the BIA's finding that \"circumstances\" did not excuse\n\nhis untimely application for asylum. Therefore, we do not have\n\njurisdiction to review his petition for review of the BIA's ruling\n\non his asylum claim. See Oroh v. Holder, 561 F.3d 62, 66–67 (1st\n\nCir. 2009).\n\n B.\n\n Rodriguez also sought withholding of removal and\n\nprotection under the CAT. These forms of relief require the\n\npetitioner to prove that it is \"more likely than not\" that he\n\nhimself would face persecution or torture if he returned to his\n\nhome country. Usman, 566 F.3d at 268 (quoting Guillaume v.\n\nGonzales, 504 F.3d 68, 71 n.2 (1st Cir. 2007)). There is no\n\njurisdictional bar to our review of the BIA's rulings as to these\n\nclaims. Nevertheless, we reject his challenges to the BIA's\n\nrulings as to each.\n\n With respect to his challenge to the BIA's ruling\n\naffirming the IJ's denial of his request for withholding of\n\nremoval, Rodriguez waived it by failing to develop it in his\n\n\n - 6 -\n\fopening brief. See, e.g., United States v. Zannino, 895 F.2d 1,\n\n17 (1st Cir. 1990) (\"[I]ssues adverted to in a perfunctory manner,\n\nunaccompanied by some effort at developed argumentation, are\n\ndeemed waived.\"). That leaves, then, only Rodriguez's challenge\n\nto the BIA's affirmance of the IJ's denial of his CAT claim on the\n\nground that \"there is no evidence in the record that the respondent\n\nwould be singled out for torture with the consent or acquiescence\n\nof a public official.\" (Emphasis added).\n\n The IJ specifically found that Rodriguez was not\n\ntortured in the past, that his family has not been tortured in\n\nMexico, and that, although one of his friends was killed, Rodriguez\n\nhad not provided any evidence with respect to that crime to show\n\nthe motivation of the killers. As Rodriquez fails to identify any\n\nevidence to suggest that substantial evidence fails to support the\n\nBIA's affirmance of the IJ's finding that he himself is not likely\n\nto be tortured, he provides us with no basis for overturning the\n\nBIA's ruling on his CAT claim.\n\n III.\n\n The petition for review is dismissed in part and denied\n\nin part.\n\n\n\n\n - 7 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jaime RODRIGUEZ-PALACIOS, Petitioner, v. William P. BARR, United States Attorney General, Respondent.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-12\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1430\\n\\n JAIME RODRIGUEZ-PALACIOS,\\n\\n Petitioner,\\n\\n v.\\n\\n WILLIAM P. BARR,\\n UNITED STATES ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n PETITION FOR REVIEW OF AN ORDER OF THE\\n BOARD OF IMMIGRATION APPEALS\\n\\n\\n Before\\n\\n Lynch, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Melanie Chaput and Chaput Law Office on brief for petitioner.\\n Genevieve Kelly, Trial Attorney, Office of Immigration\\nLitigation, U.S. Department of Justice, Joseph H. Hunt, Assistant\\nAttorney General, Civil Division, U.S. Department of Justice, and\\nCindy S. Ferrier, Assistant Director, Office of Immigration\\nLitigation, U.S. Department of Justice, on brief for respondent.\\n\\n\\n\\n June 12, 2019\\n\\f BARRON, Circuit Judge. Jaime Rodriguez-Palacios\\n\\n(\\\"Rodriguez\\\"), a Mexican citizen, petitions for review of the Board\\n\\nof Immigration Appeals's (\\\"BIA\\\") order, which upheld the\\n\\nImmigration Judge's (\\\"IJ\\\") denial of his applications for asylum,\\n\\nwithholding of removal, and protection under the Convention\\n\\nAgainst Torture (\\\"CAT\\\"). We dismiss in part and deny in part the\\n\\npetition for review.\\n\\n I.\\n\\n Rodriguez was born in Mexico and entered the United\\n\\nStates without inspection in February 2007. The Department of\\n\\nHomeland Security (\\\"DHS\\\") commenced removal proceedings against\\n\\nRodriguez on July 3, 2012, by filing a Notice to Appear with the\\n\\nImmigration Court that charged him with being removable from the\\n\\nUnited States under 8 U.S.C. § 1182(a)(6)(A)(i).1 Thereafter, in\\n\\nNovember 2012, Rodriguez filed an application for asylum,\\n\\nwithholding of removal, and protection under the CAT.\\n\\n\\n\\n\\n 1 Rodriguez notes that the Notice to Appear failed to\\ndesignate a date or time for the future hearing, stating only that\\nhe was required to appear at a date and time \\\"to be set.\\\" Citing\\nPereira v. Sessions, 138 S. Ct. 2105 (2018), Rodriguez contends\\nthat his Notice to Appear is now considered statutorily deficient,\\nrendering him eligible for Cancellation of Removal for\\nNonpermanent Residents. However, he does not offer any arguments\\nto us in reliance on Pereira, but rather notes that he has filed\\na motion before the BIA to remand the matter to the IJ. Therefore,\\nwe do not address that issue in this opinion.\\n\\n\\n - 2 -\\n\\f At a hearing before the IJ on May 3, 2017, Rodriguez\\n\\ntestified as follows. He was born and raised in Colima, Mexico,\\n\\nwhere his parents and siblings still resided. Four years before\\n\\nhe entered the United States, someone unsuccessfully tried to hit\\n\\nhim with a bottle at a party. After the attempted assault,\\n\\nRodriguez ran away with his friends and, afraid of retaliation,\\n\\nnever reported the incident to the police, though his friends told\\n\\nhim that the perpetrator belonged to a gang. Before he left for\\n\\nthe United States, he worked at a shipyard. Neither he nor his\\n\\nco-workers had any problems there. He left Mexico with the\\n\\nassistance of a coyote \\\"[b]ecause [he] was looking for the future,\\n\\nand because of the violence that's in Mexico.\\\"\\n\\n Rodriguez further testified that his family had no\\n\\nproblems in Mexico even after he left, though his brother worked\\n\\nfor the Mexican military and kept to himself out of fear.\\n\\nRodriguez also mentioned that, about a month before his hearing\\n\\nbefore the IJ, a friend of his was murdered by gang members at a\\n\\nlocation that was about fifteen to twenty minutes from his\\n\\nhometown, perhaps because his friend used drugs. Rodriguez\\n\\ntestified that he feared returning to Mexico because he or his\\n\\nchildren could be targeted by kidnappers or extortionists who would\\n\\nassume that he had money because he was returning from the United\\n\\nStates. Finally, Rodriguez noted that he did not apply for asylum\\n\\nin 2007 because circumstances were better in Mexico at that time.\\n\\n\\n - 3 -\\n\\fHe stated that \\\"[a]bout nine or 10 years [ago] is when things\\n\\nstarted to change. And they're worse and worse with the\\n\\nkidnappings and murders and the cartels.\\\"\\n\\n After reviewing this testimony, along with news articles\\n\\nand country reports that Rodriquez submitted, the IJ denied\\n\\nRodriguez's applications for asylum, withholding of removal, and\\n\\ndeferral of removal under the CAT, but granted his request for\\n\\nvoluntary departure. Rodriguez filed a Notice of Appeal to the\\n\\nBIA, which upheld the IJ's factual findings and dismissed the\\n\\nappeal. We now consider Rodriguez's timely petition for review of\\n\\nthe BIA's ruling.\\n\\n II.\\n\\n Where, as here, \\\"the BIA wrote separately while also\\n\\napproving the IJ's decision, our review is directed at both of\\n\\nthose decisions.\\\" Ahmed v. Holder, 765 F.3d 96, 99 (1st Cir.\\n\\n2014). We examine legal conclusions de novo and factual findings\\n\\nunder the substantial evidence standard, \\\"accepting the agency's\\n\\nfactfinding unless the evidence 'would compel a reasonable\\n\\nfactfinder to reach a contrary conclusion.'\\\" Guaman-Loja v.\\n\\nHolder, 707 F.3d 119, 122 (1st Cir. 2013) (quoting Seng v. Holder,\\n\\n584 F.3d 13, 17 (1st Cir. 2009)).\\n\\n A.\\n\\n A petitioner seeking asylum must \\\"demonstrate[] by clear\\n\\nand convincing evidence\\\" that his asylum application was filed\\n\\n\\n - 4 -\\n\\fwithin one year of his arrival in the United States. 8 U.S.C.\\n\\n§ 1158(a)(2)(B). A failure to meet this one-year filing deadline\\n\\nmay be excused if \\\"the alien demonstrates to the satisfaction of\\n\\nthe Attorney General either the existence of changed circumstances\\n\\nwhich materially affect the applicant's eligibility for asylum or\\n\\nextraordinary circumstances relating to the delay in filing an\\n\\napplication.\\\" Id. § 1158(a)(2)(D).\\n\\n Rodriguez did not file his asylum application within one\\n\\nyear of entering the United States. Moreover, he acknowledges\\n\\nthat \\\"we have no jurisdiction to review the Attorney General's\\n\\ndetermination that an asylum application is untimely and unexcused\\n\\nby circumstances.\\\" Usman v. Holder, 566 F.3d 262, 267 (1st Cir.\\n\\n2009) (internal alteration omitted) (quoting Lutaaya v. Mukasey,\\n\\n535 F.3d 63, 69 (1st Cir. 2008)) (citing 8 U.S.C. § 1158(a)(3)\\n\\n(providing that \\\"[n]o court shall have jurisdiction to review any\\n\\ndetermination of the Attorney General\\\" on an asylum seeker's\\n\\ncompliance with the one-year time limit)).\\n\\n Nevertheless, Rodriguez contends that we may review his\\n\\nchallenge pursuant to 8 U.S.C. § 1252(a)(2)(D), which states that\\n\\n\\\"[n]othing in . . . this chapter . . . which limits or eliminates\\n\\njudicial review, shall be construed as precluding review of\\n\\nconstitutional claims or questions of law raised upon a petition\\n\\nfor review.\\\" In order for this exception to the jurisdictional\\n\\nbar to apply, \\\"the putative constitutional or legal challenge must\\n\\n\\n - 5 -\\n\\fbe more than a disguised challenge to factual findings.\\\" Usman,\\n\\n566 F.3d at 267 (quoting Pan v. Gonzales, 489 F.3d 80, 84 (1st\\n\\nCir. 2007)).\\n\\n Rodriguez styles his challenge to the BIA's timeliness\\n\\nruling as one that targets the legal standard that the BIA applied.\\n\\nIn fact, however, his challenge takes issue with the evidentiary\\n\\nbasis for the BIA's finding that \\\"circumstances\\\" did not excuse\\n\\nhis untimely application for asylum. Therefore, we do not have\\n\\njurisdiction to review his petition for review of the BIA's ruling\\n\\non his asylum claim. See Oroh v. Holder, 561 F.3d 62, 66–67 (1st\\n\\nCir. 2009).\\n\\n B.\\n\\n Rodriguez also sought withholding of removal and\\n\\nprotection under the CAT. These forms of relief require the\\n\\npetitioner to prove that it is \\\"more likely than not\\\" that he\\n\\nhimself would face persecution or torture if he returned to his\\n\\nhome country. Usman, 566 F.3d at 268 (quoting Guillaume v.\\n\\nGonzales, 504 F.3d 68, 71 n.2 (1st Cir. 2007)). There is no\\n\\njurisdictional bar to our review of the BIA's rulings as to these\\n\\nclaims. Nevertheless, we reject his challenges to the BIA's\\n\\nrulings as to each.\\n\\n With respect to his challenge to the BIA's ruling\\n\\naffirming the IJ's denial of his request for withholding of\\n\\nremoval, Rodriguez waived it by failing to develop it in his\\n\\n\\n - 6 -\\n\\fopening brief. See, e.g., United States v. Zannino, 895 F.2d 1,\\n\\n17 (1st Cir. 1990) (\\\"[I]ssues adverted to in a perfunctory manner,\\n\\nunaccompanied by some effort at developed argumentation, are\\n\\ndeemed waived.\\\"). That leaves, then, only Rodriguez's challenge\\n\\nto the BIA's affirmance of the IJ's denial of his CAT claim on the\\n\\nground that \\\"there is no evidence in the record that the respondent\\n\\nwould be singled out for torture with the consent or acquiescence\\n\\nof a public official.\\\" (Emphasis added).\\n\\n The IJ specifically found that Rodriguez was not\\n\\ntortured in the past, that his family has not been tortured in\\n\\nMexico, and that, although one of his friends was killed, Rodriguez\\n\\nhad not provided any evidence with respect to that crime to show\\n\\nthe motivation of the killers. As Rodriquez fails to identify any\\n\\nevidence to suggest that substantial evidence fails to support the\\n\\nBIA's affirmance of the IJ's finding that he himself is not likely\\n\\nto be tortured, he provides us with no basis for overturning the\\n\\nBIA's ruling on his CAT claim.\\n\\n III.\\n\\n The petition for review is dismissed in part and denied\\n\\nin part.\\n\\n\\n\\n\\n - 7 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2371,"cells":{"id":{"kind":"number","value":4628864,"string":"4,628,864"},"name":{"kind":"string","value":"Arnulfo PEREZ, Petitioner, v. William P. BARR, United States Attorney General, Respondent."},"name_abbreviation":{"kind":"string","value":"Perez v. Barr"},"decision_date":{"kind":"string","value":"2019-06-12"},"docket_number":{"kind":"string","value":"18-2026P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Howard, Thompson, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARRON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-2026\\n\\n ARNULFO PEREZ,\\n\\n Petitioner,\\n\\n v.\\n\\n WILLIAM P. BARR,\\n UNITED STATES ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n PETITION FOR REVIEW OF AN ORDER OF\\n THE BOARD OF IMMIGRATION APPEALS\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Thompson and Barron, Circuit Judges.\\n\\n\\n Carlos E. Estrada, Ashley M. Barkoudah, and Estrada Law\\nOffice, on brief for petitioner.\\n Joseph H. Hunt, Assistant Attorney General, Civil Division,\\nKiley Kane, Senior Litigation Counsel, Office of Immigration\\nLitigation, and Katherine A. Smith, Trial Attorney, Office of\\nImmigration Litigation, on brief for respondent.\\n\\n\\n\\n June 12, 2019\\n\\f BARRON, Circuit Judge. Arnulfo Perez, a citizen of\\n\\nMexico who entered the United States without admission or parole,\\n\\npetitions for review of the denial of his application for\\n\\ncancellation of removal under 8 U.S.C. § 1229b(b). We dismiss the\\n\\npetition for lack of jurisdiction.\\n\\n I.\\n\\n On April 17, 2012, the Department of Homeland Security\\n\\nserved Perez with a Notice to Appear and charged him with\\n\\nremovability under 8 U.S.C. § 1182(a)(6)(A)(i). Perez conceded\\n\\nremovability but filed an application for cancellation of removal\\n\\nunder 8 U.S.C. § 1229b(b). Perez claimed in his application that\\n\\nhe had lived in the United States since 1986 and that his removal\\n\\nwould cause undue hardship to his children, who are United States\\n\\ncitizens.\\n\\n An Immigration Judge (\\\"IJ\\\") held a hearing on Perez's\\n\\napplication on August 29, 2016. Perez and his wife, Jennifer\\n\\nLavalley, testified at the hearing in support of his application\\n\\nand submitted numerous documents. The government, for its part,\\n\\nalso submitted documents. Those documents showed that Perez had\\n\\ntwo prior felony convictions -- one in 1994 for drunk driving and\\n\\none in 2000 for assault -- as well as four prior arrests. The\\n\\ndocuments included a 2006 police report that showed that Perez had\\n\\nbeen arrested on charges of, among other things, aggravated assault\\n\\nand battery for allegedly assaulting Lavalley and a 2012 police\\n\\n\\n - 2 -\\n\\freport that showed that Perez had been arrested on charges of,\\n\\namong other things, assault and attempted murder for allegedly\\n\\nattempting to strangle Lavalley.\\n\\n On September 6, 2017, the IJ issued a 32-page written\\n\\ndecision denying Perez's application. The IJ \\\"assum[ed] arguendo\\\"\\n\\nthat Perez met the statutory requirements for cancellation of\\n\\nremoval, see 8 U.S.C. § 1229b(b)(1), but found \\\"that [Perez] has\\n\\nnot met his burden of proving that he merits this form of relief\\n\\nas a matter of discretion.\\\" The IJ concluded that Perez's\\n\\n\\\"positive equities\\\" -- most significantly, hardship to his\\n\\nfamily -- \\\"are outweighed by significant adverse\\n\\nfactors\\\" -- specifically, \\\"his history of physical abuse against\\n\\nhis wife\\\" as well as \\\"the inconsistencies in [Perez's] and\\n\\n[Lavalley's] testimony[] and [his] lack of remorse or\\n\\nrehabilitation.\\\" The IJ also concluded that Perez \\\"failed to\\n\\nprovide adequate evidence to meet his burden of proof\\\" in part\\n\\nbecause the Lavalley family, whom both police reports showed \\\"ha[d]\\n\\nplayed an important role in fully reporting [Perez's] abusive\\n\\nbehavior to the police,\\\" \\\"have been largely absent from these\\n\\nproceedings.\\\" Perez timely appealed the IJ's denial of his\\n\\napplication for cancellation of removal to the Board of Immigration\\n\\nAppeals (\\\"BIA\\\").\\n\\n On September 20, 2018, the BIA \\\"adopt[ed] and affirm[ed]\\n\\nthe decision of the Immigration Judge for the reasons stated\\n\\n\\n - 3 -\\n\\ftherein.\\\" The BIA also rejected Perez's argument that \\\"the\\n\\nImmigration Judge improperly relied on the police reports as they\\n\\nare unreliable and their use was fundamentally unfair.\\\" The BIA\\n\\nconcluded that \\\"the evidence is probative, as it is relevant to\\n\\nthe issue of the respondent's discretionary application for\\n\\nrelief, and its admission is fundamentally fair as the documents\\n\\nwere created by government officials and there is no indication of\\n\\nbias or that their contents are unreliable.\\\" Perez then filed\\n\\nthis petition for review.\\n\\n II.\\n\\n We lack jurisdiction to review \\\"any judgment regarding\\n\\nthe granting of relief under [8 U.S.C. § 1229b].\\\" 8 U.S.C.\\n\\n§ 1252(a)(2)(B)(i); see also Rivera v. Sessions, 903 F.3d 147, 150\\n\\n(1st Cir. 2018); Cruz-Camey v. Gonzales, 504 F.3d 28, 29 (1st Cir.\\n\\n2007). But, although we may not review the discretionary decision\\n\\nthat an applicant does not merit the requested relief, we retain\\n\\njurisdiction with respect to a denial of such relief to\\n\\n\\\"review . . . constitutional claims or questions of law raised\\n\\nupon a petition for review.\\\" 8 U.S.C. § 1252(a)(2)(D); see also\\n\\nCastro v. Holder, 727 F.3d 125, 128 (1st Cir. 2013); Santana-\\n\\nMedina v. Holder, 616 F.3d 49, 52 (1st Cir. 2010). \\\"[T]o confer\\n\\njurisdiction,\\\" however, the petitioner's \\\"'claim of constitutional\\n\\nor legal error must at least be colorable.'\\\" Rivera, 903 F.3d at\\n\\n\\n\\n\\n - 4 -\\n\\f150 (emphasis added) (quoting Ayeni v. Holder, 617 F.3d 67, 71\\n\\n(1st Cir. 2010)).\\n\\n Perez's sole legal claim to us is that the BIA erred in\\n\\nadopting and affirming the IJ's decision because the IJ \\\"relied\\n\\nalmost exclusively on hearsay police reports in determining that\\n\\n[Perez] did not warrant a favorable exercise of discretion.\\\" To\\n\\nthe extent that Perez means to contend that the BIA erred because\\n\\nthe IJ's findings gave too much weight to the police reports and\\n\\nnot enough weight to his and Lavalley's testimony, \\\"well settled\\n\\nFirst Circuit precedent\\\" is clear that such a \\\"challenge[] [to] a\\n\\ndetermination about the sufficiency of the evidence to meet [the\\n\\napplicant's] burden of proof\\\" is not a \\\"colorable legal or\\n\\nconstitutional claim.\\\" Fabian-Soriano v. Barr, No. 18-2052, 2019\\n\\nWL 2314383, at *3 (1st Cir. May 31, 2019) (citing Ayeni, 617 F.3d\\n\\nat 70-71; Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir. 2006);\\n\\nElysee v. Gonzales, 437 F.3d 221, 223–24 (1st Cir. 2006); Rashad\\n\\nv. Mukasey, 554 F.3d 1, 5 (1st Cir. 2009)); see also Lima v. Lynch,\\n\\n826 F.3d 606, 610 (1st Cir. 2016) (finding no colorable claim in\\n\\nthe applicant's contention that \\\"the IJ should not have\\n\\nfound . . . police reports credible and should instead have\\n\\ncredited his own testimony\\\").\\n\\n To the extent that Perez means to argue that it was\\n\\nlegal error for the BIA to adopt the IJ's findings because the\\n\\npolice reports on which they were based constituted hearsay, that\\n\\n\\n - 5 -\\n\\fargument also fails to raise a colorable claim under our\\n\\nestablished precedent. See Arias-Minaya v. Holder, 779 F.3d 49,\\n\\n54 (1st Cir. 2015) (\\\"[I]n reviewing requests for discretionary\\n\\nrelief, immigration courts may consider police reports even when\\n\\nthey rest largely on hearsay.\\\" (citing Henry v. I.N.S., 74 F.3d 1,\\n\\n6 (1st Cir. 1996))); Matter of Grijalva, 19 I. & N. Dec. 713, 721\\n\\n(B.I.A. 1988) (\\\"Although . . . police reports here are hearsay in\\n\\nnature, this does not mean that they are inadmissible in the\\n\\nrespondent's deportation proceedings.\\\"); Matter of Velasquez, 19\\n\\nI. & N. Dec. 377, 380 (B.I.A. 1986) (\\\"[D]ocumentary evidence in\\n\\ndeportation proceedings need not comport with the strict judicial\\n\\nrules of evidence.\\\").\\n\\n Perez does contend that the police reports should not\\n\\nhave been relied upon because they documented arrests that did not\\n\\nresult in convictions, and he points to Sierra-Reyes v. I.N.S.,\\n\\n585 F.2d 762 (5th Cir. 1978), in support of that contention. See\\n\\nid. at 764 n.3 (noting in dicta that certain \\\"police reports were\\n\\nnot probative of anything and should not have been considered as\\n\\n'adverse factors'\\\" where the \\\"Petitioner was never prosecuted for\\n\\nthese alleged crimes, apparently because the prosecuting\\n\\nauthorities decided that they had insufficient evidence to\\n\\nprosecute\\\"). But, we have \\\"previously held that an immigration\\n\\ncourt may generally consider a police report containing hearsay\\n\\nwhen making a discretionary immigration decision, even if an arrest\\n\\n\\n - 6 -\\n\\fdid not result in a charge or conviction, because the report casts\\n\\nprobative light on an alien's character.\\\" Mele v. Lynch, 798 F.3d\\n\\n30, 32 (1st Cir. 2015) (emphasis added) (citing Henry, 74 F.3d at\\n\\n6; Arias-Minaya, 779 F.3d at 54). Here, too, Perez fails to make\\n\\nout any colorable legal claim.\\n\\n Finally, Perez notes, rightly, that an immigration judge\\n\\nshould generally \\\"take[] into account and weigh[]\\\" \\\"the nature of\\n\\n[the applicant's] contacts [with the criminal justice system] and\\n\\nthe stage to which those proceedings have progressed.\\\" Matter of\\n\\nThomas, 21 I. & N. Dec. 20, 24 (B.I.A. 1995). But, Perez points\\n\\nto nothing in the record that would indicate that the IJ did not\\n\\ndo so here, such that we could conclude that Perez has made a\\n\\ncolorable claim that it was error for the BIA to have adopted the\\n\\nIJ's findings.\\n\\n III.\\n\\n For the foregoing reasons, the petition for review is\\n\\ndismissed.\\n\\n\\n\\n\\n - 7 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4406117/\", \"author_raw\": \"BARRON, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HOWARD"},"judge2":{"kind":"string","value":"THOMPSON"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4628864/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Arnulfo PEREZ, Petitioner, v. William P. BARR, United States Attorney General, Respondent.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-12\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-2026\n\n ARNULFO PEREZ,\n\n Petitioner,\n\n v.\n\n WILLIAM P. BARR,\n UNITED STATES ATTORNEY GENERAL,\n\n Respondent.\n\n\n PETITION FOR REVIEW OF AN ORDER OF\n THE BOARD OF IMMIGRATION APPEALS\n\n\n Before\n\n Howard, Chief Judge,\n Thompson and Barron, Circuit Judges.\n\n\n Carlos E. Estrada, Ashley M. Barkoudah, and Estrada Law\nOffice, on brief for petitioner.\n Joseph H. Hunt, Assistant Attorney General, Civil Division,\nKiley Kane, Senior Litigation Counsel, Office of Immigration\nLitigation, and Katherine A. Smith, Trial Attorney, Office of\nImmigration Litigation, on brief for respondent.\n\n\n\n June 12, 2019\n\f BARRON, Circuit Judge. Arnulfo Perez, a citizen of\n\nMexico who entered the United States without admission or parole,\n\npetitions for review of the denial of his application for\n\ncancellation of removal under 8 U.S.C. § 1229b(b). We dismiss the\n\npetition for lack of jurisdiction.\n\n I.\n\n On April 17, 2012, the Department of Homeland Security\n\nserved Perez with a Notice to Appear and charged him with\n\nremovability under 8 U.S.C. § 1182(a)(6)(A)(i). Perez conceded\n\nremovability but filed an application for cancellation of removal\n\nunder 8 U.S.C. § 1229b(b). Perez claimed in his application that\n\nhe had lived in the United States since 1986 and that his removal\n\nwould cause undue hardship to his children, who are United States\n\ncitizens.\n\n An Immigration Judge (\"IJ\") held a hearing on Perez's\n\napplication on August 29, 2016. Perez and his wife, Jennifer\n\nLavalley, testified at the hearing in support of his application\n\nand submitted numerous documents. The government, for its part,\n\nalso submitted documents. Those documents showed that Perez had\n\ntwo prior felony convictions -- one in 1994 for drunk driving and\n\none in 2000 for assault -- as well as four prior arrests. The\n\ndocuments included a 2006 police report that showed that Perez had\n\nbeen arrested on charges of, among other things, aggravated assault\n\nand battery for allegedly assaulting Lavalley and a 2012 police\n\n\n - 2 -\n\freport that showed that Perez had been arrested on charges of,\n\namong other things, assault and attempted murder for allegedly\n\nattempting to strangle Lavalley.\n\n On September 6, 2017, the IJ issued a 32-page written\n\ndecision denying Perez's application. The IJ \"assum[ed] arguendo\"\n\nthat Perez met the statutory requirements for cancellation of\n\nremoval, see 8 U.S.C. § 1229b(b)(1), but found \"that [Perez] has\n\nnot met his burden of proving that he merits this form of relief\n\nas a matter of discretion.\" The IJ concluded that Perez's\n\n\"positive equities\" -- most significantly, hardship to his\n\nfamily -- \"are outweighed by significant adverse\n\nfactors\" -- specifically, \"his history of physical abuse against\n\nhis wife\" as well as \"the inconsistencies in [Perez's] and\n\n[Lavalley's] testimony[] and [his] lack of remorse or\n\nrehabilitation.\" The IJ also concluded that Perez \"failed to\n\nprovide adequate evidence to meet his burden of proof\" in part\n\nbecause the Lavalley family, whom both police reports showed \"ha[d]\n\nplayed an important role in fully reporting [Perez's] abusive\n\nbehavior to the police,\" \"have been largely absent from these\n\nproceedings.\" Perez timely appealed the IJ's denial of his\n\napplication for cancellation of removal to the Board of Immigration\n\nAppeals (\"BIA\").\n\n On September 20, 2018, the BIA \"adopt[ed] and affirm[ed]\n\nthe decision of the Immigration Judge for the reasons stated\n\n\n - 3 -\n\ftherein.\" The BIA also rejected Perez's argument that \"the\n\nImmigration Judge improperly relied on the police reports as they\n\nare unreliable and their use was fundamentally unfair.\" The BIA\n\nconcluded that \"the evidence is probative, as it is relevant to\n\nthe issue of the respondent's discretionary application for\n\nrelief, and its admission is fundamentally fair as the documents\n\nwere created by government officials and there is no indication of\n\nbias or that their contents are unreliable.\" Perez then filed\n\nthis petition for review.\n\n II.\n\n We lack jurisdiction to review \"any judgment regarding\n\nthe granting of relief under [8 U.S.C. § 1229b].\" 8 U.S.C.\n\n§ 1252(a)(2)(B)(i); see also Rivera v. Sessions, 903 F.3d 147, 150\n\n(1st Cir. 2018); Cruz-Camey v. Gonzales, 504 F.3d 28, 29 (1st Cir.\n\n2007). But, although we may not review the discretionary decision\n\nthat an applicant does not merit the requested relief, we retain\n\njurisdiction with respect to a denial of such relief to\n\n\"review . . . constitutional claims or questions of law raised\n\nupon a petition for review.\" 8 U.S.C. § 1252(a)(2)(D); see also\n\nCastro v. Holder, 727 F.3d 125, 128 (1st Cir. 2013); Santana-\n\nMedina v. Holder, 616 F.3d 49, 52 (1st Cir. 2010). \"[T]o confer\n\njurisdiction,\" however, the petitioner's \"'claim of constitutional\n\nor legal error must at least be colorable.'\" Rivera, 903 F.3d at\n\n\n\n\n - 4 -\n\f150 (emphasis added) (quoting Ayeni v. Holder, 617 F.3d 67, 71\n\n(1st Cir. 2010)).\n\n Perez's sole legal claim to us is that the BIA erred in\n\nadopting and affirming the IJ's decision because the IJ \"relied\n\nalmost exclusively on hearsay police reports in determining that\n\n[Perez] did not warrant a favorable exercise of discretion.\" To\n\nthe extent that Perez means to contend that the BIA erred because\n\nthe IJ's findings gave too much weight to the police reports and\n\nnot enough weight to his and Lavalley's testimony, \"well settled\n\nFirst Circuit precedent\" is clear that such a \"challenge[] [to] a\n\ndetermination about the sufficiency of the evidence to meet [the\n\napplicant's] burden of proof\" is not a \"colorable legal or\n\nconstitutional claim.\" Fabian-Soriano v. Barr, No. 18-2052, 2019\n\nWL 2314383, at *3 (1st Cir. May 31, 2019) (citing Ayeni, 617 F.3d\n\nat 70-71; Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir. 2006);\n\nElysee v. Gonzales, 437 F.3d 221, 223–24 (1st Cir. 2006); Rashad\n\nv. Mukasey, 554 F.3d 1, 5 (1st Cir. 2009)); see also Lima v. Lynch,\n\n826 F.3d 606, 610 (1st Cir. 2016) (finding no colorable claim in\n\nthe applicant's contention that \"the IJ should not have\n\nfound . . . police reports credible and should instead have\n\ncredited his own testimony\").\n\n To the extent that Perez means to argue that it was\n\nlegal error for the BIA to adopt the IJ's findings because the\n\npolice reports on which they were based constituted hearsay, that\n\n\n - 5 -\n\fargument also fails to raise a colorable claim under our\n\nestablished precedent. See Arias-Minaya v. Holder, 779 F.3d 49,\n\n54 (1st Cir. 2015) (\"[I]n reviewing requests for discretionary\n\nrelief, immigration courts may consider police reports even when\n\nthey rest largely on hearsay.\" (citing Henry v. I.N.S., 74 F.3d 1,\n\n6 (1st Cir. 1996))); Matter of Grijalva, 19 I. & N. Dec. 713, 721\n\n(B.I.A. 1988) (\"Although . . . police reports here are hearsay in\n\nnature, this does not mean that they are inadmissible in the\n\nrespondent's deportation proceedings.\"); Matter of Velasquez, 19\n\nI. & N. Dec. 377, 380 (B.I.A. 1986) (\"[D]ocumentary evidence in\n\ndeportation proceedings need not comport with the strict judicial\n\nrules of evidence.\").\n\n Perez does contend that the police reports should not\n\nhave been relied upon because they documented arrests that did not\n\nresult in convictions, and he points to Sierra-Reyes v. I.N.S.,\n\n585 F.2d 762 (5th Cir. 1978), in support of that contention. See\n\nid. at 764 n.3 (noting in dicta that certain \"police reports were\n\nnot probative of anything and should not have been considered as\n\n'adverse factors'\" where the \"Petitioner was never prosecuted for\n\nthese alleged crimes, apparently because the prosecuting\n\nauthorities decided that they had insufficient evidence to\n\nprosecute\"). But, we have \"previously held that an immigration\n\ncourt may generally consider a police report containing hearsay\n\nwhen making a discretionary immigration decision, even if an arrest\n\n\n - 6 -\n\fdid not result in a charge or conviction, because the report casts\n\nprobative light on an alien's character.\" Mele v. Lynch, 798 F.3d\n\n30, 32 (1st Cir. 2015) (emphasis added) (citing Henry, 74 F.3d at\n\n6; Arias-Minaya, 779 F.3d at 54). Here, too, Perez fails to make\n\nout any colorable legal claim.\n\n Finally, Perez notes, rightly, that an immigration judge\n\nshould generally \"take[] into account and weigh[]\" \"the nature of\n\n[the applicant's] contacts [with the criminal justice system] and\n\nthe stage to which those proceedings have progressed.\" Matter of\n\nThomas, 21 I. & N. Dec. 20, 24 (B.I.A. 1995). But, Perez points\n\nto nothing in the record that would indicate that the IJ did not\n\ndo so here, such that we could conclude that Perez has made a\n\ncolorable claim that it was error for the BIA to have adopted the\n\nIJ's findings.\n\n III.\n\n For the foregoing reasons, the petition for review is\n\ndismissed.\n\n\n\n\n - 7 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Arnulfo PEREZ, Petitioner, v. William P. BARR, United States Attorney General, Respondent.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-12\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-2026\\n\\n ARNULFO PEREZ,\\n\\n Petitioner,\\n\\n v.\\n\\n WILLIAM P. BARR,\\n UNITED STATES ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n PETITION FOR REVIEW OF AN ORDER OF\\n THE BOARD OF IMMIGRATION APPEALS\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Thompson and Barron, Circuit Judges.\\n\\n\\n Carlos E. Estrada, Ashley M. Barkoudah, and Estrada Law\\nOffice, on brief for petitioner.\\n Joseph H. Hunt, Assistant Attorney General, Civil Division,\\nKiley Kane, Senior Litigation Counsel, Office of Immigration\\nLitigation, and Katherine A. Smith, Trial Attorney, Office of\\nImmigration Litigation, on brief for respondent.\\n\\n\\n\\n June 12, 2019\\n\\f BARRON, Circuit Judge. Arnulfo Perez, a citizen of\\n\\nMexico who entered the United States without admission or parole,\\n\\npetitions for review of the denial of his application for\\n\\ncancellation of removal under 8 U.S.C. § 1229b(b). We dismiss the\\n\\npetition for lack of jurisdiction.\\n\\n I.\\n\\n On April 17, 2012, the Department of Homeland Security\\n\\nserved Perez with a Notice to Appear and charged him with\\n\\nremovability under 8 U.S.C. § 1182(a)(6)(A)(i). Perez conceded\\n\\nremovability but filed an application for cancellation of removal\\n\\nunder 8 U.S.C. § 1229b(b). Perez claimed in his application that\\n\\nhe had lived in the United States since 1986 and that his removal\\n\\nwould cause undue hardship to his children, who are United States\\n\\ncitizens.\\n\\n An Immigration Judge (\\\"IJ\\\") held a hearing on Perez's\\n\\napplication on August 29, 2016. Perez and his wife, Jennifer\\n\\nLavalley, testified at the hearing in support of his application\\n\\nand submitted numerous documents. The government, for its part,\\n\\nalso submitted documents. Those documents showed that Perez had\\n\\ntwo prior felony convictions -- one in 1994 for drunk driving and\\n\\none in 2000 for assault -- as well as four prior arrests. The\\n\\ndocuments included a 2006 police report that showed that Perez had\\n\\nbeen arrested on charges of, among other things, aggravated assault\\n\\nand battery for allegedly assaulting Lavalley and a 2012 police\\n\\n\\n - 2 -\\n\\freport that showed that Perez had been arrested on charges of,\\n\\namong other things, assault and attempted murder for allegedly\\n\\nattempting to strangle Lavalley.\\n\\n On September 6, 2017, the IJ issued a 32-page written\\n\\ndecision denying Perez's application. The IJ \\\"assum[ed] arguendo\\\"\\n\\nthat Perez met the statutory requirements for cancellation of\\n\\nremoval, see 8 U.S.C. § 1229b(b)(1), but found \\\"that [Perez] has\\n\\nnot met his burden of proving that he merits this form of relief\\n\\nas a matter of discretion.\\\" The IJ concluded that Perez's\\n\\n\\\"positive equities\\\" -- most significantly, hardship to his\\n\\nfamily -- \\\"are outweighed by significant adverse\\n\\nfactors\\\" -- specifically, \\\"his history of physical abuse against\\n\\nhis wife\\\" as well as \\\"the inconsistencies in [Perez's] and\\n\\n[Lavalley's] testimony[] and [his] lack of remorse or\\n\\nrehabilitation.\\\" The IJ also concluded that Perez \\\"failed to\\n\\nprovide adequate evidence to meet his burden of proof\\\" in part\\n\\nbecause the Lavalley family, whom both police reports showed \\\"ha[d]\\n\\nplayed an important role in fully reporting [Perez's] abusive\\n\\nbehavior to the police,\\\" \\\"have been largely absent from these\\n\\nproceedings.\\\" Perez timely appealed the IJ's denial of his\\n\\napplication for cancellation of removal to the Board of Immigration\\n\\nAppeals (\\\"BIA\\\").\\n\\n On September 20, 2018, the BIA \\\"adopt[ed] and affirm[ed]\\n\\nthe decision of the Immigration Judge for the reasons stated\\n\\n\\n - 3 -\\n\\ftherein.\\\" The BIA also rejected Perez's argument that \\\"the\\n\\nImmigration Judge improperly relied on the police reports as they\\n\\nare unreliable and their use was fundamentally unfair.\\\" The BIA\\n\\nconcluded that \\\"the evidence is probative, as it is relevant to\\n\\nthe issue of the respondent's discretionary application for\\n\\nrelief, and its admission is fundamentally fair as the documents\\n\\nwere created by government officials and there is no indication of\\n\\nbias or that their contents are unreliable.\\\" Perez then filed\\n\\nthis petition for review.\\n\\n II.\\n\\n We lack jurisdiction to review \\\"any judgment regarding\\n\\nthe granting of relief under [8 U.S.C. § 1229b].\\\" 8 U.S.C.\\n\\n§ 1252(a)(2)(B)(i); see also Rivera v. Sessions, 903 F.3d 147, 150\\n\\n(1st Cir. 2018); Cruz-Camey v. Gonzales, 504 F.3d 28, 29 (1st Cir.\\n\\n2007). But, although we may not review the discretionary decision\\n\\nthat an applicant does not merit the requested relief, we retain\\n\\njurisdiction with respect to a denial of such relief to\\n\\n\\\"review . . . constitutional claims or questions of law raised\\n\\nupon a petition for review.\\\" 8 U.S.C. § 1252(a)(2)(D); see also\\n\\nCastro v. Holder, 727 F.3d 125, 128 (1st Cir. 2013); Santana-\\n\\nMedina v. Holder, 616 F.3d 49, 52 (1st Cir. 2010). \\\"[T]o confer\\n\\njurisdiction,\\\" however, the petitioner's \\\"'claim of constitutional\\n\\nor legal error must at least be colorable.'\\\" Rivera, 903 F.3d at\\n\\n\\n\\n\\n - 4 -\\n\\f150 (emphasis added) (quoting Ayeni v. Holder, 617 F.3d 67, 71\\n\\n(1st Cir. 2010)).\\n\\n Perez's sole legal claim to us is that the BIA erred in\\n\\nadopting and affirming the IJ's decision because the IJ \\\"relied\\n\\nalmost exclusively on hearsay police reports in determining that\\n\\n[Perez] did not warrant a favorable exercise of discretion.\\\" To\\n\\nthe extent that Perez means to contend that the BIA erred because\\n\\nthe IJ's findings gave too much weight to the police reports and\\n\\nnot enough weight to his and Lavalley's testimony, \\\"well settled\\n\\nFirst Circuit precedent\\\" is clear that such a \\\"challenge[] [to] a\\n\\ndetermination about the sufficiency of the evidence to meet [the\\n\\napplicant's] burden of proof\\\" is not a \\\"colorable legal or\\n\\nconstitutional claim.\\\" Fabian-Soriano v. Barr, No. 18-2052, 2019\\n\\nWL 2314383, at *3 (1st Cir. May 31, 2019) (citing Ayeni, 617 F.3d\\n\\nat 70-71; Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir. 2006);\\n\\nElysee v. Gonzales, 437 F.3d 221, 223–24 (1st Cir. 2006); Rashad\\n\\nv. Mukasey, 554 F.3d 1, 5 (1st Cir. 2009)); see also Lima v. Lynch,\\n\\n826 F.3d 606, 610 (1st Cir. 2016) (finding no colorable claim in\\n\\nthe applicant's contention that \\\"the IJ should not have\\n\\nfound . . . police reports credible and should instead have\\n\\ncredited his own testimony\\\").\\n\\n To the extent that Perez means to argue that it was\\n\\nlegal error for the BIA to adopt the IJ's findings because the\\n\\npolice reports on which they were based constituted hearsay, that\\n\\n\\n - 5 -\\n\\fargument also fails to raise a colorable claim under our\\n\\nestablished precedent. See Arias-Minaya v. Holder, 779 F.3d 49,\\n\\n54 (1st Cir. 2015) (\\\"[I]n reviewing requests for discretionary\\n\\nrelief, immigration courts may consider police reports even when\\n\\nthey rest largely on hearsay.\\\" (citing Henry v. I.N.S., 74 F.3d 1,\\n\\n6 (1st Cir. 1996))); Matter of Grijalva, 19 I. & N. Dec. 713, 721\\n\\n(B.I.A. 1988) (\\\"Although . . . police reports here are hearsay in\\n\\nnature, this does not mean that they are inadmissible in the\\n\\nrespondent's deportation proceedings.\\\"); Matter of Velasquez, 19\\n\\nI. & N. Dec. 377, 380 (B.I.A. 1986) (\\\"[D]ocumentary evidence in\\n\\ndeportation proceedings need not comport with the strict judicial\\n\\nrules of evidence.\\\").\\n\\n Perez does contend that the police reports should not\\n\\nhave been relied upon because they documented arrests that did not\\n\\nresult in convictions, and he points to Sierra-Reyes v. I.N.S.,\\n\\n585 F.2d 762 (5th Cir. 1978), in support of that contention. See\\n\\nid. at 764 n.3 (noting in dicta that certain \\\"police reports were\\n\\nnot probative of anything and should not have been considered as\\n\\n'adverse factors'\\\" where the \\\"Petitioner was never prosecuted for\\n\\nthese alleged crimes, apparently because the prosecuting\\n\\nauthorities decided that they had insufficient evidence to\\n\\nprosecute\\\"). But, we have \\\"previously held that an immigration\\n\\ncourt may generally consider a police report containing hearsay\\n\\nwhen making a discretionary immigration decision, even if an arrest\\n\\n\\n - 6 -\\n\\fdid not result in a charge or conviction, because the report casts\\n\\nprobative light on an alien's character.\\\" Mele v. Lynch, 798 F.3d\\n\\n30, 32 (1st Cir. 2015) (emphasis added) (citing Henry, 74 F.3d at\\n\\n6; Arias-Minaya, 779 F.3d at 54). Here, too, Perez fails to make\\n\\nout any colorable legal claim.\\n\\n Finally, Perez notes, rightly, that an immigration judge\\n\\nshould generally \\\"take[] into account and weigh[]\\\" \\\"the nature of\\n\\n[the applicant's] contacts [with the criminal justice system] and\\n\\nthe stage to which those proceedings have progressed.\\\" Matter of\\n\\nThomas, 21 I. & N. Dec. 20, 24 (B.I.A. 1995). But, Perez points\\n\\nto nothing in the record that would indicate that the IJ did not\\n\\ndo so here, such that we could conclude that Perez has made a\\n\\ncolorable claim that it was error for the BIA to have adopted the\\n\\nIJ's findings.\\n\\n III.\\n\\n For the foregoing reasons, the petition for review is\\n\\ndismissed.\\n\\n\\n\\n\\n - 7 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2372,"cells":{"id":{"kind":"number","value":4628865,"string":"4,628,865"},"name":{"kind":"string","value":"Raymond LAPOINTE, Plaintiff, Appellant, v. SILKO MOTOR SALES, INC., Defendant, Appellee."},"name_abbreviation":{"kind":"string","value":"Lapointe v. Silko Motor Sales, Inc."},"decision_date":{"kind":"string","value":"2019-06-12"},"docket_number":{"kind":"string","value":"18-1848P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Howard, Lynch, Lipez\", \"parties\": \"\", \"opinions\": [{\"author\": \"LIPEZ, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1848\\n\\n RAYMOND LAPOINTE,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n SILKO MOTOR SALES, INC.,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. M. Page Kelley, Magistrate Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Lynch and Lipez, Circuit Judges.\\n\\n\\n David J. Oliveira for appellant.\\n John F. Gleavy, with whom Lynch & Lynch was on brief, for\\nappellee.\\n\\n\\n June 12, 2019\\n\\f LIPEZ, Circuit Judge. In this diversity tort action,\\n\\nRaymond Lapointe seeks damages for a severe knee injury sustained\\n\\nwhen he slipped on fluid at an auto dealership that his company\\n\\nhad been hired to clean. Finding that the dealership neither had\\n\\na duty to warn Lapointe of the puddle nor acted negligently in\\n\\nfailing to address it, the district court granted summary judgment\\n\\nfor defendant Silko Motor Sales, Inc. After careful review of the\\n\\nfacts and the law, we affirm. The district court properly found\\n\\nthat Silko could not be found liable because Lapointe was \\\"hurt by\\n\\nthe very hazard he was required to remedy.\\\" Callahan v. Bos.\\n\\nEdison Co., 509 N.E.2d 1208, 1210 (Mass. 1987).\\n\\n I.\\n\\n We summarize the relevant facts, which are undisputed\\n\\nunless otherwise noted. Silko hired Jan-Pro Cleaning Systems (\\\"Jan\\n\\nPro\\\") to clean its dealership, and the parties' written agreement\\n\\nspecified that the cleaning tasks included \\\"[m]achine scrub[bing]\\n\\nall service floors\\\" six times per week, using a degreasing chemical\\n\\nprovided by the dealership. At the time of his fall in July 2013,\\n\\nLapointe was a regional manager for Jan Pro, where his\\n\\nresponsibilities included filling in for the company's franchise\\n\\nowners when they were sick. On the evening that Lapointe slipped,\\n\\nhe was substituting at Silko for a franchisee, as he had done there\\n\\non previous occasions.\\n\\n\\n\\n\\n - 2 -\\n\\f Lapointe cleaned other parts of the Silko facility\\n\\nbefore entering the service area and, before scrubbing the floors\\n\\nthere, he decided to dispose of trash in a dumpster outside. He\\n\\nheaded toward the button that opened the service area garage door.\\n\\nAs he walked around a pallet holding engine parts, he lost his\\n\\nbalance and fell. Lapointe then noticed an accumulation of oil or\\n\\ntransmission fluid on the floor near the pallet, which he estimated\\n\\nto be about eight inches in diameter and one-sixteenth of an inch\\n\\ndeep. After his fall, Lapointe completed his work at the\\n\\ndealership, including cleaning the substance from the floor where\\n\\nhe fell.\\n\\n Lapointe testified in his deposition that the pallet was\\n\\nwaist high and placed on the floor in an area that Jan Pro\\n\\nordinarily cleaned with an \\\"auto scrubber\\\" machine, using the\\n\\nSilko-provided degreaser. Describing the general area of his fall,\\n\\nLapointe reported that \\\"[s]ometimes there was a car on the ground,\\n\\nsometimes it was elevated like that so we could clean underneath\\n\\nit. . . . This was a typical scene in a garage. There was always\\n\\nthree or four or five vehicles in the garage at night.\\\" Asked if,\\n\\nin the past, he would \\\"clean up spots or oils or other transmission\\n\\nfluids,\\\" Lapointe responded:\\n\\n Absolutely. You got to understand, this\\n entire floor, there was oil and grease\\n everywhere. People had been working all day\\n long. This particular one was a puddle\\n because the engine had leaked. But typically\\n\\n\\n - 3 -\\n\\f there would be oil and grease everywhere. And\\n the machine with the chemical that they\\n purchased, it was a very good chemical, and\\n the machine did a very good job, but I hadn't\\n gotten to that point yet.\\n\\n In a statement containing six facts in addition to those\\n\\nthe parties agreed upon, see Mass. Loc. R. 56.1, Lapointe asserted\\n\\nthat \\\"he had never encountered stored automotive parts (engines,\\n\\ntransmissions) as he did on the night in question and, therefore,\\n\\nwas not aware of the risk of having those parts leak pools of\\n\\nslippery fluids.\\\" He also stated that Silko's policy called for\\n\\nits employees to \\\"fully drain[]\\\" automotive parts before placing\\n\\nthem for disposal and to cover any spills resulting from drainage\\n\\nwith absorbent mats.\\n\\n In March 2016, nearly three years after his fall and\\n\\ninjury, Lapointe sued Silko in federal court, asserting common law\\n\\nclaims for negligence and failure to warn.1 In the negligence\\n\\ncount, Lapointe alleged that Silko breached its duty to maintain\\n\\nits premises in a reasonably safe condition for persons whose\\n\\npresence was foreseeable, causing the service area floor to be\\n\\n\\\"covered with a substance that presented an unreasonable risk of\\n\\nharm\\\" to him. In the second count, Lapointe alleged that Silko\\n\\nbreached its duty to warn him of that hazardous condition.\\n\\n\\n\\n\\n 1 Lapointe did not report the incident to Silko at the time\\nit occurred, and the dealership first learned of his fall when it\\nreceived the complaint filed in this case.\\n\\n\\n - 4 -\\n\\f Silko moved for summary judgment, which the district\\n\\ncourt granted primarily based on its determination that Silko owed\\n\\nLapointe no duty of care because \\\"the danger posed by the oil on\\n\\nthe floor was objectively open and obvious.\\\" Lapointe v. Silko\\n\\nMotor Sales, Inc., No. 1:16-cv-10532-MPK, 2018 WL 3849855, at *4\\n\\n(Aug. 10, 2018). The court found inapplicable a \\\"narrow exception\\\"\\n\\nto \\\"the open and obvious rule in Massachusetts\\\" that imposes a\\n\\nduty to remedy a blatant danger \\\"where the defendant should have\\n\\nforeseen that injury was likely.\\\" Id. In addition, the court\\n\\nnoted Massachusetts precedent holding that a property owner does\\n\\nnot owe a duty of care to a plaintiff where \\\"the danger presented\\n\\nto the plaintiff was one that he had been hired to cure.\\\" Id.\\n\\n(quoting Ganley v. Percuoco, No. 004043, 2002 WL 389681, at *1-2\\n\\n(Mass. Super. Jan. 7, 2002)).\\n\\n On appeal, Lapointe argues that the summary judgment for\\n\\nSilko should be vacated and the case remanded for trial. He claims\\n\\nthat the district court improperly failed to view the evidence in\\n\\nthe light most favorable to him and \\\"[i]nvad[ed] the province of\\n\\nthe jury by deciding genuine issues of material fact.\\\"\\n\\n II.\\n\\nA. Standard of Review\\n\\n We review a grant of summary judgment de novo, construing\\n\\nthe facts, and drawing all reasonable inferences from those facts,\\n\\nin favor of the non-moving party. Rivera-Rivera v. Medina &\\n\\n\\n - 5 -\\n\\fMedina, Inc., 898 F.3d 77, 87 (1st Cir. 2018). Summary judgment\\n\\nis proper only when \\\"there is no genuine dispute as to any material\\n\\nfact and the movant is entitled to judgment as a matter of law.\\\"\\n\\nFed. R. Civ. P. 56(a). \\\"Facts are material when they have the\\n\\n'potential to affect the outcome of the suit under the applicable\\n\\nlaw.'\\\" Cherkaoui v. City of Quincy, 877 F.3d 14, 23 (1st Cir.\\n\\n2017) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.\\n\\n1996)).\\n\\nB. Applicable Law\\n\\n State law supplies the substantive rules of decision in\\n\\na federal diversity case, Easthampton Congregational Church v.\\n\\nChurch Mut. Ins. Co., 916 F.3d 86, 91 (1st Cir. 2019), and the\\n\\nparties agree that Massachusetts law controls. The parties also\\n\\nagree that the case of Poirier v. Town of Plymouth, 372 N.E.2d 212\\n\\n(Mass. 1978), determines the outcome of this appeal, although they\\n\\nurge different dispositions based on its analysis.\\n\\n In Poirier, the Massachusetts Supreme Judicial Court\\n\\n(\\\"SJC\\\") revisited its longstanding \\\"hidden defect\\\" rule, which\\n\\nplaced an injured employee seeking a remedy from a property owner\\n\\n\\\"in the position of one who has assumed all risks except those\\n\\nthat he can prove were 'hidden.'\\\" Id. at 224. Specifically\\n\\noverruling that precedent as applied to the employee of an\\n\\nindependent contractor, the court held that a property owner's\\n\\nduty to contractors' employees going forward would be \\\"the same as\\n\\n\\n - 6 -\\n\\fthat owed all other lawful visitors on the premises,\\\" i.e., \\\"to\\n\\ntake those steps to prevent injury that are reasonable and\\n\\nappropriate under all the circumstances.\\\" Id. at 227.\\n\\n However, in expanding the duty of property owners to the\\n\\nemployees of independent contractors, the SJC in Poirier retained\\n\\na carve-out for risks \\\"that are inherent in the job and of which\\n\\nthe employee is fully aware.\\\" Id. This limitation reflects the\\n\\ngeneral rule in Massachusetts that a landowner's duty to visitors\\n\\n\\\"does not extend to dangers that would be obvious to persons of\\n\\naverage intelligence.\\\" O'Sullivan v. Shaw, 726 N.E.2d 951, 954\\n\\n(Mass. 2000). In other words -- placing the general rule in\\n\\ncontext -- a person hired to eliminate a hazard ordinarily would\\n\\nbe aware of the potential for injury from that hazardous condition.\\n\\nIn addition, allocating some risk to an individual who agrees to\\n\\nremove a dangerous condition accords with the limits Massachusetts\\n\\nplaces on a landowner's duty to any person lawfully on the\\n\\nproperty: \\\"[A] landowner is 'not obliged to supply a place of\\n\\nmaximum safety, but only one which would be safe to a person who\\n\\nexercises such minimum care as the circumstances reasonably\\n\\nindicate.'\\\" Id. (quoting Lyon v. Morphew, 678 N.E.2d 1306, 1310\\n\\n(Mass. 1997)). An independent contractor hired to remedy a hazard\\n\\nwould reasonably be expected to exercise a different level of\\n\\n\\\"minimum care\\\" concerning the danger than an individual who entered\\n\\nthe property for a different reason and was unaware of the risk.\\n\\n\\n - 7 -\\n\\f III.\\n\\n Lapointe argues that the district court improperly\\n\\ngranted summary judgment for Silko because material factual\\n\\ndisputes remain concerning whether the dealership's failure to\\n\\nclean up the fluid on which he slipped, or to warn him of its\\n\\npresence, constituted actionable negligence. Lapointe asserts\\n\\nthat a jury could find that the hazard was not \\\"open and obvious\\\"\\n\\nbecause the puddle was blocked by the waist-high pallet holding\\n\\nengine parts. Thus, he contends, a jury could find that Silko had\\n\\na duty to eliminate the hazard or, at a minimum, to warn him about\\n\\nit.\\n\\n Massachusetts tort principles, as described above, do\\n\\nnot support Lapointe's contentions. To the contrary, the facts of\\n\\nthis case fall squarely within the carve-out for injury to an\\n\\nindependent contractor resulting from a risk inherent in the job\\n\\nhe was hired to perform. See Poirier, 372 N.E.2d at 227. Jan\\n\\nPro's cleaning obligations at Silko included removing oil and other\\n\\nfluids from the floors of the service area, and Lapointe expressly\\n\\nstated that, in the past, \\\"there was oil and grease everywhere\\\" on\\n\\n\\\"this entire floor.\\\" Indeed, after his fall, Lapointe \\\"swept and\\n\\nscrubbed the floor [because he] had a responsibility to do it.\\\"\\n\\nPut simply, Lapointe's job at Silko -- as he described it --\\n\\nincluded removing slick substances from the floors, and he knew\\n\\n\\n\\n\\n - 8 -\\n\\fthat this hazardous condition might exist anywhere in the service\\n\\narea.\\n\\n Lapointe's attempts to take this case outside\\n\\nMassachusetts' \\\"inherent risks\\\" precedent are unavailing. We\\n\\naccept, for purposes of summary judgment, that it was unusual for\\n\\na pallet of engine parts to be in the service area and that the\\n\\nloaded platform prevented Lapointe from seeing the puddle of\\n\\nautomotive fluid until he was upon it. Those facts, however, do\\n\\nnot elevate the duty of care Silko owed to Lapointe under\\n\\nMassachusetts law. If the pallet obscured a section of the floor,\\n\\nLapointe -- given his experience with \\\"oil and grease everywhere\\\"\\n\\n-- could only reasonably be expected to be more cautious when\\n\\ntraversing that area than on the other occasions he worked at\\n\\nSilko. See O'Sullivan, 726 N.E.2d at 954 (noting the obligation\\n\\nto \\\"exercise[] such minimum care as the circumstances reasonably\\n\\nindicate\\\" (emphasis added) (quoting Lyon, 678 N.E.2d at 1310)).\\n\\nLikewise, the unusual presence of engine parts stacked on a pallet\\n\\ncould only reasonably support a jury finding that Lapointe should\\n\\nhave been more alert to the possibility of automotive fluids on\\n\\nthe floor, not less so.2\\n\\n\\n 2\\n The contrast between the facts of this case and those in\\nPoirier are instructive. The plaintiff in Poirier was an employee\\nof an independent contractor hired to paint a town water tank, and\\nhe was injured when a stationary ladder attached to one of the\\ntanks' legs sprang loose and threw him to the ground. 372 N.E.2d\\nat 216. Upholding a verdict for the plaintiff, the SJC stated\\n\\n\\n - 9 -\\n\\f Nor is Lapointe's view bolstered by the deposition\\n\\ntestimony of two Silko managers, which Lapointe cites in arguing\\n\\nthat a jury could find that the dealership failed \\\"to take those\\n\\nsteps to prevent injury that are reasonable and appropriate under\\n\\nall the circumstances.\\\" Poirier, 372 N.E.2d at 227. Lapointe\\n\\npoints to testimony by Silko's service manager and operations\\n\\ndirector stating that: (1) the pallet was placed in a clean service\\n\\nbay ordinarily used for storage, (2) the dealership requires\\n\\nautomotive parts to be drained before they are stored, and (3) the\\n\\ndealership purchases oil-absorbent mats to cover spills. Lapointe\\n\\ncontends that this testimony would allow a jury to find that he\\n\\nwould not have anticipated a build-up of oil or other fluid near\\n\\nthe pallet and, if one had developed, he would have expected Silko\\n\\neither to cover it with a mat or otherwise eliminate the hazard.\\n\\n The managers' testimony might be significant in\\n\\nassessing Silko's duty to other persons -- i.e., where the duty is\\n\\ngenerally one of reasonable care, see O'Sullivan, 726 N.E.2d at\\n\\n954 -- but the dealership's methods for storing automotive parts\\n\\nand responding to fluid leaks do not create a duty to Lapointe\\n\\nwhere the hazard he encountered \\\"was one that he had been hired to\\n\\n\\n\\n\\nthat the jury could \\\"reasonably find the defendant negligent in\\nfailing to prevent the dangerous condition presented by the\\ninadequately secured ladder.\\\" Id. at 221. Significantly, the\\nplaintiff in Poirier was only hired to paint the water tank, not\\nto alleviate \\\"the dangerous condition\\\" that caused his injury.\\n\\n\\n - 10 -\\n\\fcure,\\\" Ganley, 2002 WL 389681, at *2. That is, Silko's efforts to\\n\\nminimize the risk from leaking automotive fluids by draining\\n\\nequipment and, if necessary, placing mats over spills does not\\n\\nmean that Lapointe could expect oil-free floors. Rather, his job\\n\\nwas to clean up slick spots everywhere in the service area, a\\n\\nresponsibility he acknowledged in his deposition. Lapointe thus\\n\\n\\\"knowingly and voluntarily undert[ook]\\\" the risk of encountering\\n\\nerrant fluids on the floor, Poirier, 372 N.E.2d at 227, and the\\n\\nrecord reveals no basis for shifting to Silko the risk\\n\\nMassachusetts law allocates to him.3\\n\\n In sum, Poirier's adoption of ordinary negligence\\n\\nprinciples for the employees of independent contractors does not\\n\\nentitle Lapointe to a jury determination on whether Silko breached\\n\\n\\n\\n\\n 3 Lapointe asserts that his role at Silko differed materially\\nfrom that of independent contractors in other cases because\\n\\\"[d]efendant did not hire [p]laintiff to remedy this particular\\nspill but, rather, to clean the floor area in the service\\ndepartment.\\\" Appellant's Br. at 21 (footnote omitted). We find\\nno significance in that distinction. The hazard at issue here, as\\nLapointe described it in his deposition, was \\\"oil and grease\\neverywhere.\\\"\\n In addition, this case is distinguishable from Callahan,\\nwhich Lapointe highlights in support of his position. There, an\\nindependent contractor engaged to remove debris from a boiler was\\ninjured when he slipped on water that had accumulated because of\\na malfunctioning pump. 509 N.E.2d at 1209. In upholding the trial\\ncourt's rejection of the defendant's request for an \\\"inherent risk\\\"\\ninstruction, the appeals court observed that \\\"removing water from\\nthe drainage trenches and risks inherent in that activity were not\\npart of the case.\\\" Id. at 1210. In other words, unlike this case,\\nCallahan did not involve an injury caused \\\"by a condition [the\\nplaintiff] had been hired to remedy.\\\" Id.\\n\\n\\n - 11 -\\n\\fa duty of care to him. On the record before us, with Lapointe\\n\\nacknowledging that oil could be anywhere on the floor,\\n\\nMassachusetts law -- as set forth in Poirier -- placed the risk of\\n\\ninjury from a slick surface on the independent contractor hired to\\n\\nremove that \\\"very hazard.\\\" Callahan, 509 N.E.2d at 1210.\\n\\n For the foregoing reasons, the district court's grant of\\n\\nsummary judgment for defendant Silko is affirmed.\\n\\n So ordered.\\n\\n\\n\\n\\n - 12 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4406118/\", \"author_raw\": \"LIPEZ, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HOWARD"},"judge2":{"kind":"string","value":"LYNCH"},"judge3":{"kind":"string","value":"LIPEZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4628865/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Raymond LAPOINTE, Plaintiff, Appellant, v. SILKO MOTOR SALES, INC., Defendant, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-12\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1848\n\n RAYMOND LAPOINTE,\n\n Plaintiff, Appellant,\n\n v.\n\n SILKO MOTOR SALES, INC.,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. M. Page Kelley, Magistrate Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Lynch and Lipez, Circuit Judges.\n\n\n David J. Oliveira for appellant.\n John F. Gleavy, with whom Lynch & Lynch was on brief, for\nappellee.\n\n\n June 12, 2019\n\f LIPEZ, Circuit Judge. In this diversity tort action,\n\nRaymond Lapointe seeks damages for a severe knee injury sustained\n\nwhen he slipped on fluid at an auto dealership that his company\n\nhad been hired to clean. Finding that the dealership neither had\n\na duty to warn Lapointe of the puddle nor acted negligently in\n\nfailing to address it, the district court granted summary judgment\n\nfor defendant Silko Motor Sales, Inc. After careful review of the\n\nfacts and the law, we affirm. The district court properly found\n\nthat Silko could not be found liable because Lapointe was \"hurt by\n\nthe very hazard he was required to remedy.\" Callahan v. Bos.\n\nEdison Co., 509 N.E.2d 1208, 1210 (Mass. 1987).\n\n I.\n\n We summarize the relevant facts, which are undisputed\n\nunless otherwise noted. Silko hired Jan-Pro Cleaning Systems (\"Jan\n\nPro\") to clean its dealership, and the parties' written agreement\n\nspecified that the cleaning tasks included \"[m]achine scrub[bing]\n\nall service floors\" six times per week, using a degreasing chemical\n\nprovided by the dealership. At the time of his fall in July 2013,\n\nLapointe was a regional manager for Jan Pro, where his\n\nresponsibilities included filling in for the company's franchise\n\nowners when they were sick. On the evening that Lapointe slipped,\n\nhe was substituting at Silko for a franchisee, as he had done there\n\non previous occasions.\n\n\n\n\n - 2 -\n\f Lapointe cleaned other parts of the Silko facility\n\nbefore entering the service area and, before scrubbing the floors\n\nthere, he decided to dispose of trash in a dumpster outside. He\n\nheaded toward the button that opened the service area garage door.\n\nAs he walked around a pallet holding engine parts, he lost his\n\nbalance and fell. Lapointe then noticed an accumulation of oil or\n\ntransmission fluid on the floor near the pallet, which he estimated\n\nto be about eight inches in diameter and one-sixteenth of an inch\n\ndeep. After his fall, Lapointe completed his work at the\n\ndealership, including cleaning the substance from the floor where\n\nhe fell.\n\n Lapointe testified in his deposition that the pallet was\n\nwaist high and placed on the floor in an area that Jan Pro\n\nordinarily cleaned with an \"auto scrubber\" machine, using the\n\nSilko-provided degreaser. Describing the general area of his fall,\n\nLapointe reported that \"[s]ometimes there was a car on the ground,\n\nsometimes it was elevated like that so we could clean underneath\n\nit. . . . This was a typical scene in a garage. There was always\n\nthree or four or five vehicles in the garage at night.\" Asked if,\n\nin the past, he would \"clean up spots or oils or other transmission\n\nfluids,\" Lapointe responded:\n\n Absolutely. You got to understand, this\n entire floor, there was oil and grease\n everywhere. People had been working all day\n long. This particular one was a puddle\n because the engine had leaked. But typically\n\n\n - 3 -\n\f there would be oil and grease everywhere. And\n the machine with the chemical that they\n purchased, it was a very good chemical, and\n the machine did a very good job, but I hadn't\n gotten to that point yet.\n\n In a statement containing six facts in addition to those\n\nthe parties agreed upon, see Mass. Loc. R. 56.1, Lapointe asserted\n\nthat \"he had never encountered stored automotive parts (engines,\n\ntransmissions) as he did on the night in question and, therefore,\n\nwas not aware of the risk of having those parts leak pools of\n\nslippery fluids.\" He also stated that Silko's policy called for\n\nits employees to \"fully drain[]\" automotive parts before placing\n\nthem for disposal and to cover any spills resulting from drainage\n\nwith absorbent mats.\n\n In March 2016, nearly three years after his fall and\n\ninjury, Lapointe sued Silko in federal court, asserting common law\n\nclaims for negligence and failure to warn.1 In the negligence\n\ncount, Lapointe alleged that Silko breached its duty to maintain\n\nits premises in a reasonably safe condition for persons whose\n\npresence was foreseeable, causing the service area floor to be\n\n\"covered with a substance that presented an unreasonable risk of\n\nharm\" to him. In the second count, Lapointe alleged that Silko\n\nbreached its duty to warn him of that hazardous condition.\n\n\n\n\n 1 Lapointe did not report the incident to Silko at the time\nit occurred, and the dealership first learned of his fall when it\nreceived the complaint filed in this case.\n\n\n - 4 -\n\f Silko moved for summary judgment, which the district\n\ncourt granted primarily based on its determination that Silko owed\n\nLapointe no duty of care because \"the danger posed by the oil on\n\nthe floor was objectively open and obvious.\" Lapointe v. Silko\n\nMotor Sales, Inc., No. 1:16-cv-10532-MPK, 2018 WL 3849855, at *4\n\n(Aug. 10, 2018). The court found inapplicable a \"narrow exception\"\n\nto \"the open and obvious rule in Massachusetts\" that imposes a\n\nduty to remedy a blatant danger \"where the defendant should have\n\nforeseen that injury was likely.\" Id. In addition, the court\n\nnoted Massachusetts precedent holding that a property owner does\n\nnot owe a duty of care to a plaintiff where \"the danger presented\n\nto the plaintiff was one that he had been hired to cure.\" Id.\n\n(quoting Ganley v. Percuoco, No. 004043, 2002 WL 389681, at *1-2\n\n(Mass. Super. Jan. 7, 2002)).\n\n On appeal, Lapointe argues that the summary judgment for\n\nSilko should be vacated and the case remanded for trial. He claims\n\nthat the district court improperly failed to view the evidence in\n\nthe light most favorable to him and \"[i]nvad[ed] the province of\n\nthe jury by deciding genuine issues of material fact.\"\n\n II.\n\nA. Standard of Review\n\n We review a grant of summary judgment de novo, construing\n\nthe facts, and drawing all reasonable inferences from those facts,\n\nin favor of the non-moving party. Rivera-Rivera v. Medina &\n\n\n - 5 -\n\fMedina, Inc., 898 F.3d 77, 87 (1st Cir. 2018). Summary judgment\n\nis proper only when \"there is no genuine dispute as to any material\n\nfact and the movant is entitled to judgment as a matter of law.\"\n\nFed. R. Civ. P. 56(a). \"Facts are material when they have the\n\n'potential to affect the outcome of the suit under the applicable\n\nlaw.'\" Cherkaoui v. City of Quincy, 877 F.3d 14, 23 (1st Cir.\n\n2017) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.\n\n1996)).\n\nB. Applicable Law\n\n State law supplies the substantive rules of decision in\n\na federal diversity case, Easthampton Congregational Church v.\n\nChurch Mut. Ins. Co., 916 F.3d 86, 91 (1st Cir. 2019), and the\n\nparties agree that Massachusetts law controls. The parties also\n\nagree that the case of Poirier v. Town of Plymouth, 372 N.E.2d 212\n\n(Mass. 1978), determines the outcome of this appeal, although they\n\nurge different dispositions based on its analysis.\n\n In Poirier, the Massachusetts Supreme Judicial Court\n\n(\"SJC\") revisited its longstanding \"hidden defect\" rule, which\n\nplaced an injured employee seeking a remedy from a property owner\n\n\"in the position of one who has assumed all risks except those\n\nthat he can prove were 'hidden.'\" Id. at 224. Specifically\n\noverruling that precedent as applied to the employee of an\n\nindependent contractor, the court held that a property owner's\n\nduty to contractors' employees going forward would be \"the same as\n\n\n - 6 -\n\fthat owed all other lawful visitors on the premises,\" i.e., \"to\n\ntake those steps to prevent injury that are reasonable and\n\nappropriate under all the circumstances.\" Id. at 227.\n\n However, in expanding the duty of property owners to the\n\nemployees of independent contractors, the SJC in Poirier retained\n\na carve-out for risks \"that are inherent in the job and of which\n\nthe employee is fully aware.\" Id. This limitation reflects the\n\ngeneral rule in Massachusetts that a landowner's duty to visitors\n\n\"does not extend to dangers that would be obvious to persons of\n\naverage intelligence.\" O'Sullivan v. Shaw, 726 N.E.2d 951, 954\n\n(Mass. 2000). In other words -- placing the general rule in\n\ncontext -- a person hired to eliminate a hazard ordinarily would\n\nbe aware of the potential for injury from that hazardous condition.\n\nIn addition, allocating some risk to an individual who agrees to\n\nremove a dangerous condition accords with the limits Massachusetts\n\nplaces on a landowner's duty to any person lawfully on the\n\nproperty: \"[A] landowner is 'not obliged to supply a place of\n\nmaximum safety, but only one which would be safe to a person who\n\nexercises such minimum care as the circumstances reasonably\n\nindicate.'\" Id. (quoting Lyon v. Morphew, 678 N.E.2d 1306, 1310\n\n(Mass. 1997)). An independent contractor hired to remedy a hazard\n\nwould reasonably be expected to exercise a different level of\n\n\"minimum care\" concerning the danger than an individual who entered\n\nthe property for a different reason and was unaware of the risk.\n\n\n - 7 -\n\f III.\n\n Lapointe argues that the district court improperly\n\ngranted summary judgment for Silko because material factual\n\ndisputes remain concerning whether the dealership's failure to\n\nclean up the fluid on which he slipped, or to warn him of its\n\npresence, constituted actionable negligence. Lapointe asserts\n\nthat a jury could find that the hazard was not \"open and obvious\"\n\nbecause the puddle was blocked by the waist-high pallet holding\n\nengine parts. Thus, he contends, a jury could find that Silko had\n\na duty to eliminate the hazard or, at a minimum, to warn him about\n\nit.\n\n Massachusetts tort principles, as described above, do\n\nnot support Lapointe's contentions. To the contrary, the facts of\n\nthis case fall squarely within the carve-out for injury to an\n\nindependent contractor resulting from a risk inherent in the job\n\nhe was hired to perform. See Poirier, 372 N.E.2d at 227. Jan\n\nPro's cleaning obligations at Silko included removing oil and other\n\nfluids from the floors of the service area, and Lapointe expressly\n\nstated that, in the past, \"there was oil and grease everywhere\" on\n\n\"this entire floor.\" Indeed, after his fall, Lapointe \"swept and\n\nscrubbed the floor [because he] had a responsibility to do it.\"\n\nPut simply, Lapointe's job at Silko -- as he described it --\n\nincluded removing slick substances from the floors, and he knew\n\n\n\n\n - 8 -\n\fthat this hazardous condition might exist anywhere in the service\n\narea.\n\n Lapointe's attempts to take this case outside\n\nMassachusetts' \"inherent risks\" precedent are unavailing. We\n\naccept, for purposes of summary judgment, that it was unusual for\n\na pallet of engine parts to be in the service area and that the\n\nloaded platform prevented Lapointe from seeing the puddle of\n\nautomotive fluid until he was upon it. Those facts, however, do\n\nnot elevate the duty of care Silko owed to Lapointe under\n\nMassachusetts law. If the pallet obscured a section of the floor,\n\nLapointe -- given his experience with \"oil and grease everywhere\"\n\n-- could only reasonably be expected to be more cautious when\n\ntraversing that area than on the other occasions he worked at\n\nSilko. See O'Sullivan, 726 N.E.2d at 954 (noting the obligation\n\nto \"exercise[] such minimum care as the circumstances reasonably\n\nindicate\" (emphasis added) (quoting Lyon, 678 N.E.2d at 1310)).\n\nLikewise, the unusual presence of engine parts stacked on a pallet\n\ncould only reasonably support a jury finding that Lapointe should\n\nhave been more alert to the possibility of automotive fluids on\n\nthe floor, not less so.2\n\n\n 2\n The contrast between the facts of this case and those in\nPoirier are instructive. The plaintiff in Poirier was an employee\nof an independent contractor hired to paint a town water tank, and\nhe was injured when a stationary ladder attached to one of the\ntanks' legs sprang loose and threw him to the ground. 372 N.E.2d\nat 216. Upholding a verdict for the plaintiff, the SJC stated\n\n\n - 9 -\n\f Nor is Lapointe's view bolstered by the deposition\n\ntestimony of two Silko managers, which Lapointe cites in arguing\n\nthat a jury could find that the dealership failed \"to take those\n\nsteps to prevent injury that are reasonable and appropriate under\n\nall the circumstances.\" Poirier, 372 N.E.2d at 227. Lapointe\n\npoints to testimony by Silko's service manager and operations\n\ndirector stating that: (1) the pallet was placed in a clean service\n\nbay ordinarily used for storage, (2) the dealership requires\n\nautomotive parts to be drained before they are stored, and (3) the\n\ndealership purchases oil-absorbent mats to cover spills. Lapointe\n\ncontends that this testimony would allow a jury to find that he\n\nwould not have anticipated a build-up of oil or other fluid near\n\nthe pallet and, if one had developed, he would have expected Silko\n\neither to cover it with a mat or otherwise eliminate the hazard.\n\n The managers' testimony might be significant in\n\nassessing Silko's duty to other persons -- i.e., where the duty is\n\ngenerally one of reasonable care, see O'Sullivan, 726 N.E.2d at\n\n954 -- but the dealership's methods for storing automotive parts\n\nand responding to fluid leaks do not create a duty to Lapointe\n\nwhere the hazard he encountered \"was one that he had been hired to\n\n\n\n\nthat the jury could \"reasonably find the defendant negligent in\nfailing to prevent the dangerous condition presented by the\ninadequately secured ladder.\" Id. at 221. Significantly, the\nplaintiff in Poirier was only hired to paint the water tank, not\nto alleviate \"the dangerous condition\" that caused his injury.\n\n\n - 10 -\n\fcure,\" Ganley, 2002 WL 389681, at *2. That is, Silko's efforts to\n\nminimize the risk from leaking automotive fluids by draining\n\nequipment and, if necessary, placing mats over spills does not\n\nmean that Lapointe could expect oil-free floors. Rather, his job\n\nwas to clean up slick spots everywhere in the service area, a\n\nresponsibility he acknowledged in his deposition. Lapointe thus\n\n\"knowingly and voluntarily undert[ook]\" the risk of encountering\n\nerrant fluids on the floor, Poirier, 372 N.E.2d at 227, and the\n\nrecord reveals no basis for shifting to Silko the risk\n\nMassachusetts law allocates to him.3\n\n In sum, Poirier's adoption of ordinary negligence\n\nprinciples for the employees of independent contractors does not\n\nentitle Lapointe to a jury determination on whether Silko breached\n\n\n\n\n 3 Lapointe asserts that his role at Silko differed materially\nfrom that of independent contractors in other cases because\n\"[d]efendant did not hire [p]laintiff to remedy this particular\nspill but, rather, to clean the floor area in the service\ndepartment.\" Appellant's Br. at 21 (footnote omitted). We find\nno significance in that distinction. The hazard at issue here, as\nLapointe described it in his deposition, was \"oil and grease\neverywhere.\"\n In addition, this case is distinguishable from Callahan,\nwhich Lapointe highlights in support of his position. There, an\nindependent contractor engaged to remove debris from a boiler was\ninjured when he slipped on water that had accumulated because of\na malfunctioning pump. 509 N.E.2d at 1209. In upholding the trial\ncourt's rejection of the defendant's request for an \"inherent risk\"\ninstruction, the appeals court observed that \"removing water from\nthe drainage trenches and risks inherent in that activity were not\npart of the case.\" Id. at 1210. In other words, unlike this case,\nCallahan did not involve an injury caused \"by a condition [the\nplaintiff] had been hired to remedy.\" Id.\n\n\n - 11 -\n\fa duty of care to him. On the record before us, with Lapointe\n\nacknowledging that oil could be anywhere on the floor,\n\nMassachusetts law -- as set forth in Poirier -- placed the risk of\n\ninjury from a slick surface on the independent contractor hired to\n\nremove that \"very hazard.\" Callahan, 509 N.E.2d at 1210.\n\n For the foregoing reasons, the district court's grant of\n\nsummary judgment for defendant Silko is affirmed.\n\n So ordered.\n\n\n\n\n - 12 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Raymond LAPOINTE, Plaintiff, Appellant, v. SILKO MOTOR SALES, INC., Defendant, Appellee.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-12\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1848\\n\\n RAYMOND LAPOINTE,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n SILKO MOTOR SALES, INC.,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. M. Page Kelley, Magistrate Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Lynch and Lipez, Circuit Judges.\\n\\n\\n David J. Oliveira for appellant.\\n John F. Gleavy, with whom Lynch & Lynch was on brief, for\\nappellee.\\n\\n\\n June 12, 2019\\n\\f LIPEZ, Circuit Judge. In this diversity tort action,\\n\\nRaymond Lapointe seeks damages for a severe knee injury sustained\\n\\nwhen he slipped on fluid at an auto dealership that his company\\n\\nhad been hired to clean. Finding that the dealership neither had\\n\\na duty to warn Lapointe of the puddle nor acted negligently in\\n\\nfailing to address it, the district court granted summary judgment\\n\\nfor defendant Silko Motor Sales, Inc. After careful review of the\\n\\nfacts and the law, we affirm. The district court properly found\\n\\nthat Silko could not be found liable because Lapointe was \\\"hurt by\\n\\nthe very hazard he was required to remedy.\\\" Callahan v. Bos.\\n\\nEdison Co., 509 N.E.2d 1208, 1210 (Mass. 1987).\\n\\n I.\\n\\n We summarize the relevant facts, which are undisputed\\n\\nunless otherwise noted. Silko hired Jan-Pro Cleaning Systems (\\\"Jan\\n\\nPro\\\") to clean its dealership, and the parties' written agreement\\n\\nspecified that the cleaning tasks included \\\"[m]achine scrub[bing]\\n\\nall service floors\\\" six times per week, using a degreasing chemical\\n\\nprovided by the dealership. At the time of his fall in July 2013,\\n\\nLapointe was a regional manager for Jan Pro, where his\\n\\nresponsibilities included filling in for the company's franchise\\n\\nowners when they were sick. On the evening that Lapointe slipped,\\n\\nhe was substituting at Silko for a franchisee, as he had done there\\n\\non previous occasions.\\n\\n\\n\\n\\n - 2 -\\n\\f Lapointe cleaned other parts of the Silko facility\\n\\nbefore entering the service area and, before scrubbing the floors\\n\\nthere, he decided to dispose of trash in a dumpster outside. He\\n\\nheaded toward the button that opened the service area garage door.\\n\\nAs he walked around a pallet holding engine parts, he lost his\\n\\nbalance and fell. Lapointe then noticed an accumulation of oil or\\n\\ntransmission fluid on the floor near the pallet, which he estimated\\n\\nto be about eight inches in diameter and one-sixteenth of an inch\\n\\ndeep. After his fall, Lapointe completed his work at the\\n\\ndealership, including cleaning the substance from the floor where\\n\\nhe fell.\\n\\n Lapointe testified in his deposition that the pallet was\\n\\nwaist high and placed on the floor in an area that Jan Pro\\n\\nordinarily cleaned with an \\\"auto scrubber\\\" machine, using the\\n\\nSilko-provided degreaser. Describing the general area of his fall,\\n\\nLapointe reported that \\\"[s]ometimes there was a car on the ground,\\n\\nsometimes it was elevated like that so we could clean underneath\\n\\nit. . . . This was a typical scene in a garage. There was always\\n\\nthree or four or five vehicles in the garage at night.\\\" Asked if,\\n\\nin the past, he would \\\"clean up spots or oils or other transmission\\n\\nfluids,\\\" Lapointe responded:\\n\\n Absolutely. You got to understand, this\\n entire floor, there was oil and grease\\n everywhere. People had been working all day\\n long. This particular one was a puddle\\n because the engine had leaked. But typically\\n\\n\\n - 3 -\\n\\f there would be oil and grease everywhere. And\\n the machine with the chemical that they\\n purchased, it was a very good chemical, and\\n the machine did a very good job, but I hadn't\\n gotten to that point yet.\\n\\n In a statement containing six facts in addition to those\\n\\nthe parties agreed upon, see Mass. Loc. R. 56.1, Lapointe asserted\\n\\nthat \\\"he had never encountered stored automotive parts (engines,\\n\\ntransmissions) as he did on the night in question and, therefore,\\n\\nwas not aware of the risk of having those parts leak pools of\\n\\nslippery fluids.\\\" He also stated that Silko's policy called for\\n\\nits employees to \\\"fully drain[]\\\" automotive parts before placing\\n\\nthem for disposal and to cover any spills resulting from drainage\\n\\nwith absorbent mats.\\n\\n In March 2016, nearly three years after his fall and\\n\\ninjury, Lapointe sued Silko in federal court, asserting common law\\n\\nclaims for negligence and failure to warn.1 In the negligence\\n\\ncount, Lapointe alleged that Silko breached its duty to maintain\\n\\nits premises in a reasonably safe condition for persons whose\\n\\npresence was foreseeable, causing the service area floor to be\\n\\n\\\"covered with a substance that presented an unreasonable risk of\\n\\nharm\\\" to him. In the second count, Lapointe alleged that Silko\\n\\nbreached its duty to warn him of that hazardous condition.\\n\\n\\n\\n\\n 1 Lapointe did not report the incident to Silko at the time\\nit occurred, and the dealership first learned of his fall when it\\nreceived the complaint filed in this case.\\n\\n\\n - 4 -\\n\\f Silko moved for summary judgment, which the district\\n\\ncourt granted primarily based on its determination that Silko owed\\n\\nLapointe no duty of care because \\\"the danger posed by the oil on\\n\\nthe floor was objectively open and obvious.\\\" Lapointe v. Silko\\n\\nMotor Sales, Inc., No. 1:16-cv-10532-MPK, 2018 WL 3849855, at *4\\n\\n(Aug. 10, 2018). The court found inapplicable a \\\"narrow exception\\\"\\n\\nto \\\"the open and obvious rule in Massachusetts\\\" that imposes a\\n\\nduty to remedy a blatant danger \\\"where the defendant should have\\n\\nforeseen that injury was likely.\\\" Id. In addition, the court\\n\\nnoted Massachusetts precedent holding that a property owner does\\n\\nnot owe a duty of care to a plaintiff where \\\"the danger presented\\n\\nto the plaintiff was one that he had been hired to cure.\\\" Id.\\n\\n(quoting Ganley v. Percuoco, No. 004043, 2002 WL 389681, at *1-2\\n\\n(Mass. Super. Jan. 7, 2002)).\\n\\n On appeal, Lapointe argues that the summary judgment for\\n\\nSilko should be vacated and the case remanded for trial. He claims\\n\\nthat the district court improperly failed to view the evidence in\\n\\nthe light most favorable to him and \\\"[i]nvad[ed] the province of\\n\\nthe jury by deciding genuine issues of material fact.\\\"\\n\\n II.\\n\\nA. Standard of Review\\n\\n We review a grant of summary judgment de novo, construing\\n\\nthe facts, and drawing all reasonable inferences from those facts,\\n\\nin favor of the non-moving party. Rivera-Rivera v. Medina &\\n\\n\\n - 5 -\\n\\fMedina, Inc., 898 F.3d 77, 87 (1st Cir. 2018). Summary judgment\\n\\nis proper only when \\\"there is no genuine dispute as to any material\\n\\nfact and the movant is entitled to judgment as a matter of law.\\\"\\n\\nFed. R. Civ. P. 56(a). \\\"Facts are material when they have the\\n\\n'potential to affect the outcome of the suit under the applicable\\n\\nlaw.'\\\" Cherkaoui v. City of Quincy, 877 F.3d 14, 23 (1st Cir.\\n\\n2017) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.\\n\\n1996)).\\n\\nB. Applicable Law\\n\\n State law supplies the substantive rules of decision in\\n\\na federal diversity case, Easthampton Congregational Church v.\\n\\nChurch Mut. Ins. Co., 916 F.3d 86, 91 (1st Cir. 2019), and the\\n\\nparties agree that Massachusetts law controls. The parties also\\n\\nagree that the case of Poirier v. Town of Plymouth, 372 N.E.2d 212\\n\\n(Mass. 1978), determines the outcome of this appeal, although they\\n\\nurge different dispositions based on its analysis.\\n\\n In Poirier, the Massachusetts Supreme Judicial Court\\n\\n(\\\"SJC\\\") revisited its longstanding \\\"hidden defect\\\" rule, which\\n\\nplaced an injured employee seeking a remedy from a property owner\\n\\n\\\"in the position of one who has assumed all risks except those\\n\\nthat he can prove were 'hidden.'\\\" Id. at 224. Specifically\\n\\noverruling that precedent as applied to the employee of an\\n\\nindependent contractor, the court held that a property owner's\\n\\nduty to contractors' employees going forward would be \\\"the same as\\n\\n\\n - 6 -\\n\\fthat owed all other lawful visitors on the premises,\\\" i.e., \\\"to\\n\\ntake those steps to prevent injury that are reasonable and\\n\\nappropriate under all the circumstances.\\\" Id. at 227.\\n\\n However, in expanding the duty of property owners to the\\n\\nemployees of independent contractors, the SJC in Poirier retained\\n\\na carve-out for risks \\\"that are inherent in the job and of which\\n\\nthe employee is fully aware.\\\" Id. This limitation reflects the\\n\\ngeneral rule in Massachusetts that a landowner's duty to visitors\\n\\n\\\"does not extend to dangers that would be obvious to persons of\\n\\naverage intelligence.\\\" O'Sullivan v. Shaw, 726 N.E.2d 951, 954\\n\\n(Mass. 2000). In other words -- placing the general rule in\\n\\ncontext -- a person hired to eliminate a hazard ordinarily would\\n\\nbe aware of the potential for injury from that hazardous condition.\\n\\nIn addition, allocating some risk to an individual who agrees to\\n\\nremove a dangerous condition accords with the limits Massachusetts\\n\\nplaces on a landowner's duty to any person lawfully on the\\n\\nproperty: \\\"[A] landowner is 'not obliged to supply a place of\\n\\nmaximum safety, but only one which would be safe to a person who\\n\\nexercises such minimum care as the circumstances reasonably\\n\\nindicate.'\\\" Id. (quoting Lyon v. Morphew, 678 N.E.2d 1306, 1310\\n\\n(Mass. 1997)). An independent contractor hired to remedy a hazard\\n\\nwould reasonably be expected to exercise a different level of\\n\\n\\\"minimum care\\\" concerning the danger than an individual who entered\\n\\nthe property for a different reason and was unaware of the risk.\\n\\n\\n - 7 -\\n\\f III.\\n\\n Lapointe argues that the district court improperly\\n\\ngranted summary judgment for Silko because material factual\\n\\ndisputes remain concerning whether the dealership's failure to\\n\\nclean up the fluid on which he slipped, or to warn him of its\\n\\npresence, constituted actionable negligence. Lapointe asserts\\n\\nthat a jury could find that the hazard was not \\\"open and obvious\\\"\\n\\nbecause the puddle was blocked by the waist-high pallet holding\\n\\nengine parts. Thus, he contends, a jury could find that Silko had\\n\\na duty to eliminate the hazard or, at a minimum, to warn him about\\n\\nit.\\n\\n Massachusetts tort principles, as described above, do\\n\\nnot support Lapointe's contentions. To the contrary, the facts of\\n\\nthis case fall squarely within the carve-out for injury to an\\n\\nindependent contractor resulting from a risk inherent in the job\\n\\nhe was hired to perform. See Poirier, 372 N.E.2d at 227. Jan\\n\\nPro's cleaning obligations at Silko included removing oil and other\\n\\nfluids from the floors of the service area, and Lapointe expressly\\n\\nstated that, in the past, \\\"there was oil and grease everywhere\\\" on\\n\\n\\\"this entire floor.\\\" Indeed, after his fall, Lapointe \\\"swept and\\n\\nscrubbed the floor [because he] had a responsibility to do it.\\\"\\n\\nPut simply, Lapointe's job at Silko -- as he described it --\\n\\nincluded removing slick substances from the floors, and he knew\\n\\n\\n\\n\\n - 8 -\\n\\fthat this hazardous condition might exist anywhere in the service\\n\\narea.\\n\\n Lapointe's attempts to take this case outside\\n\\nMassachusetts' \\\"inherent risks\\\" precedent are unavailing. We\\n\\naccept, for purposes of summary judgment, that it was unusual for\\n\\na pallet of engine parts to be in the service area and that the\\n\\nloaded platform prevented Lapointe from seeing the puddle of\\n\\nautomotive fluid until he was upon it. Those facts, however, do\\n\\nnot elevate the duty of care Silko owed to Lapointe under\\n\\nMassachusetts law. If the pallet obscured a section of the floor,\\n\\nLapointe -- given his experience with \\\"oil and grease everywhere\\\"\\n\\n-- could only reasonably be expected to be more cautious when\\n\\ntraversing that area than on the other occasions he worked at\\n\\nSilko. See O'Sullivan, 726 N.E.2d at 954 (noting the obligation\\n\\nto \\\"exercise[] such minimum care as the circumstances reasonably\\n\\nindicate\\\" (emphasis added) (quoting Lyon, 678 N.E.2d at 1310)).\\n\\nLikewise, the unusual presence of engine parts stacked on a pallet\\n\\ncould only reasonably support a jury finding that Lapointe should\\n\\nhave been more alert to the possibility of automotive fluids on\\n\\nthe floor, not less so.2\\n\\n\\n 2\\n The contrast between the facts of this case and those in\\nPoirier are instructive. The plaintiff in Poirier was an employee\\nof an independent contractor hired to paint a town water tank, and\\nhe was injured when a stationary ladder attached to one of the\\ntanks' legs sprang loose and threw him to the ground. 372 N.E.2d\\nat 216. Upholding a verdict for the plaintiff, the SJC stated\\n\\n\\n - 9 -\\n\\f Nor is Lapointe's view bolstered by the deposition\\n\\ntestimony of two Silko managers, which Lapointe cites in arguing\\n\\nthat a jury could find that the dealership failed \\\"to take those\\n\\nsteps to prevent injury that are reasonable and appropriate under\\n\\nall the circumstances.\\\" Poirier, 372 N.E.2d at 227. Lapointe\\n\\npoints to testimony by Silko's service manager and operations\\n\\ndirector stating that: (1) the pallet was placed in a clean service\\n\\nbay ordinarily used for storage, (2) the dealership requires\\n\\nautomotive parts to be drained before they are stored, and (3) the\\n\\ndealership purchases oil-absorbent mats to cover spills. Lapointe\\n\\ncontends that this testimony would allow a jury to find that he\\n\\nwould not have anticipated a build-up of oil or other fluid near\\n\\nthe pallet and, if one had developed, he would have expected Silko\\n\\neither to cover it with a mat or otherwise eliminate the hazard.\\n\\n The managers' testimony might be significant in\\n\\nassessing Silko's duty to other persons -- i.e., where the duty is\\n\\ngenerally one of reasonable care, see O'Sullivan, 726 N.E.2d at\\n\\n954 -- but the dealership's methods for storing automotive parts\\n\\nand responding to fluid leaks do not create a duty to Lapointe\\n\\nwhere the hazard he encountered \\\"was one that he had been hired to\\n\\n\\n\\n\\nthat the jury could \\\"reasonably find the defendant negligent in\\nfailing to prevent the dangerous condition presented by the\\ninadequately secured ladder.\\\" Id. at 221. Significantly, the\\nplaintiff in Poirier was only hired to paint the water tank, not\\nto alleviate \\\"the dangerous condition\\\" that caused his injury.\\n\\n\\n - 10 -\\n\\fcure,\\\" Ganley, 2002 WL 389681, at *2. That is, Silko's efforts to\\n\\nminimize the risk from leaking automotive fluids by draining\\n\\nequipment and, if necessary, placing mats over spills does not\\n\\nmean that Lapointe could expect oil-free floors. Rather, his job\\n\\nwas to clean up slick spots everywhere in the service area, a\\n\\nresponsibility he acknowledged in his deposition. Lapointe thus\\n\\n\\\"knowingly and voluntarily undert[ook]\\\" the risk of encountering\\n\\nerrant fluids on the floor, Poirier, 372 N.E.2d at 227, and the\\n\\nrecord reveals no basis for shifting to Silko the risk\\n\\nMassachusetts law allocates to him.3\\n\\n In sum, Poirier's adoption of ordinary negligence\\n\\nprinciples for the employees of independent contractors does not\\n\\nentitle Lapointe to a jury determination on whether Silko breached\\n\\n\\n\\n\\n 3 Lapointe asserts that his role at Silko differed materially\\nfrom that of independent contractors in other cases because\\n\\\"[d]efendant did not hire [p]laintiff to remedy this particular\\nspill but, rather, to clean the floor area in the service\\ndepartment.\\\" Appellant's Br. at 21 (footnote omitted). We find\\nno significance in that distinction. The hazard at issue here, as\\nLapointe described it in his deposition, was \\\"oil and grease\\neverywhere.\\\"\\n In addition, this case is distinguishable from Callahan,\\nwhich Lapointe highlights in support of his position. There, an\\nindependent contractor engaged to remove debris from a boiler was\\ninjured when he slipped on water that had accumulated because of\\na malfunctioning pump. 509 N.E.2d at 1209. In upholding the trial\\ncourt's rejection of the defendant's request for an \\\"inherent risk\\\"\\ninstruction, the appeals court observed that \\\"removing water from\\nthe drainage trenches and risks inherent in that activity were not\\npart of the case.\\\" Id. at 1210. In other words, unlike this case,\\nCallahan did not involve an injury caused \\\"by a condition [the\\nplaintiff] had been hired to remedy.\\\" Id.\\n\\n\\n - 11 -\\n\\fa duty of care to him. On the record before us, with Lapointe\\n\\nacknowledging that oil could be anywhere on the floor,\\n\\nMassachusetts law -- as set forth in Poirier -- placed the risk of\\n\\ninjury from a slick surface on the independent contractor hired to\\n\\nremove that \\\"very hazard.\\\" Callahan, 509 N.E.2d at 1210.\\n\\n For the foregoing reasons, the district court's grant of\\n\\nsummary judgment for defendant Silko is affirmed.\\n\\n So ordered.\\n\\n\\n\\n\\n - 12 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2373,"cells":{"id":{"kind":"number","value":4629387,"string":"4,629,387"},"name":{"kind":"string","value":"Lynn R. RÍOS-CAMPBELL, Plaintiff, Appellant, v. U.S. DEPARTMENT OF COMMERCE Et Al., Defendants, Appellees."},"name_abbreviation":{"kind":"string","value":"Rios-Campbell v. U.S. Dept. of Commerce"},"decision_date":{"kind":"string","value":"2019-06-13"},"docket_number":{"kind":"string","value":"18-1420P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Selya, Lynch\", \"parties\": \"\", \"opinions\": [{\"author\": \"SELYA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1420\\n\\n LYNN R. RÍOS-CAMPBELL,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n U.S. DEPARTMENT OF COMMERCE et al.,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Carmen Consuelo Cerezo, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Selya, and Lynch,\\n Circuit Judges.\\n\\n\\n Israel Roldán-González on brief for appellant.\\n Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana\\nE. Bauzá-Almonte, Assistant United States Attorney, Chief,\\nAppellate Division, and Antonio L. Perez-Alonso, Assistant United\\nStates Attorney, on brief for appellees.\\n\\n\\n June 13, 2019\\n\\f SELYA, Circuit Judge. It is written that \\\"[t]o every\\n\\nthing there is a season, and a time to every purpose.\\\"\\n\\nEcclesiastes 3:1. This proverb may ring as true in federal civil\\n\\nprocedure as in nature: because the court below, acting on a fully\\n\\ndeveloped motion for summary judgment, employed a legal standard\\n\\nmeant for use at an earlier stage of the case, its judgment must\\n\\nbe vacated. The tale follows.\\n\\n We briefly rehearse the relevant facts and procedural\\n\\nhistory. On March 5, 2015, plaintiff-appellant Lynn R. Ríos-\\n\\nCampbell commenced a civil action in the United States District\\n\\nCourt for the District of Puerto Rico. In his complaint, the\\n\\nplaintiff — a native of Puerto Rico — alleged that his employer,\\n\\nthe United States Department of Commerce, along with several\\n\\nfederal functionaries, had discriminated against him on the basis\\n\\nof his national origin and, in the bargain, had subjected him to\\n\\nretaliation when he raised the issue. The plaintiff filed an\\n\\namended complaint, not relevant here, and then filed a second\\n\\namended complaint on December 23, 2015. After the defendants filed\\n\\nan answer and the district court entered a scheduling order, the\\n\\nparties engaged in pretrial discovery. The discovery period closed\\n\\non March 31, 2016.\\n\\n Soon thereafter, the defendants moved for summary\\n\\njudgment. See Fed. R. Civ. P. 56(a). Their motion papers included\\n\\n\\n\\n\\n - 2 -\\n\\fover 1,200 pages of exhibits. The plaintiff opposed the motion,\\n\\nand the defendants replied to his opposition.\\n\\n The matter lay relatively fallow for over a year. On\\n\\nMarch 29, 2018, the district court entered an order stating in\\n\\npertinent part: \\\"[h]aving considered the Motion for Summary\\n\\nJudgment filed by defendants . . . as a motion to dismiss for\\n\\nfailure to state a plausible claim, said Motion for Summary\\n\\njudgment is GRANTED.\\\" The court advised that a \\\"[s]tatement of\\n\\nreasons\\\" would follow.\\n\\n On May 2, the court amended its March 29 order nunc pro\\n\\ntunc. The amended order confirmed that the court, sua sponte, had\\n\\ntreated the defendants' motion for summary judgment as a motion to\\n\\ndismiss \\\"pursuant to Fed. R. Civ. P. 12(b)(6)\\\" and had granted the\\n\\nmotion on that understanding. Its accompanying statement of\\n\\nreasons memorialized the court's view that the plaintiff's second\\n\\namended complaint failed to state a plausible claim upon which\\n\\nrelief could be granted.1 This timely appeal followed.\\n\\n Despite the fact that the parties do not quarrel with\\n\\nthe district court's treatment of the defendants' motion for\\n\\n\\n\\n\\n 1 The court's decision to invoke the plausibility standard\\nwas reached on its own initiative. None of the parties had\\nsuggested the use of this standard in their summary judgment\\npapers, and the district court gave no prior notice of its\\nintention to treat the summary judgment motion in that manner.\\nNor did the court invite any briefing from the parties as to its\\nintended course of action.\\n\\n\\n - 3 -\\n\\fsummary judgment as a motion to dismiss, that issue casts a large\\n\\nshadow over any attempt to review the ruling below. In our view,\\n\\nthe orderly administration of justice counsels in favor of\\n\\naddressing the issue here and now. Our consideration of the appeal\\n\\nbegins — and ends — there.\\n\\n We review the district court's decision to treat the\\n\\ndefendants' motion for summary judgment as a motion to dismiss for\\n\\nabuse of discretion. See Vélez v. Awning Windows, Inc., 375 F.3d\\n\\n35, 41 (1st Cir. 2004) (holding that \\\"[a]ppellate review of a\\n\\ndistrict court's case-management decisions is solely for abuse of\\n\\ndiscretion\\\"); cf. Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d\\n\\n472, 475 (1st Cir. 2000) (explaining that review of district\\n\\ncourt's conversion of \\\"Rule 12 motion into motion for summary\\n\\njudgment [is] for abuse of discretion\\\"). The dispositive question\\n\\nis whether, in the absence of special circumstances or persuasive\\n\\nreasons, the district court abused its discretion in\\n\\ntransmogrifying a fully developed motion for summary judgment,\\n\\nreplete with exhibits gleaned partially through discovery, into a\\n\\nmotion to dismiss for failure to state a claim. We think that it\\n\\ndid.\\n\\n The Federal Rules of Civil Procedure offer litigants a\\n\\nnumber of avenues through which they may attempt to terminate civil\\n\\nactions short of trial. The earliest available option is a motion\\n\\nto dismiss under Rule 12(b), which \\\"must be made before pleading\\n\\n\\n - 4 -\\n\\fif a responsive pleading is allowed.\\\" Fed. R. Civ. P. 12(b). The\\n\\nrule itself lists several grounds upon which such a motion may\\n\\nrest, including (as relevant here) \\\"failure to state a claim upon\\n\\nwhich relief can be granted.\\\" Fed. R. Civ. P. 12(b)(6). To\\n\\nwithstand a Rule 12(b)(6) motion, a complaint must \\\"contain\\n\\nsufficient factual matter . . . to 'state a claim to relief that\\n\\nis plausible on its face.'\\\" Haley v. City of Boston, 657 F.3d 39,\\n\\n46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678\\n\\n(2009)).\\n\\n By its very nature, the plausibility standard is time-\\n\\nsensitive. Refined to bare essence, it \\\"is a screening mechanism\\n\\ndesigned to weed out cases that do not warrant either discovery or\\n\\ntrial.\\\" Atieh v. Riordan, 727 F.3d 73, 76 (1st Cir. 2013). This\\n\\nscreening comprises a \\\"threshold inquiry.\\\" Grajales v. P.R. Ports\\n\\nAuth., 682 F.3d 40, 46 (1st Cir. 2012). It is meant to take place\\n\\nearly in the litigation, prior to discovery. See id.\\n\\n Once an answer to the complaint is filed, the legal\\n\\nlandscape shifts. In such circumstances, a party's next option is\\n\\nto move for judgment on the pleadings under Rule 12(c). See Fed.\\n\\nR. Civ. P. 12(c) (providing that \\\"[a]fter the pleadings are closed\\n\\n— but early enough not to delay trial — a party may move for\\n\\njudgment on the pleadings\\\"). If \\\"a motion for judgment on the\\n\\npleadings . . . is employed as a vehicle to test the plausibility\\n\\n\\n\\n\\n - 5 -\\n\\fof a complaint,\\\" the Rule 12(b)(6) plausibility standard may again\\n\\ncome front and center. Grajales, 682 F.3d at 44.\\n\\n When the window for filing either a motion to dismiss\\n\\nfor failure to state a claim or a motion for judgment on the\\n\\npleadings has shut and substantial discovery has taken place, the\\n\\nplausibility standard normally becomes a relic of a bygone time.\\n\\nFrom that point forward, a party seeking to end a civil action\\n\\nshort of trial ordinarily must meet a different standard: the\\n\\nstandard applicable to a motion for summary judgment under Rule\\n\\n56. A district court will grant summary judgment only \\\"if the\\n\\nmovant shows that there is no genuine dispute as to any material\\n\\nfact and the movant is entitled to judgment as a matter of law.\\\"\\n\\nFed. R. Civ. P. 56(a). In the usual case, such a motion — unlike\\n\\na motion to dismiss for failure to state a claim2 — will be based,\\n\\nat least in part, on materials outside the pleadings.\\n\\n\\n 2To be sure, there is a narrow swath of materials outside\\nthe complaint itself that may be considered on a motion to dismiss\\nfor failure to state a claim. See, e.g., Freeman v. Town of\\nHudson, 714 F.3d 29, 36 (1st Cir. 2013) (explaining that \\\"some\\nextrinsic documents may be considered without converting a motion\\nto dismiss into a motion for summary judgment\\\"); Banco Santander\\nde P.R. v. López-Stubbe (In re Colonial Mortg. Bankers Corp.), 324\\nF.3d 12, 20 (1st Cir. 2003) (explaining that district court\\nadjudicating motion to dismiss may consider \\\"documents\\nincorporated by reference in [the complaint], matters of public\\nrecord, and other matters susceptible to judicial notice\\\");\\nBeddall v. State St. Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir.\\n1998) (explaining that when \\\"complaint's factual allegations are\\nexpressly linked to — and admittedly dependent upon — a document\\n(the authenticity of which is not challenged), that document\\neffectively merges into the pleadings and the trial court can\\n\\n\\n - 6 -\\n\\f Seen in this light, it is luminously clear that the root\\n\\npurpose of the plausibility standard differs materially from the\\n\\nroot purpose of the summary judgment standard. The former is\\n\\nintended to screen out claims in which the factual allegations of\\n\\nthe complaint are too scanty or too vague to render the claims\\n\\nplausible, see Atieh, 727 F.3d at 76, whereas the latter is\\n\\nintended to \\\"pierce the boilerplate of the pleadings and assay the\\n\\nparties' proof in order to determine whether trial is actually\\n\\nrequired,\\\" Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st\\n\\nCir. 2014) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d\\n\\n791, 794 (1st Cir. 1992)). It follows that while a complaint may\\n\\nbe tested for plausibility at the inception of a suit, a district\\n\\ncourt \\\"should refrain from entertaining summary judgment motions\\n\\nuntil after the parties have had a sufficient opportunity to\\n\\nconduct necessary discovery.\\\" Vélez, 375 F.3d at 39.\\n\\n Viewed against this backdrop, the district court's\\n\\nattempt, without notice, to transform the defendants' fully\\n\\ndeveloped motion for summary judgment, replete with exhibits\\n\\ngleaned partially through discovery, into a motion to dismiss for\\n\\nfailure to state a claim strikes a dissonant chord. The defendants\\n\\nchose not to file a motion to dismiss but instead to move for\\n\\n\\n\\n\\nreview it in deciding a motion to dismiss under Rule 12(b)(6)\\\").\\nIn the case at hand, the attachments to the defendants' motion for\\nsummary judgment go far beyond this narrow swath.\\n\\n\\n - 7 -\\n\\fsummary judgment, and that choice should be given some weight —\\n\\nespecially since the Federal Rules of Civil Procedure offer no\\n\\nsupport for a conversion such as was undertaken by the district\\n\\ncourt.\\n\\n Although a motion to dismiss for failure to state a claim\\n\\nsometimes may be converted into a motion for summary judgment,3 we\\n\\nknow of no authority that allows for the reverse conversion of a\\n\\nsummary judgment motion into a motion to dismiss for failure to\\n\\nstate a claim. Just because a cucumber can be turned into a pickle\\n\\ndoes not mean that a pickle can be turned into a cucumber, and\\n\\nprinciples of sound case management strongly suggest that allowing\\n\\nsuch a reverse conversion here would be inappropriate. After all,\\n\\nthe parties briefed and argued summary judgment, and judicial\\n\\nefficiency would have been best served by dealing directly with\\n\\nthose arguments rather than avoiding them. This course of action\\n\\nwould seem particularly appropriate since, had the defendants\\n\\nelected to file a motion to dismiss under Rule 12(b)(6) after the\\n\\nclose of discovery, their motion would have been deemed untimely.\\n\\nSee Fed. R. Civ. P. 12(b) (requiring that motion to dismiss be\\n\\nfiled before movant has answered complaint); see also Patrick v.\\n\\n\\n 3See Fed. R. Civ. P. 12(d) (providing that if \\\"matters outside\\nthe pleadings are presented to and not excluded by the court\\\" on\\na Rule 12(b)(6) motion, the motion \\\"must be treated as one for\\nsummary judgment under Rule 56\\\"); see also Beddall v. State St.\\nBank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998) (discussing\\nconversion of Rule 12(b)(6) motion into Rule 56 motion).\\n\\n\\n - 8 -\\n\\fRivera-Lopez, 708 F.3d 15, 18 (1st Cir. 2013) (finding Rule\\n\\n12(b)(6) motion, filed \\\"long after the deadline for responsive\\n\\npleadings,\\\" untimely).\\n\\n We add, moreover, that on the facts of this case, the\\n\\ndistrict court's approach stands logic on its ear. \\\"[O]ne of the\\n\\nmain goals of the plausibility standard is the avoidance of\\n\\nunnecessary discovery.\\\" Grajales, 682 F.3d at 46 (citing Bell\\n\\nAtl. Corp. v. Twombly, 550 U.S. 544, 556-58 (2007)). To allow\\n\\ninvocation of the plausibility standard after the completion of\\n\\ndiscovery would defeat this goal. And in all events, going through\\n\\na lengthy period of discovery only to ignore the fruits of the\\n\\ndiscovery process by focusing single-mindedly on the adequacy of\\n\\nthe allegations of the complaint would make little sense in the\\n\\nmine-run of cases. See id. (\\\"Applying the plausibility standard\\n\\nto a complaint after discovery is nearly complete would defeat\\n\\n[the standard's] core purpose.\\\"). Absent special circumstances or\\n\\npersuasive reasons (not present here), we see no justification for\\n\\nallowing a district court to travel back in time and train the\\n\\nlens of its inquiry on the bare allegations of the complaint while\\n\\ndisregarding the compiled factual record upon which a summary\\n\\njudgment movant has elected to rely. Cf. id. (cautioning that\\n\\n\\\"once the parties have invested substantial resources in\\n\\ndiscovery, a district court should hesitate to entertain a Rule\\n\\n\\n\\n\\n - 9 -\\n\\f12(c) motion that asserts a complaint's failure to satisfy the\\n\\nplausibility requirement\\\").\\n\\n We need go no further. For the reasons elucidated above,\\n\\nwe hold that the district court applied the wrong legal standard\\n\\nin adjudicating the defendants' summary judgment motion. Where,\\n\\nas here, an answer has been filed and no special circumstances or\\n\\npersuasive reasons justifying contrary action exist, a district\\n\\ncourt should not treat a fully developed motion for summary\\n\\njudgment as a motion to dismiss for failure to state a claim upon\\n\\nwhich relief may be granted. Accordingly, we vacate the judgment\\n\\nof the district court and remand for consideration of the\\n\\ndefendants' motion under the summary judgment standard.\\n\\n\\n\\nVacated and remanded. No costs.\\n\\n\\n\\n\\n - 10 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4406640/\", \"author_raw\": \"SELYA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"SELYA"},"judge3":{"kind":"string","value":"LYNCH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4629387/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Lynn R. RÍOS-CAMPBELL, Plaintiff, Appellant, v. U.S. DEPARTMENT OF COMMERCE Et Al., Defendants, Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-13\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1420\n\n LYNN R. RÍOS-CAMPBELL,\n\n Plaintiff, Appellant,\n\n v.\n\n U.S. DEPARTMENT OF COMMERCE et al.,\n\n Defendants, Appellees.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Carmen Consuelo Cerezo, U.S. District Judge]\n\n\n Before\n\n Torruella, Selya, and Lynch,\n Circuit Judges.\n\n\n Israel Roldán-González on brief for appellant.\n Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana\nE. Bauzá-Almonte, Assistant United States Attorney, Chief,\nAppellate Division, and Antonio L. Perez-Alonso, Assistant United\nStates Attorney, on brief for appellees.\n\n\n June 13, 2019\n\f SELYA, Circuit Judge. It is written that \"[t]o every\n\nthing there is a season, and a time to every purpose.\"\n\nEcclesiastes 3:1. This proverb may ring as true in federal civil\n\nprocedure as in nature: because the court below, acting on a fully\n\ndeveloped motion for summary judgment, employed a legal standard\n\nmeant for use at an earlier stage of the case, its judgment must\n\nbe vacated. The tale follows.\n\n We briefly rehearse the relevant facts and procedural\n\nhistory. On March 5, 2015, plaintiff-appellant Lynn R. Ríos-\n\nCampbell commenced a civil action in the United States District\n\nCourt for the District of Puerto Rico. In his complaint, the\n\nplaintiff — a native of Puerto Rico — alleged that his employer,\n\nthe United States Department of Commerce, along with several\n\nfederal functionaries, had discriminated against him on the basis\n\nof his national origin and, in the bargain, had subjected him to\n\nretaliation when he raised the issue. The plaintiff filed an\n\namended complaint, not relevant here, and then filed a second\n\namended complaint on December 23, 2015. After the defendants filed\n\nan answer and the district court entered a scheduling order, the\n\nparties engaged in pretrial discovery. The discovery period closed\n\non March 31, 2016.\n\n Soon thereafter, the defendants moved for summary\n\njudgment. See Fed. R. Civ. P. 56(a). Their motion papers included\n\n\n\n\n - 2 -\n\fover 1,200 pages of exhibits. The plaintiff opposed the motion,\n\nand the defendants replied to his opposition.\n\n The matter lay relatively fallow for over a year. On\n\nMarch 29, 2018, the district court entered an order stating in\n\npertinent part: \"[h]aving considered the Motion for Summary\n\nJudgment filed by defendants . . . as a motion to dismiss for\n\nfailure to state a plausible claim, said Motion for Summary\n\njudgment is GRANTED.\" The court advised that a \"[s]tatement of\n\nreasons\" would follow.\n\n On May 2, the court amended its March 29 order nunc pro\n\ntunc. The amended order confirmed that the court, sua sponte, had\n\ntreated the defendants' motion for summary judgment as a motion to\n\ndismiss \"pursuant to Fed. R. Civ. P. 12(b)(6)\" and had granted the\n\nmotion on that understanding. Its accompanying statement of\n\nreasons memorialized the court's view that the plaintiff's second\n\namended complaint failed to state a plausible claim upon which\n\nrelief could be granted.1 This timely appeal followed.\n\n Despite the fact that the parties do not quarrel with\n\nthe district court's treatment of the defendants' motion for\n\n\n\n\n 1 The court's decision to invoke the plausibility standard\nwas reached on its own initiative. None of the parties had\nsuggested the use of this standard in their summary judgment\npapers, and the district court gave no prior notice of its\nintention to treat the summary judgment motion in that manner.\nNor did the court invite any briefing from the parties as to its\nintended course of action.\n\n\n - 3 -\n\fsummary judgment as a motion to dismiss, that issue casts a large\n\nshadow over any attempt to review the ruling below. In our view,\n\nthe orderly administration of justice counsels in favor of\n\naddressing the issue here and now. Our consideration of the appeal\n\nbegins — and ends — there.\n\n We review the district court's decision to treat the\n\ndefendants' motion for summary judgment as a motion to dismiss for\n\nabuse of discretion. See Vélez v. Awning Windows, Inc., 375 F.3d\n\n35, 41 (1st Cir. 2004) (holding that \"[a]ppellate review of a\n\ndistrict court's case-management decisions is solely for abuse of\n\ndiscretion\"); cf. Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d\n\n472, 475 (1st Cir. 2000) (explaining that review of district\n\ncourt's conversion of \"Rule 12 motion into motion for summary\n\njudgment [is] for abuse of discretion\"). The dispositive question\n\nis whether, in the absence of special circumstances or persuasive\n\nreasons, the district court abused its discretion in\n\ntransmogrifying a fully developed motion for summary judgment,\n\nreplete with exhibits gleaned partially through discovery, into a\n\nmotion to dismiss for failure to state a claim. We think that it\n\ndid.\n\n The Federal Rules of Civil Procedure offer litigants a\n\nnumber of avenues through which they may attempt to terminate civil\n\nactions short of trial. The earliest available option is a motion\n\nto dismiss under Rule 12(b), which \"must be made before pleading\n\n\n - 4 -\n\fif a responsive pleading is allowed.\" Fed. R. Civ. P. 12(b). The\n\nrule itself lists several grounds upon which such a motion may\n\nrest, including (as relevant here) \"failure to state a claim upon\n\nwhich relief can be granted.\" Fed. R. Civ. P. 12(b)(6). To\n\nwithstand a Rule 12(b)(6) motion, a complaint must \"contain\n\nsufficient factual matter . . . to 'state a claim to relief that\n\nis plausible on its face.'\" Haley v. City of Boston, 657 F.3d 39,\n\n46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678\n\n(2009)).\n\n By its very nature, the plausibility standard is time-\n\nsensitive. Refined to bare essence, it \"is a screening mechanism\n\ndesigned to weed out cases that do not warrant either discovery or\n\ntrial.\" Atieh v. Riordan, 727 F.3d 73, 76 (1st Cir. 2013). This\n\nscreening comprises a \"threshold inquiry.\" Grajales v. P.R. Ports\n\nAuth., 682 F.3d 40, 46 (1st Cir. 2012). It is meant to take place\n\nearly in the litigation, prior to discovery. See id.\n\n Once an answer to the complaint is filed, the legal\n\nlandscape shifts. In such circumstances, a party's next option is\n\nto move for judgment on the pleadings under Rule 12(c). See Fed.\n\nR. Civ. P. 12(c) (providing that \"[a]fter the pleadings are closed\n\n— but early enough not to delay trial — a party may move for\n\njudgment on the pleadings\"). If \"a motion for judgment on the\n\npleadings . . . is employed as a vehicle to test the plausibility\n\n\n\n\n - 5 -\n\fof a complaint,\" the Rule 12(b)(6) plausibility standard may again\n\ncome front and center. Grajales, 682 F.3d at 44.\n\n When the window for filing either a motion to dismiss\n\nfor failure to state a claim or a motion for judgment on the\n\npleadings has shut and substantial discovery has taken place, the\n\nplausibility standard normally becomes a relic of a bygone time.\n\nFrom that point forward, a party seeking to end a civil action\n\nshort of trial ordinarily must meet a different standard: the\n\nstandard applicable to a motion for summary judgment under Rule\n\n56. A district court will grant summary judgment only \"if the\n\nmovant shows that there is no genuine dispute as to any material\n\nfact and the movant is entitled to judgment as a matter of law.\"\n\nFed. R. Civ. P. 56(a). In the usual case, such a motion — unlike\n\na motion to dismiss for failure to state a claim2 — will be based,\n\nat least in part, on materials outside the pleadings.\n\n\n 2To be sure, there is a narrow swath of materials outside\nthe complaint itself that may be considered on a motion to dismiss\nfor failure to state a claim. See, e.g., Freeman v. Town of\nHudson, 714 F.3d 29, 36 (1st Cir. 2013) (explaining that \"some\nextrinsic documents may be considered without converting a motion\nto dismiss into a motion for summary judgment\"); Banco Santander\nde P.R. v. López-Stubbe (In re Colonial Mortg. Bankers Corp.), 324\nF.3d 12, 20 (1st Cir. 2003) (explaining that district court\nadjudicating motion to dismiss may consider \"documents\nincorporated by reference in [the complaint], matters of public\nrecord, and other matters susceptible to judicial notice\");\nBeddall v. State St. Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir.\n1998) (explaining that when \"complaint's factual allegations are\nexpressly linked to — and admittedly dependent upon — a document\n(the authenticity of which is not challenged), that document\neffectively merges into the pleadings and the trial court can\n\n\n - 6 -\n\f Seen in this light, it is luminously clear that the root\n\npurpose of the plausibility standard differs materially from the\n\nroot purpose of the summary judgment standard. The former is\n\nintended to screen out claims in which the factual allegations of\n\nthe complaint are too scanty or too vague to render the claims\n\nplausible, see Atieh, 727 F.3d at 76, whereas the latter is\n\nintended to \"pierce the boilerplate of the pleadings and assay the\n\nparties' proof in order to determine whether trial is actually\n\nrequired,\" Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st\n\nCir. 2014) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d\n\n791, 794 (1st Cir. 1992)). It follows that while a complaint may\n\nbe tested for plausibility at the inception of a suit, a district\n\ncourt \"should refrain from entertaining summary judgment motions\n\nuntil after the parties have had a sufficient opportunity to\n\nconduct necessary discovery.\" Vélez, 375 F.3d at 39.\n\n Viewed against this backdrop, the district court's\n\nattempt, without notice, to transform the defendants' fully\n\ndeveloped motion for summary judgment, replete with exhibits\n\ngleaned partially through discovery, into a motion to dismiss for\n\nfailure to state a claim strikes a dissonant chord. The defendants\n\nchose not to file a motion to dismiss but instead to move for\n\n\n\n\nreview it in deciding a motion to dismiss under Rule 12(b)(6)\").\nIn the case at hand, the attachments to the defendants' motion for\nsummary judgment go far beyond this narrow swath.\n\n\n - 7 -\n\fsummary judgment, and that choice should be given some weight —\n\nespecially since the Federal Rules of Civil Procedure offer no\n\nsupport for a conversion such as was undertaken by the district\n\ncourt.\n\n Although a motion to dismiss for failure to state a claim\n\nsometimes may be converted into a motion for summary judgment,3 we\n\nknow of no authority that allows for the reverse conversion of a\n\nsummary judgment motion into a motion to dismiss for failure to\n\nstate a claim. Just because a cucumber can be turned into a pickle\n\ndoes not mean that a pickle can be turned into a cucumber, and\n\nprinciples of sound case management strongly suggest that allowing\n\nsuch a reverse conversion here would be inappropriate. After all,\n\nthe parties briefed and argued summary judgment, and judicial\n\nefficiency would have been best served by dealing directly with\n\nthose arguments rather than avoiding them. This course of action\n\nwould seem particularly appropriate since, had the defendants\n\nelected to file a motion to dismiss under Rule 12(b)(6) after the\n\nclose of discovery, their motion would have been deemed untimely.\n\nSee Fed. R. Civ. P. 12(b) (requiring that motion to dismiss be\n\nfiled before movant has answered complaint); see also Patrick v.\n\n\n 3See Fed. R. Civ. P. 12(d) (providing that if \"matters outside\nthe pleadings are presented to and not excluded by the court\" on\na Rule 12(b)(6) motion, the motion \"must be treated as one for\nsummary judgment under Rule 56\"); see also Beddall v. State St.\nBank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998) (discussing\nconversion of Rule 12(b)(6) motion into Rule 56 motion).\n\n\n - 8 -\n\fRivera-Lopez, 708 F.3d 15, 18 (1st Cir. 2013) (finding Rule\n\n12(b)(6) motion, filed \"long after the deadline for responsive\n\npleadings,\" untimely).\n\n We add, moreover, that on the facts of this case, the\n\ndistrict court's approach stands logic on its ear. \"[O]ne of the\n\nmain goals of the plausibility standard is the avoidance of\n\nunnecessary discovery.\" Grajales, 682 F.3d at 46 (citing Bell\n\nAtl. Corp. v. Twombly, 550 U.S. 544, 556-58 (2007)). To allow\n\ninvocation of the plausibility standard after the completion of\n\ndiscovery would defeat this goal. And in all events, going through\n\na lengthy period of discovery only to ignore the fruits of the\n\ndiscovery process by focusing single-mindedly on the adequacy of\n\nthe allegations of the complaint would make little sense in the\n\nmine-run of cases. See id. (\"Applying the plausibility standard\n\nto a complaint after discovery is nearly complete would defeat\n\n[the standard's] core purpose.\"). Absent special circumstances or\n\npersuasive reasons (not present here), we see no justification for\n\nallowing a district court to travel back in time and train the\n\nlens of its inquiry on the bare allegations of the complaint while\n\ndisregarding the compiled factual record upon which a summary\n\njudgment movant has elected to rely. Cf. id. (cautioning that\n\n\"once the parties have invested substantial resources in\n\ndiscovery, a district court should hesitate to entertain a Rule\n\n\n\n\n - 9 -\n\f12(c) motion that asserts a complaint's failure to satisfy the\n\nplausibility requirement\").\n\n We need go no further. For the reasons elucidated above,\n\nwe hold that the district court applied the wrong legal standard\n\nin adjudicating the defendants' summary judgment motion. Where,\n\nas here, an answer has been filed and no special circumstances or\n\npersuasive reasons justifying contrary action exist, a district\n\ncourt should not treat a fully developed motion for summary\n\njudgment as a motion to dismiss for failure to state a claim upon\n\nwhich relief may be granted. Accordingly, we vacate the judgment\n\nof the district court and remand for consideration of the\n\ndefendants' motion under the summary judgment standard.\n\n\n\nVacated and remanded. No costs.\n\n\n\n\n - 10 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Lynn R. RÍOS-CAMPBELL, Plaintiff, Appellant, v. U.S. DEPARTMENT OF COMMERCE Et Al., Defendants, Appellees.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-13\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1420\\n\\n LYNN R. RÍOS-CAMPBELL,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n U.S. DEPARTMENT OF COMMERCE et al.,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Carmen Consuelo Cerezo, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Selya, and Lynch,\\n Circuit Judges.\\n\\n\\n Israel Roldán-González on brief for appellant.\\n Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana\\nE. Bauzá-Almonte, Assistant United States Attorney, Chief,\\nAppellate Division, and Antonio L. Perez-Alonso, Assistant United\\nStates Attorney, on brief for appellees.\\n\\n\\n June 13, 2019\\n\\f SELYA, Circuit Judge. It is written that \\\"[t]o every\\n\\nthing there is a season, and a time to every purpose.\\\"\\n\\nEcclesiastes 3:1. This proverb may ring as true in federal civil\\n\\nprocedure as in nature: because the court below, acting on a fully\\n\\ndeveloped motion for summary judgment, employed a legal standard\\n\\nmeant for use at an earlier stage of the case, its judgment must\\n\\nbe vacated. The tale follows.\\n\\n We briefly rehearse the relevant facts and procedural\\n\\nhistory. On March 5, 2015, plaintiff-appellant Lynn R. Ríos-\\n\\nCampbell commenced a civil action in the United States District\\n\\nCourt for the District of Puerto Rico. In his complaint, the\\n\\nplaintiff — a native of Puerto Rico — alleged that his employer,\\n\\nthe United States Department of Commerce, along with several\\n\\nfederal functionaries, had discriminated against him on the basis\\n\\nof his national origin and, in the bargain, had subjected him to\\n\\nretaliation when he raised the issue. The plaintiff filed an\\n\\namended complaint, not relevant here, and then filed a second\\n\\namended complaint on December 23, 2015. After the defendants filed\\n\\nan answer and the district court entered a scheduling order, the\\n\\nparties engaged in pretrial discovery. The discovery period closed\\n\\non March 31, 2016.\\n\\n Soon thereafter, the defendants moved for summary\\n\\njudgment. See Fed. R. Civ. P. 56(a). Their motion papers included\\n\\n\\n\\n\\n - 2 -\\n\\fover 1,200 pages of exhibits. The plaintiff opposed the motion,\\n\\nand the defendants replied to his opposition.\\n\\n The matter lay relatively fallow for over a year. On\\n\\nMarch 29, 2018, the district court entered an order stating in\\n\\npertinent part: \\\"[h]aving considered the Motion for Summary\\n\\nJudgment filed by defendants . . . as a motion to dismiss for\\n\\nfailure to state a plausible claim, said Motion for Summary\\n\\njudgment is GRANTED.\\\" The court advised that a \\\"[s]tatement of\\n\\nreasons\\\" would follow.\\n\\n On May 2, the court amended its March 29 order nunc pro\\n\\ntunc. The amended order confirmed that the court, sua sponte, had\\n\\ntreated the defendants' motion for summary judgment as a motion to\\n\\ndismiss \\\"pursuant to Fed. R. Civ. P. 12(b)(6)\\\" and had granted the\\n\\nmotion on that understanding. Its accompanying statement of\\n\\nreasons memorialized the court's view that the plaintiff's second\\n\\namended complaint failed to state a plausible claim upon which\\n\\nrelief could be granted.1 This timely appeal followed.\\n\\n Despite the fact that the parties do not quarrel with\\n\\nthe district court's treatment of the defendants' motion for\\n\\n\\n\\n\\n 1 The court's decision to invoke the plausibility standard\\nwas reached on its own initiative. None of the parties had\\nsuggested the use of this standard in their summary judgment\\npapers, and the district court gave no prior notice of its\\nintention to treat the summary judgment motion in that manner.\\nNor did the court invite any briefing from the parties as to its\\nintended course of action.\\n\\n\\n - 3 -\\n\\fsummary judgment as a motion to dismiss, that issue casts a large\\n\\nshadow over any attempt to review the ruling below. In our view,\\n\\nthe orderly administration of justice counsels in favor of\\n\\naddressing the issue here and now. Our consideration of the appeal\\n\\nbegins — and ends — there.\\n\\n We review the district court's decision to treat the\\n\\ndefendants' motion for summary judgment as a motion to dismiss for\\n\\nabuse of discretion. See Vélez v. Awning Windows, Inc., 375 F.3d\\n\\n35, 41 (1st Cir. 2004) (holding that \\\"[a]ppellate review of a\\n\\ndistrict court's case-management decisions is solely for abuse of\\n\\ndiscretion\\\"); cf. Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d\\n\\n472, 475 (1st Cir. 2000) (explaining that review of district\\n\\ncourt's conversion of \\\"Rule 12 motion into motion for summary\\n\\njudgment [is] for abuse of discretion\\\"). The dispositive question\\n\\nis whether, in the absence of special circumstances or persuasive\\n\\nreasons, the district court abused its discretion in\\n\\ntransmogrifying a fully developed motion for summary judgment,\\n\\nreplete with exhibits gleaned partially through discovery, into a\\n\\nmotion to dismiss for failure to state a claim. We think that it\\n\\ndid.\\n\\n The Federal Rules of Civil Procedure offer litigants a\\n\\nnumber of avenues through which they may attempt to terminate civil\\n\\nactions short of trial. The earliest available option is a motion\\n\\nto dismiss under Rule 12(b), which \\\"must be made before pleading\\n\\n\\n - 4 -\\n\\fif a responsive pleading is allowed.\\\" Fed. R. Civ. P. 12(b). The\\n\\nrule itself lists several grounds upon which such a motion may\\n\\nrest, including (as relevant here) \\\"failure to state a claim upon\\n\\nwhich relief can be granted.\\\" Fed. R. Civ. P. 12(b)(6). To\\n\\nwithstand a Rule 12(b)(6) motion, a complaint must \\\"contain\\n\\nsufficient factual matter . . . to 'state a claim to relief that\\n\\nis plausible on its face.'\\\" Haley v. City of Boston, 657 F.3d 39,\\n\\n46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678\\n\\n(2009)).\\n\\n By its very nature, the plausibility standard is time-\\n\\nsensitive. Refined to bare essence, it \\\"is a screening mechanism\\n\\ndesigned to weed out cases that do not warrant either discovery or\\n\\ntrial.\\\" Atieh v. Riordan, 727 F.3d 73, 76 (1st Cir. 2013). This\\n\\nscreening comprises a \\\"threshold inquiry.\\\" Grajales v. P.R. Ports\\n\\nAuth., 682 F.3d 40, 46 (1st Cir. 2012). It is meant to take place\\n\\nearly in the litigation, prior to discovery. See id.\\n\\n Once an answer to the complaint is filed, the legal\\n\\nlandscape shifts. In such circumstances, a party's next option is\\n\\nto move for judgment on the pleadings under Rule 12(c). See Fed.\\n\\nR. Civ. P. 12(c) (providing that \\\"[a]fter the pleadings are closed\\n\\n— but early enough not to delay trial — a party may move for\\n\\njudgment on the pleadings\\\"). If \\\"a motion for judgment on the\\n\\npleadings . . . is employed as a vehicle to test the plausibility\\n\\n\\n\\n\\n - 5 -\\n\\fof a complaint,\\\" the Rule 12(b)(6) plausibility standard may again\\n\\ncome front and center. Grajales, 682 F.3d at 44.\\n\\n When the window for filing either a motion to dismiss\\n\\nfor failure to state a claim or a motion for judgment on the\\n\\npleadings has shut and substantial discovery has taken place, the\\n\\nplausibility standard normally becomes a relic of a bygone time.\\n\\nFrom that point forward, a party seeking to end a civil action\\n\\nshort of trial ordinarily must meet a different standard: the\\n\\nstandard applicable to a motion for summary judgment under Rule\\n\\n56. A district court will grant summary judgment only \\\"if the\\n\\nmovant shows that there is no genuine dispute as to any material\\n\\nfact and the movant is entitled to judgment as a matter of law.\\\"\\n\\nFed. R. Civ. P. 56(a). In the usual case, such a motion — unlike\\n\\na motion to dismiss for failure to state a claim2 — will be based,\\n\\nat least in part, on materials outside the pleadings.\\n\\n\\n 2To be sure, there is a narrow swath of materials outside\\nthe complaint itself that may be considered on a motion to dismiss\\nfor failure to state a claim. See, e.g., Freeman v. Town of\\nHudson, 714 F.3d 29, 36 (1st Cir. 2013) (explaining that \\\"some\\nextrinsic documents may be considered without converting a motion\\nto dismiss into a motion for summary judgment\\\"); Banco Santander\\nde P.R. v. López-Stubbe (In re Colonial Mortg. Bankers Corp.), 324\\nF.3d 12, 20 (1st Cir. 2003) (explaining that district court\\nadjudicating motion to dismiss may consider \\\"documents\\nincorporated by reference in [the complaint], matters of public\\nrecord, and other matters susceptible to judicial notice\\\");\\nBeddall v. State St. Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir.\\n1998) (explaining that when \\\"complaint's factual allegations are\\nexpressly linked to — and admittedly dependent upon — a document\\n(the authenticity of which is not challenged), that document\\neffectively merges into the pleadings and the trial court can\\n\\n\\n - 6 -\\n\\f Seen in this light, it is luminously clear that the root\\n\\npurpose of the plausibility standard differs materially from the\\n\\nroot purpose of the summary judgment standard. The former is\\n\\nintended to screen out claims in which the factual allegations of\\n\\nthe complaint are too scanty or too vague to render the claims\\n\\nplausible, see Atieh, 727 F.3d at 76, whereas the latter is\\n\\nintended to \\\"pierce the boilerplate of the pleadings and assay the\\n\\nparties' proof in order to determine whether trial is actually\\n\\nrequired,\\\" Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st\\n\\nCir. 2014) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d\\n\\n791, 794 (1st Cir. 1992)). It follows that while a complaint may\\n\\nbe tested for plausibility at the inception of a suit, a district\\n\\ncourt \\\"should refrain from entertaining summary judgment motions\\n\\nuntil after the parties have had a sufficient opportunity to\\n\\nconduct necessary discovery.\\\" Vélez, 375 F.3d at 39.\\n\\n Viewed against this backdrop, the district court's\\n\\nattempt, without notice, to transform the defendants' fully\\n\\ndeveloped motion for summary judgment, replete with exhibits\\n\\ngleaned partially through discovery, into a motion to dismiss for\\n\\nfailure to state a claim strikes a dissonant chord. The defendants\\n\\nchose not to file a motion to dismiss but instead to move for\\n\\n\\n\\n\\nreview it in deciding a motion to dismiss under Rule 12(b)(6)\\\").\\nIn the case at hand, the attachments to the defendants' motion for\\nsummary judgment go far beyond this narrow swath.\\n\\n\\n - 7 -\\n\\fsummary judgment, and that choice should be given some weight —\\n\\nespecially since the Federal Rules of Civil Procedure offer no\\n\\nsupport for a conversion such as was undertaken by the district\\n\\ncourt.\\n\\n Although a motion to dismiss for failure to state a claim\\n\\nsometimes may be converted into a motion for summary judgment,3 we\\n\\nknow of no authority that allows for the reverse conversion of a\\n\\nsummary judgment motion into a motion to dismiss for failure to\\n\\nstate a claim. Just because a cucumber can be turned into a pickle\\n\\ndoes not mean that a pickle can be turned into a cucumber, and\\n\\nprinciples of sound case management strongly suggest that allowing\\n\\nsuch a reverse conversion here would be inappropriate. After all,\\n\\nthe parties briefed and argued summary judgment, and judicial\\n\\nefficiency would have been best served by dealing directly with\\n\\nthose arguments rather than avoiding them. This course of action\\n\\nwould seem particularly appropriate since, had the defendants\\n\\nelected to file a motion to dismiss under Rule 12(b)(6) after the\\n\\nclose of discovery, their motion would have been deemed untimely.\\n\\nSee Fed. R. Civ. P. 12(b) (requiring that motion to dismiss be\\n\\nfiled before movant has answered complaint); see also Patrick v.\\n\\n\\n 3See Fed. R. Civ. P. 12(d) (providing that if \\\"matters outside\\nthe pleadings are presented to and not excluded by the court\\\" on\\na Rule 12(b)(6) motion, the motion \\\"must be treated as one for\\nsummary judgment under Rule 56\\\"); see also Beddall v. State St.\\nBank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998) (discussing\\nconversion of Rule 12(b)(6) motion into Rule 56 motion).\\n\\n\\n - 8 -\\n\\fRivera-Lopez, 708 F.3d 15, 18 (1st Cir. 2013) (finding Rule\\n\\n12(b)(6) motion, filed \\\"long after the deadline for responsive\\n\\npleadings,\\\" untimely).\\n\\n We add, moreover, that on the facts of this case, the\\n\\ndistrict court's approach stands logic on its ear. \\\"[O]ne of the\\n\\nmain goals of the plausibility standard is the avoidance of\\n\\nunnecessary discovery.\\\" Grajales, 682 F.3d at 46 (citing Bell\\n\\nAtl. Corp. v. Twombly, 550 U.S. 544, 556-58 (2007)). To allow\\n\\ninvocation of the plausibility standard after the completion of\\n\\ndiscovery would defeat this goal. And in all events, going through\\n\\na lengthy period of discovery only to ignore the fruits of the\\n\\ndiscovery process by focusing single-mindedly on the adequacy of\\n\\nthe allegations of the complaint would make little sense in the\\n\\nmine-run of cases. See id. (\\\"Applying the plausibility standard\\n\\nto a complaint after discovery is nearly complete would defeat\\n\\n[the standard's] core purpose.\\\"). Absent special circumstances or\\n\\npersuasive reasons (not present here), we see no justification for\\n\\nallowing a district court to travel back in time and train the\\n\\nlens of its inquiry on the bare allegations of the complaint while\\n\\ndisregarding the compiled factual record upon which a summary\\n\\njudgment movant has elected to rely. Cf. id. (cautioning that\\n\\n\\\"once the parties have invested substantial resources in\\n\\ndiscovery, a district court should hesitate to entertain a Rule\\n\\n\\n\\n\\n - 9 -\\n\\f12(c) motion that asserts a complaint's failure to satisfy the\\n\\nplausibility requirement\\\").\\n\\n We need go no further. For the reasons elucidated above,\\n\\nwe hold that the district court applied the wrong legal standard\\n\\nin adjudicating the defendants' summary judgment motion. Where,\\n\\nas here, an answer has been filed and no special circumstances or\\n\\npersuasive reasons justifying contrary action exist, a district\\n\\ncourt should not treat a fully developed motion for summary\\n\\njudgment as a motion to dismiss for failure to state a claim upon\\n\\nwhich relief may be granted. Accordingly, we vacate the judgment\\n\\nof the district court and remand for consideration of the\\n\\ndefendants' motion under the summary judgment standard.\\n\\n\\n\\nVacated and remanded. No costs.\\n\\n\\n\\n\\n - 10 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2374,"cells":{"id":{"kind":"number","value":4630261,"string":"4,630,261"},"name":{"kind":"string","value":"ZURICH AMERICAN INSURANCE COMPANY, Plaintiff, Appellant, v. ELECTRICITY MAINE, LLC ; Emile Clavet; Kevin Dean; Spark HoldCo, LLC ; Provider Power, LLC ; Katherine Veileux and Jennifer Chon, Individually and Behalf of All Other Similarly Situated Parties, Defendants, Appellees."},"name_abbreviation":{"kind":"string","value":"Zurich American Insurance Co. v. Electricity Maine, LLC"},"decision_date":{"kind":"string","value":"2019-06-17"},"docket_number":{"kind":"string","value":"18-1968P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Howard, Boudin, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARRON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1968\\n\\n ZURICH AMERICAN INSURANCE COMPANY,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n ELECTRICITY MAINE, LLC; EMILE CLAVET; KEVIN DEAN;\\n SPARK HOLDCO, LLC; PROVIDER POWER, LLC; KATHERINE VEILEUX AND\\n JENNIFER CHON, individually and behalf of all other similarly\\n situated parties,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. Nancy Torresen, Chief U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Boudin and Barron, Circuit Judges.\\n\\n\\n John S. Whitman, Esq., with whom Richardson, Whitman, Large,\\n& Badger were on brief for appellant.\\n Timothy E. Steigelman, with whom Melissa A. Hewey, and\\nDrummond Woodsum were on brief for appellees.\\n\\n\\n June 17, 2019\\n\\f BARRON, Circuit Judge. Electricity Maine LLC is a\\n\\nprivate energy company that serves customers in Maine. It held a\\n\\nD&O insurance policy (the \\\"Policy\\\") with Zurich American Insurance\\n\\nCo. (\\\"Zurich\\\") when, in November of 2015, a class action was\\n\\nbrought against it, Spark Holco LLC, Emile Clavet, and Kevin Dean\\n\\n(together \\\"Electricity Maine\\\"). The named plaintiffs were two of\\n\\nElectricity Maine's customers, Jennifer Chon and Katherine\\n\\nVeilleux. They sought to represent a class of nearly 200,000 of\\n\\nthe company's customers. The complaint alleged that Electricity\\n\\nMaine had engaged in misconduct that resulted in customers\\n\\nreceiving higher bills than Electricity Maine had represented that\\n\\nthey would be. The complaint sought class-wide damages totaling\\n\\napproximately $35 million for a variety of Maine state common law\\n\\nclaims, as well as for claims under the federal Racketeer\\n\\nInfluenced and Corrupt Organizations Act (\\\"RICO\\\"), 18 U.S.C. §§\\n\\n1962, 1964; and the Maine Unfair Trade Practices Act, Me. Rev.\\n\\nStat. Ann. tit. 5 § 207.\\n\\n Electricity Maine tendered notice of the suit to Zurich.\\n\\nZurich then initiated the present action against Electricity Maine\\n\\nin the United States District Court for the District of Maine on\\n\\nMay 3, 2017, based on diversity jurisdiction. 28 U.S.C. § 1332.\\n\\nZurich seeks a declaratory judgment that it has no duty to defend\\n\\nElectricity Maine against the underlying action. Zurich contends\\n\\n\\n\\n\\n - 2 -\\n\\fthat Electricity Maine's policy1 with Zurich provides, in relevant\\n\\npart, that Zurich has a duty to defend Electricity Maine against\\n\\nany lawsuit that seeks damages for \\\"bodily injury\\\" caused by an\\n\\n\\\"occurrence\\\" and that the complaint in the underlying action fails\\n\\nto allege that Electricity Maine engaged in conduct that qualifies\\n\\nas an \\\"occurrence\\\" or that caused any \\\"bodily injury.\\\"\\n\\n Zurich and Electricity Maine cross-moved for summary\\n\\njudgment on a stipulated record. The District Court ruled for\\n\\nElectricity Maine. Zurich Am. Ins. Co. v. Electricity Maine LLC,\\n\\n325 F. Supp. 3d 198, 202-03 (D. Me. 2018). This appeal followed.\\n\\nWe affirm.\\n\\n I.\\n\\n We review the District Court's decisions on the parties'\\n\\nmotions for summary judgment de novo. See Utica Mut. Ins. Co. v.\\n\\nHerbert H. Landy Ins. Agency, Inc., 820 F.3d 36, 41 (1st Cir.\\n\\n2016). We must affirm the judgments below if there is no genuine\\n\\nissue of material fact in dispute and the District Court's\\n\\nconclusions are correct as a matter of law. See id.\\n\\n The parties agree that the only issues presented on\\n\\nappeal concern the District Court's interpretation of the relevant\\n\\nprovisions of the Policy. Those issues present matters of law,\\n\\n\\n 1 The terms of the Policy were set forth in three successive\\ncontracts. The parties agree that the relevant language is\\nidentical from one contract to the next, and, therefore, should be\\ntreated as one policy.\\n\\n\\n - 3 -\\n\\fwhich we review de novo. Massamont Ins. Agency, Inc. v. Utica\\n\\nMut. Ins. Co., 489 F.3d 71, 72 (1st Cir. 2007).\\n\\n The parties agree that Maine law controls the\\n\\ninterpretive questions at issue on appeal. Under Maine law, \\\"[i]f\\n\\nthe allegations in the underlying . . . action are within the risk\\n\\ninsured against and there is any potential basis for recovery, the\\n\\ninsurer must defend the insured regardless of the actual facts on\\n\\nwhich the insured's ultimate liability may be based.\\\" Elliott v.\\n\\nHanover Ins. Co., 711 A.2d 1310, 1312 (Me. 1998).\\n\\n To determine if the allegations in the underlying action\\n\\nare within the risk insured, we must \\\"compar[e] the complaint with\\n\\nthe terms of the insurance contract.\\\" Id. The key terms in the\\n\\nPolicy that define the \\\"risk insured\\\" are \\\"occurrence\\\" and \\\"bodily\\n\\ninjury.\\\"\\n\\n II.\\n\\n The Policy defines an \\\"occurrence\\\" to be \\\"an accident,\\n\\nincluding continuous or repeated exposure to substantially the\\n\\nsame general harmful conditions.\\\" The Policy does not define what\\n\\nconstitutes an \\\"accident,\\\" but the Maine Law Court (the \\\"Law\\n\\nCourt\\\") has explained that an \\\"accident\\\" is \\\"commonly understood\\n\\nto mean . . . an event that takes place without one's forethought\\n\\nor expectation; an undesigned, sudden, and unexpected event.\\\"\\n\\nKelley v. N.E. Ins. Co., 168 A.3d 779, 782 (Me. 2017) (quoting\\n\\nPatrick v. J.B. Ham Co., 111 A. 912, 915 (Me. 1921)).\\n\\n\\n - 4 -\\n\\f The complaint in the underlying action sets forth a\\n\\nnumber of claims for intentional torts, but also includes a claim\\n\\nfor \\\"negligence\\\" and a claim for \\\"negligent misrepresentation.\\\"\\n\\nThe negligence and negligent misrepresentation claims would appear\\n\\nto seek recovery for the kind of conduct that fits comfortably\\n\\nwithin the definition of an \\\"accident,\\\" as these claims require\\n\\nproof only of \\\"event[s] that take[] place without one's forethought\\n\\nor expectation.\\\" Kelley, 168 A.3d at 782. Indeed, the Law Court\\n\\nhas held multiple times that \\\"broad conclusory allegations of\\n\\n'negligence,'\\\" pled in the alternative to claims that require proof\\n\\nof intentional misconduct, constitute allegations of \\\"accidental\\\"\\n\\nor \\\"[un]intentional\\\" activity that suffice to trigger the duty to\\n\\ndefend under policies that cover \\\"accidents.\\\" Travelers Indem.\\n\\nCo. v. Dingwell, 414 A.2d 220, 225-27 (Me. 1980) (finding a duty\\n\\nto defend for an \\\"accident[]\\\" where the complaint alleged negligent\\n\\nacts in the alternative to intentional conduct); Lavoie v.\\n\\nDorchester Mut. Fire Ins. Co., 560 A.2d 570, 571 (Me. 1989)\\n\\n(finding a duty to defend under a policy with an exclusion for\\n\\n\\\"intentional\\\" acts where a complaint alleged negligence as an\\n\\nalternative to its intentional assault and battery claims).\\n\\n To blunt the force of this precedent, Zurich relies on\\n\\ntwo Law Court cases -- Allocca v. York Ins. Co. of Maine, 169 A.3d\\n\\n938 (Me. 2017) and Vermont Mut. Ins. Co. v. Ben-Ami, 193 A.3d 178\\n\\n(Me. 2018) -- that were decided after Travelers and Lavoie. But,\\n\\n\\n - 5 -\\n\\fneither Allocca nor Ben-Ami involved complaints that, like the\\n\\ncomplaint at issue here, expressly allege claims for negligence\\n\\n(or negligent misrepresentation) alongside claims for intentional\\n\\ntorts. Allocca, 169 A.3d at 940-41; Ben-Ami, 193 A.3d at 180-81.\\n\\n Zurich also attempts to distinguish Travelers and Lavoie\\n\\nfrom the present case on the ground that, unlike in those cases,\\n\\nthe facts alleged in the complaint here \\\"make it impossible to\\n\\nsustain the fiction that Electricity Maine was 'negligent' and\\n\\nexpected no harm to befall its customers.\\\" Zurich is right that\\n\\nthe portion of the complaint that sets forth the RICO claims,\\n\\nalleges that Electricity Maine promised its customers rates that\\n\\nwere lower than those offered by the public utilities, raised those\\n\\nrates unexpectedly after the first year of the customers'\\n\\ncontracts, notified its customers about the rate increases through\\n\\nemails that were sent to the customers' spam folders, and required\\n\\nthat customers pay a $100 fee if they wanted to leave these more\\n\\nexpensive contracts. And, Zurich is also right that this portion\\n\\nof the complaint does allege that the company engaged in that\\n\\nconduct intentionally, just as one would expect, given that RICO\\n\\nclaims seek recovery for intentional torts.\\n\\n But we do not see why, when the complaint goes on to\\n\\nincorporate by reference the same factual allegations into its\\n\\nclaims for negligence and negligent misrepresentation, it must be\\n\\nread to be alleging, with respect to those claims, that Electricity\\n\\n\\n - 6 -\\n\\fMaine acted intentionally rather than inadvertently. Those\\n\\nclaims, unlike the RICO claims, do not require proof of intentional\\n\\nconduct. We note, moreover, that this conclusion accords with\\n\\nHarlor v. Amica Mut. Ins. Co, 150 A.3d 793 (Me. 2016). There, the\\n\\nLaw Court explained that the duty to defend is triggered so long\\n\\nas a complaint \\\"reveals . . . any legal or factual basis that could\\n\\npotentially be developed at trial\\\" for proving conduct that would\\n\\nfall within the risk insured. Id. at 797 (emphasis added). And,\\n\\nas we explained in Auto Europe, LLC v. Conn. Indem. Co., after\\n\\ncanvassing Maine law, the duty to defend is triggered under the\\n\\nstate's law \\\"where a narrow reading of the complaint's factual\\n\\nallegations might preclude coverage, but the alleged cause of\\n\\naction is sufficiently broad that a modified version of the facts\\n\\ncould be developed at trial to show liability.\\\" 321 F.3d 60, 68\\n\\n(1st Cir. 2003).\\n\\n That is not to say that either the negligent\\n\\nmisrepresentation claim or the negligence claim has merit. But,\\n\\neven a \\\"broad, conclusory allegation, such as negligence\\\" that is\\n\\n\\\"legally insufficient to withstand a motion to dismiss\\\" will\\n\\ntrigger an insurer's duty to defend \\\"whenever the allegations show\\n\\na potential that liability will be established within the insurance\\n\\ncoverage.\\\" Travelers, 414 A.2d at 226.\\n\\n Zurich does point to precedents in which various courts,\\n\\nincluding our own, have, in construing Maine law, concluded that\\n\\n\\n - 7 -\\n\\fa particular complaint in an underlying suit failed to set forth\\n\\nfactual allegations of a type that could trigger an insurer's duty\\n\\nto defend its insured against claims that had been set forth in\\n\\nthat complaint. See Lyman Morse Boatbuilding, Inc. v. N. Assurance\\n\\nCo. of Am., 772 F.3d 960, 966 (1st Cir. 2014); Prime Tanning Co.\\n\\nv. Liberty Mut. Ins. Co., 750 F. Supp. 2d 198, 214-15 (D. Me.\\n\\n2010); Baywood Corp. v. Me. Bonding & Casualty Co., 628 A.2d 1029,\\n\\n1031 (Me. 1993); A. Johnson & Co., Inc. v. Aetna Casualty and\\n\\nSurety Co., 933 F.2d 66, 75 (1st Cir. 1991). But, none of the\\n\\ncomplaints in those cases pled claims for both intentional and\\n\\nunintentional torts and incorporated by reference facts that\\n\\npertained to the former to support the latter in the way that the\\n\\ncomplaint at issue here does. Thus, none of those precedents\\n\\nundermines our conclusion that this complaint is fairly read to\\n\\nset forth -- at least in a \\\"broad, conclusory\\\" fashion, Travelers,\\n\\n414 A.2d at 226 -- factual allegations of negligent conduct by\\n\\nElectricity Maine. Accordingly, none of those precedents supplies\\n\\na basis for concluding that this complaint fails to allege facts\\n\\nthat fall within the risk insured by the Policy, at least insofar\\n\\nas that risk is defined by the Policy's definition of an\\n\\n\\\"occurrence.\\\" Id.\\n\\n III.\\n\\n Zurich separately contends that the Policy's definition\\n\\nof \\\"bodily injury\\\" does not encompass the allegations of misconduct\\n\\n\\n - 8 -\\n\\fby Electricity Maine contained in the complaint at issue. Thus,\\n\\nthe company contends, for this reason as well, that the complaint\\n\\nfails to contain factual allegations that fall within the risk\\n\\ninsured.\\n\\n Electricity Maine acknowledges that the complaint does\\n\\nnot allege that its conduct caused \\\"bodily injury.\\\" The company\\n\\ncontends, however, that Harlor makes clear that the complaint need\\n\\nnot do so to trigger Zurich's duty to defend. We agree.\\n\\n In Harlor, as in this case, the underlying complaint did\\n\\nnot allege \\\"bodily injury.\\\" Harlor, 150 A.3d at 800.\\n\\nNevertheless, the Law Court held that the insurer in that case had\\n\\na duty to defend under the policy at issue, because the tortious\\n\\nconduct alleged in the complaint in the underlying action \\\"could\\n\\nhave resulted in . . . bodily harm due to emotional distress.\\\"\\n\\nId.; see also York Ins. Grp. of Me. v. Lambert, 740 A.2d 984,\\n\\n985-86 (Me. 1999) (holding the same). Moreover, Harlor reached\\n\\nthat conclusion even though the complaint in that underlying action\\n\\ndid not expressly allege \\\"emotional distress.\\\" Harlor, 150 A.3d\\n\\nat 800.\\n\\n Zurich contends that the Policy expressly defines\\n\\n\\\"bodily injury\\\" to encompass \\\"mental injury, shock, [or]\\n\\nfright . . . resulting from bodily injury . . . .\\\" (Emphasis\\n\\nadded). Zurich then goes on to argue that, in consequence, the\\n\\nPolicy's definition of \\\"bodily injury\\\" is best read, impliedly, to\\n\\n\\n - 9 -\\n\\fexclude from its scope \\\"bodily injury\\\" that is caused by emotional\\n\\ndistress. And, Zurich contends, this definition of \\\"bodily injury\\\"\\n\\ndiffers from the definition of \\\"bodily injury\\\" used in the policy\\n\\nthat was at issue in either Harlor or York, such that neither\\n\\nprecedent supports Electricity Maine's position here.\\n\\n But, while the Policy's definition of \\\"bodily injury\\\"\\n\\nstates that it \\\"includes\\\" \\\"mental injury, shock, [or] fright\\n\\nresulting from bodily injury,\\\" (emphasis added), the definition\\n\\ndoes not state that it excludes coverage for \\\"bodily injury\\\" caused\\n\\nby those markers of emotional distress. Thus, because Maine law\\n\\nrequires us to construe ambiguous policy language in favor of the\\n\\ninsured, we reject Zurich's restrictive construction of the\\n\\nPolicy. See Foremost Ins. Co. v. Levesque, 868 A.2d 244, 246 (Me.\\n\\n2005) (\\\"Any ambiguity in an insurance policy must be resolved\\n\\nagainst the insurer and in favor of coverage.\\\").\\n\\n Zurich has one last argument for why, Harlor\\n\\nnotwithstanding, the inclusion of the negligent misrepresentation\\n\\nand negligence claims provides no basis for concluding that the\\n\\ncomplaint sets forth factual allegations that fall within the \\\"risk\\n\\ninsured,\\\" at least insofar as the Policy's definition of \\\"bodily\\n\\ninjury\\\" establishes the risk that Zurich has agreed to insure.\\n\\nZurich points out that a claim for \\\"negligent misrepresentation\\\"\\n\\ncannot give rise to damages for emotional distress under Maine\\n\\nlaw, see Veilleux v. National Broadcasting Co., 206 F.3d 92, 130\\n\\n\\n - 10 -\\n\\f(1st Cir. 2000), and thus that the negligent misrepresentation\\n\\nclaim here cannot be treated as one that seeks damages -- even\\n\\npotentially -- for bodily injury that arises from such emotional\\n\\ndistress. Zurich further contends that the putatively stand-alone\\n\\nnegligence claim is in fact just a mirror of the claim that\\n\\nElectricity Maine committed the tort of negligent\\n\\nmisrepresentation. Accordingly, Zurich argues that, even though\\n\\ndamages for emotional distress often may be recovered for a\\n\\nnegligence claim, see Curran v. Richardson, F. Supp. 2d 228, 231\\n\\n(D. Me. 2006) (citing Curtis v. Porter, 784 A.2d 18, 27 (Me.\\n\\n2001)), the negligence claim that is set forth in the complaint at\\n\\nissue here cannot.\\n\\n But, Zurich's argument overlooks the fact that the Law\\n\\nCourt has, in construing Maine law, held that claims involving\\n\\nnegligent omissions for which there was no statutory duty to\\n\\ndisclose were not negligent misrepresentation claims, but were,\\n\\ninstead, more appropriately characterized as pure negligence\\n\\nclaims. See Binette v. Dyer Library Ass'n, 688 A.2d 898, 905-06\\n\\n(Me. 1996). Here, the face of the complaint is fairly read to\\n\\npermit the conclusion that the negligence claim includes\\n\\nallegations of negligent omissions of just that sort. The\\n\\ncomplaint alleges that Electricity Maine failed to notify its\\n\\ncustomers that their contracts would \\\"automatically renew\\\" at\\n\\nhigher rates and, similarly, failed to notify its customers that\\n\\n\\n - 11 -\\n\\fthey would face a $100 termination fee if they attempted to leave\\n\\ntheir contracts. Thus, in accord with Auto Europe, we conclude\\n\\nthat, even though \\\"a narrow reading of the complaint's factual\\n\\nallegations might preclude coverage . . . the alleged cause of\\n\\naction is sufficiently broad that a modified version of the facts\\n\\ncould be developed at trial to show liability.\\\" 321 F.3d at 68.\\n\\n Zurich does make the sweeping contention in its reply\\n\\nbrief that emotional distress damages under Maine law may be\\n\\nrecovered in negligence claims only for conduct that resulted in\\n\\nphysical injuries, presumably to support the contention that\\n\\ndamages may not be recovered in such claims for physical injuries\\n\\nthat result from emotional distress. But, aside from the fact\\n\\nthat arguments that are made for the first time in reply briefs\\n\\nare waived, see United States v. Torres, 162 F.3d 6, 11 (1st Cir.\\n\\n1998), Zurich does not cite to any precedent that supports its\\n\\nbroad assertion about the limited circumstances in which damages\\n\\nfor emotional distress may be recovered for the tort of negligence\\n\\nin Maine. Nor does Zurich address the fact that the Law Court\\n\\nstated in Curtis that \\\"most tort actions\\\" can give rise to recovery\\n\\nfor emotional distress. Curtis, 784 A.2d at 26. Thus, we treat\\n\\nas waived for lack of development any argument that a negligence\\n\\nclaim for an omission such as was alleged to have occurred here\\n\\ncannot give rise to emotional distress damages under Maine law.\\n\\nSee United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\\n\\n\\n - 12 -\\n\\f None of this is to deny that one might doubt whether, in\\n\\nthe context of this case, the alleged negligence is of a type that\\n\\ncould cause distress that would result in bodily injury. But, the\\n\\nLaw Court has made clear that, for purposes of Maine insurance\\n\\nlaw, where \\\"general allegations for the particular claims asserted\\n\\nin the underlying complaint . . . could potentially support an\\n\\naward of covered damages for bodily injury caused by emotional\\n\\ndistress,\\\" the duty to defend exists. Harlor, 150 A.3d at 799\\n\\n(emphasis added).\\n\\n IV.\\n\\n For the foregoing reasons we affirm the District Court's\\n\\ndecisions granting summary judgment in favor of Electricity Maine\\n\\nand denying the appellants' Motion for Summary Judgment. The\\n\\nparties shall bear their own costs.\\n\\n\\n\\n\\n - 13 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4407514/\", \"author_raw\": \"BARRON, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HOWARD"},"judge2":{"kind":"string","value":"BOUDIN"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4630261/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: ZURICH AMERICAN INSURANCE COMPANY, Plaintiff, Appellant, v. ELECTRICITY MAINE, LLC ; Emile Clavet; Kevin Dean; Spark HoldCo, LLC ; Provider Power, LLC ; Katherine Veileux and Jennifer Chon, Individually and Behalf of All Other Similarly Situated Parties, Defendants, Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1968\n\n ZURICH AMERICAN INSURANCE COMPANY,\n\n Plaintiff, Appellant,\n\n v.\n\n ELECTRICITY MAINE, LLC; EMILE CLAVET; KEVIN DEAN;\n SPARK HOLDCO, LLC; PROVIDER POWER, LLC; KATHERINE VEILEUX AND\n JENNIFER CHON, individually and behalf of all other similarly\n situated parties,\n\n Defendants, Appellees.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n\n [Hon. Nancy Torresen, Chief U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Boudin and Barron, Circuit Judges.\n\n\n John S. Whitman, Esq., with whom Richardson, Whitman, Large,\n& Badger were on brief for appellant.\n Timothy E. Steigelman, with whom Melissa A. Hewey, and\nDrummond Woodsum were on brief for appellees.\n\n\n June 17, 2019\n\f BARRON, Circuit Judge. Electricity Maine LLC is a\n\nprivate energy company that serves customers in Maine. It held a\n\nD&O insurance policy (the \"Policy\") with Zurich American Insurance\n\nCo. (\"Zurich\") when, in November of 2015, a class action was\n\nbrought against it, Spark Holco LLC, Emile Clavet, and Kevin Dean\n\n(together \"Electricity Maine\"). The named plaintiffs were two of\n\nElectricity Maine's customers, Jennifer Chon and Katherine\n\nVeilleux. They sought to represent a class of nearly 200,000 of\n\nthe company's customers. The complaint alleged that Electricity\n\nMaine had engaged in misconduct that resulted in customers\n\nreceiving higher bills than Electricity Maine had represented that\n\nthey would be. The complaint sought class-wide damages totaling\n\napproximately $35 million for a variety of Maine state common law\n\nclaims, as well as for claims under the federal Racketeer\n\nInfluenced and Corrupt Organizations Act (\"RICO\"), 18 U.S.C. §§\n\n1962, 1964; and the Maine Unfair Trade Practices Act, Me. Rev.\n\nStat. Ann. tit. 5 § 207.\n\n Electricity Maine tendered notice of the suit to Zurich.\n\nZurich then initiated the present action against Electricity Maine\n\nin the United States District Court for the District of Maine on\n\nMay 3, 2017, based on diversity jurisdiction. 28 U.S.C. § 1332.\n\nZurich seeks a declaratory judgment that it has no duty to defend\n\nElectricity Maine against the underlying action. Zurich contends\n\n\n\n\n - 2 -\n\fthat Electricity Maine's policy1 with Zurich provides, in relevant\n\npart, that Zurich has a duty to defend Electricity Maine against\n\nany lawsuit that seeks damages for \"bodily injury\" caused by an\n\n\"occurrence\" and that the complaint in the underlying action fails\n\nto allege that Electricity Maine engaged in conduct that qualifies\n\nas an \"occurrence\" or that caused any \"bodily injury.\"\n\n Zurich and Electricity Maine cross-moved for summary\n\njudgment on a stipulated record. The District Court ruled for\n\nElectricity Maine. Zurich Am. Ins. Co. v. Electricity Maine LLC,\n\n325 F. Supp. 3d 198, 202-03 (D. Me. 2018). This appeal followed.\n\nWe affirm.\n\n I.\n\n We review the District Court's decisions on the parties'\n\nmotions for summary judgment de novo. See Utica Mut. Ins. Co. v.\n\nHerbert H. Landy Ins. Agency, Inc., 820 F.3d 36, 41 (1st Cir.\n\n2016). We must affirm the judgments below if there is no genuine\n\nissue of material fact in dispute and the District Court's\n\nconclusions are correct as a matter of law. See id.\n\n The parties agree that the only issues presented on\n\nappeal concern the District Court's interpretation of the relevant\n\nprovisions of the Policy. Those issues present matters of law,\n\n\n 1 The terms of the Policy were set forth in three successive\ncontracts. The parties agree that the relevant language is\nidentical from one contract to the next, and, therefore, should be\ntreated as one policy.\n\n\n - 3 -\n\fwhich we review de novo. Massamont Ins. Agency, Inc. v. Utica\n\nMut. Ins. Co., 489 F.3d 71, 72 (1st Cir. 2007).\n\n The parties agree that Maine law controls the\n\ninterpretive questions at issue on appeal. Under Maine law, \"[i]f\n\nthe allegations in the underlying . . . action are within the risk\n\ninsured against and there is any potential basis for recovery, the\n\ninsurer must defend the insured regardless of the actual facts on\n\nwhich the insured's ultimate liability may be based.\" Elliott v.\n\nHanover Ins. Co., 711 A.2d 1310, 1312 (Me. 1998).\n\n To determine if the allegations in the underlying action\n\nare within the risk insured, we must \"compar[e] the complaint with\n\nthe terms of the insurance contract.\" Id. The key terms in the\n\nPolicy that define the \"risk insured\" are \"occurrence\" and \"bodily\n\ninjury.\"\n\n II.\n\n The Policy defines an \"occurrence\" to be \"an accident,\n\nincluding continuous or repeated exposure to substantially the\n\nsame general harmful conditions.\" The Policy does not define what\n\nconstitutes an \"accident,\" but the Maine Law Court (the \"Law\n\nCourt\") has explained that an \"accident\" is \"commonly understood\n\nto mean . . . an event that takes place without one's forethought\n\nor expectation; an undesigned, sudden, and unexpected event.\"\n\nKelley v. N.E. Ins. Co., 168 A.3d 779, 782 (Me. 2017) (quoting\n\nPatrick v. J.B. Ham Co., 111 A. 912, 915 (Me. 1921)).\n\n\n - 4 -\n\f The complaint in the underlying action sets forth a\n\nnumber of claims for intentional torts, but also includes a claim\n\nfor \"negligence\" and a claim for \"negligent misrepresentation.\"\n\nThe negligence and negligent misrepresentation claims would appear\n\nto seek recovery for the kind of conduct that fits comfortably\n\nwithin the definition of an \"accident,\" as these claims require\n\nproof only of \"event[s] that take[] place without one's forethought\n\nor expectation.\" Kelley, 168 A.3d at 782. Indeed, the Law Court\n\nhas held multiple times that \"broad conclusory allegations of\n\n'negligence,'\" pled in the alternative to claims that require proof\n\nof intentional misconduct, constitute allegations of \"accidental\"\n\nor \"[un]intentional\" activity that suffice to trigger the duty to\n\ndefend under policies that cover \"accidents.\" Travelers Indem.\n\nCo. v. Dingwell, 414 A.2d 220, 225-27 (Me. 1980) (finding a duty\n\nto defend for an \"accident[]\" where the complaint alleged negligent\n\nacts in the alternative to intentional conduct); Lavoie v.\n\nDorchester Mut. Fire Ins. Co., 560 A.2d 570, 571 (Me. 1989)\n\n(finding a duty to defend under a policy with an exclusion for\n\n\"intentional\" acts where a complaint alleged negligence as an\n\nalternative to its intentional assault and battery claims).\n\n To blunt the force of this precedent, Zurich relies on\n\ntwo Law Court cases -- Allocca v. York Ins. Co. of Maine, 169 A.3d\n\n938 (Me. 2017) and Vermont Mut. Ins. Co. v. Ben-Ami, 193 A.3d 178\n\n(Me. 2018) -- that were decided after Travelers and Lavoie. But,\n\n\n - 5 -\n\fneither Allocca nor Ben-Ami involved complaints that, like the\n\ncomplaint at issue here, expressly allege claims for negligence\n\n(or negligent misrepresentation) alongside claims for intentional\n\ntorts. Allocca, 169 A.3d at 940-41; Ben-Ami, 193 A.3d at 180-81.\n\n Zurich also attempts to distinguish Travelers and Lavoie\n\nfrom the present case on the ground that, unlike in those cases,\n\nthe facts alleged in the complaint here \"make it impossible to\n\nsustain the fiction that Electricity Maine was 'negligent' and\n\nexpected no harm to befall its customers.\" Zurich is right that\n\nthe portion of the complaint that sets forth the RICO claims,\n\nalleges that Electricity Maine promised its customers rates that\n\nwere lower than those offered by the public utilities, raised those\n\nrates unexpectedly after the first year of the customers'\n\ncontracts, notified its customers about the rate increases through\n\nemails that were sent to the customers' spam folders, and required\n\nthat customers pay a $100 fee if they wanted to leave these more\n\nexpensive contracts. And, Zurich is also right that this portion\n\nof the complaint does allege that the company engaged in that\n\nconduct intentionally, just as one would expect, given that RICO\n\nclaims seek recovery for intentional torts.\n\n But we do not see why, when the complaint goes on to\n\nincorporate by reference the same factual allegations into its\n\nclaims for negligence and negligent misrepresentation, it must be\n\nread to be alleging, with respect to those claims, that Electricity\n\n\n - 6 -\n\fMaine acted intentionally rather than inadvertently. Those\n\nclaims, unlike the RICO claims, do not require proof of intentional\n\nconduct. We note, moreover, that this conclusion accords with\n\nHarlor v. Amica Mut. Ins. Co, 150 A.3d 793 (Me. 2016). There, the\n\nLaw Court explained that the duty to defend is triggered so long\n\nas a complaint \"reveals . . . any legal or factual basis that could\n\npotentially be developed at trial\" for proving conduct that would\n\nfall within the risk insured. Id. at 797 (emphasis added). And,\n\nas we explained in Auto Europe, LLC v. Conn. Indem. Co., after\n\ncanvassing Maine law, the duty to defend is triggered under the\n\nstate's law \"where a narrow reading of the complaint's factual\n\nallegations might preclude coverage, but the alleged cause of\n\naction is sufficiently broad that a modified version of the facts\n\ncould be developed at trial to show liability.\" 321 F.3d 60, 68\n\n(1st Cir. 2003).\n\n That is not to say that either the negligent\n\nmisrepresentation claim or the negligence claim has merit. But,\n\neven a \"broad, conclusory allegation, such as negligence\" that is\n\n\"legally insufficient to withstand a motion to dismiss\" will\n\ntrigger an insurer's duty to defend \"whenever the allegations show\n\na potential that liability will be established within the insurance\n\ncoverage.\" Travelers, 414 A.2d at 226.\n\n Zurich does point to precedents in which various courts,\n\nincluding our own, have, in construing Maine law, concluded that\n\n\n - 7 -\n\fa particular complaint in an underlying suit failed to set forth\n\nfactual allegations of a type that could trigger an insurer's duty\n\nto defend its insured against claims that had been set forth in\n\nthat complaint. See Lyman Morse Boatbuilding, Inc. v. N. Assurance\n\nCo. of Am., 772 F.3d 960, 966 (1st Cir. 2014); Prime Tanning Co.\n\nv. Liberty Mut. Ins. Co., 750 F. Supp. 2d 198, 214-15 (D. Me.\n\n2010); Baywood Corp. v. Me. Bonding & Casualty Co., 628 A.2d 1029,\n\n1031 (Me. 1993); A. Johnson & Co., Inc. v. Aetna Casualty and\n\nSurety Co., 933 F.2d 66, 75 (1st Cir. 1991). But, none of the\n\ncomplaints in those cases pled claims for both intentional and\n\nunintentional torts and incorporated by reference facts that\n\npertained to the former to support the latter in the way that the\n\ncomplaint at issue here does. Thus, none of those precedents\n\nundermines our conclusion that this complaint is fairly read to\n\nset forth -- at least in a \"broad, conclusory\" fashion, Travelers,\n\n414 A.2d at 226 -- factual allegations of negligent conduct by\n\nElectricity Maine. Accordingly, none of those precedents supplies\n\na basis for concluding that this complaint fails to allege facts\n\nthat fall within the risk insured by the Policy, at least insofar\n\nas that risk is defined by the Policy's definition of an\n\n\"occurrence.\" Id.\n\n III.\n\n Zurich separately contends that the Policy's definition\n\nof \"bodily injury\" does not encompass the allegations of misconduct\n\n\n - 8 -\n\fby Electricity Maine contained in the complaint at issue. Thus,\n\nthe company contends, for this reason as well, that the complaint\n\nfails to contain factual allegations that fall within the risk\n\ninsured.\n\n Electricity Maine acknowledges that the complaint does\n\nnot allege that its conduct caused \"bodily injury.\" The company\n\ncontends, however, that Harlor makes clear that the complaint need\n\nnot do so to trigger Zurich's duty to defend. We agree.\n\n In Harlor, as in this case, the underlying complaint did\n\nnot allege \"bodily injury.\" Harlor, 150 A.3d at 800.\n\nNevertheless, the Law Court held that the insurer in that case had\n\na duty to defend under the policy at issue, because the tortious\n\nconduct alleged in the complaint in the underlying action \"could\n\nhave resulted in . . . bodily harm due to emotional distress.\"\n\nId.; see also York Ins. Grp. of Me. v. Lambert, 740 A.2d 984,\n\n985-86 (Me. 1999) (holding the same). Moreover, Harlor reached\n\nthat conclusion even though the complaint in that underlying action\n\ndid not expressly allege \"emotional distress.\" Harlor, 150 A.3d\n\nat 800.\n\n Zurich contends that the Policy expressly defines\n\n\"bodily injury\" to encompass \"mental injury, shock, [or]\n\nfright . . . resulting from bodily injury . . . .\" (Emphasis\n\nadded). Zurich then goes on to argue that, in consequence, the\n\nPolicy's definition of \"bodily injury\" is best read, impliedly, to\n\n\n - 9 -\n\fexclude from its scope \"bodily injury\" that is caused by emotional\n\ndistress. And, Zurich contends, this definition of \"bodily injury\"\n\ndiffers from the definition of \"bodily injury\" used in the policy\n\nthat was at issue in either Harlor or York, such that neither\n\nprecedent supports Electricity Maine's position here.\n\n But, while the Policy's definition of \"bodily injury\"\n\nstates that it \"includes\" \"mental injury, shock, [or] fright\n\nresulting from bodily injury,\" (emphasis added), the definition\n\ndoes not state that it excludes coverage for \"bodily injury\" caused\n\nby those markers of emotional distress. Thus, because Maine law\n\nrequires us to construe ambiguous policy language in favor of the\n\ninsured, we reject Zurich's restrictive construction of the\n\nPolicy. See Foremost Ins. Co. v. Levesque, 868 A.2d 244, 246 (Me.\n\n2005) (\"Any ambiguity in an insurance policy must be resolved\n\nagainst the insurer and in favor of coverage.\").\n\n Zurich has one last argument for why, Harlor\n\nnotwithstanding, the inclusion of the negligent misrepresentation\n\nand negligence claims provides no basis for concluding that the\n\ncomplaint sets forth factual allegations that fall within the \"risk\n\ninsured,\" at least insofar as the Policy's definition of \"bodily\n\ninjury\" establishes the risk that Zurich has agreed to insure.\n\nZurich points out that a claim for \"negligent misrepresentation\"\n\ncannot give rise to damages for emotional distress under Maine\n\nlaw, see Veilleux v. National Broadcasting Co., 206 F.3d 92, 130\n\n\n - 10 -\n\f(1st Cir. 2000), and thus that the negligent misrepresentation\n\nclaim here cannot be treated as one that seeks damages -- even\n\npotentially -- for bodily injury that arises from such emotional\n\ndistress. Zurich further contends that the putatively stand-alone\n\nnegligence claim is in fact just a mirror of the claim that\n\nElectricity Maine committed the tort of negligent\n\nmisrepresentation. Accordingly, Zurich argues that, even though\n\ndamages for emotional distress often may be recovered for a\n\nnegligence claim, see Curran v. Richardson, F. Supp. 2d 228, 231\n\n(D. Me. 2006) (citing Curtis v. Porter, 784 A.2d 18, 27 (Me.\n\n2001)), the negligence claim that is set forth in the complaint at\n\nissue here cannot.\n\n But, Zurich's argument overlooks the fact that the Law\n\nCourt has, in construing Maine law, held that claims involving\n\nnegligent omissions for which there was no statutory duty to\n\ndisclose were not negligent misrepresentation claims, but were,\n\ninstead, more appropriately characterized as pure negligence\n\nclaims. See Binette v. Dyer Library Ass'n, 688 A.2d 898, 905-06\n\n(Me. 1996). Here, the face of the complaint is fairly read to\n\npermit the conclusion that the negligence claim includes\n\nallegations of negligent omissions of just that sort. The\n\ncomplaint alleges that Electricity Maine failed to notify its\n\ncustomers that their contracts would \"automatically renew\" at\n\nhigher rates and, similarly, failed to notify its customers that\n\n\n - 11 -\n\fthey would face a $100 termination fee if they attempted to leave\n\ntheir contracts. Thus, in accord with Auto Europe, we conclude\n\nthat, even though \"a narrow reading of the complaint's factual\n\nallegations might preclude coverage . . . the alleged cause of\n\naction is sufficiently broad that a modified version of the facts\n\ncould be developed at trial to show liability.\" 321 F.3d at 68.\n\n Zurich does make the sweeping contention in its reply\n\nbrief that emotional distress damages under Maine law may be\n\nrecovered in negligence claims only for conduct that resulted in\n\nphysical injuries, presumably to support the contention that\n\ndamages may not be recovered in such claims for physical injuries\n\nthat result from emotional distress. But, aside from the fact\n\nthat arguments that are made for the first time in reply briefs\n\nare waived, see United States v. Torres, 162 F.3d 6, 11 (1st Cir.\n\n1998), Zurich does not cite to any precedent that supports its\n\nbroad assertion about the limited circumstances in which damages\n\nfor emotional distress may be recovered for the tort of negligence\n\nin Maine. Nor does Zurich address the fact that the Law Court\n\nstated in Curtis that \"most tort actions\" can give rise to recovery\n\nfor emotional distress. Curtis, 784 A.2d at 26. Thus, we treat\n\nas waived for lack of development any argument that a negligence\n\nclaim for an omission such as was alleged to have occurred here\n\ncannot give rise to emotional distress damages under Maine law.\n\nSee United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\n\n\n - 12 -\n\f None of this is to deny that one might doubt whether, in\n\nthe context of this case, the alleged negligence is of a type that\n\ncould cause distress that would result in bodily injury. But, the\n\nLaw Court has made clear that, for purposes of Maine insurance\n\nlaw, where \"general allegations for the particular claims asserted\n\nin the underlying complaint . . . could potentially support an\n\naward of covered damages for bodily injury caused by emotional\n\ndistress,\" the duty to defend exists. Harlor, 150 A.3d at 799\n\n(emphasis added).\n\n IV.\n\n For the foregoing reasons we affirm the District Court's\n\ndecisions granting summary judgment in favor of Electricity Maine\n\nand denying the appellants' Motion for Summary Judgment. The\n\nparties shall bear their own costs.\n\n\n\n\n - 13 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: ZURICH AMERICAN INSURANCE COMPANY, Plaintiff, Appellant, v. ELECTRICITY MAINE, LLC ; Emile Clavet; Kevin Dean; Spark HoldCo, LLC ; Provider Power, LLC ; Katherine Veileux and Jennifer Chon, Individually and Behalf of All Other Similarly Situated Parties, Defendants, Appellees.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1968\\n\\n ZURICH AMERICAN INSURANCE COMPANY,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n ELECTRICITY MAINE, LLC; EMILE CLAVET; KEVIN DEAN;\\n SPARK HOLDCO, LLC; PROVIDER POWER, LLC; KATHERINE VEILEUX AND\\n JENNIFER CHON, individually and behalf of all other similarly\\n situated parties,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. Nancy Torresen, Chief U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Boudin and Barron, Circuit Judges.\\n\\n\\n John S. Whitman, Esq., with whom Richardson, Whitman, Large,\\n& Badger were on brief for appellant.\\n Timothy E. Steigelman, with whom Melissa A. Hewey, and\\nDrummond Woodsum were on brief for appellees.\\n\\n\\n June 17, 2019\\n\\f BARRON, Circuit Judge. Electricity Maine LLC is a\\n\\nprivate energy company that serves customers in Maine. It held a\\n\\nD&O insurance policy (the \\\"Policy\\\") with Zurich American Insurance\\n\\nCo. (\\\"Zurich\\\") when, in November of 2015, a class action was\\n\\nbrought against it, Spark Holco LLC, Emile Clavet, and Kevin Dean\\n\\n(together \\\"Electricity Maine\\\"). The named plaintiffs were two of\\n\\nElectricity Maine's customers, Jennifer Chon and Katherine\\n\\nVeilleux. They sought to represent a class of nearly 200,000 of\\n\\nthe company's customers. The complaint alleged that Electricity\\n\\nMaine had engaged in misconduct that resulted in customers\\n\\nreceiving higher bills than Electricity Maine had represented that\\n\\nthey would be. The complaint sought class-wide damages totaling\\n\\napproximately $35 million for a variety of Maine state common law\\n\\nclaims, as well as for claims under the federal Racketeer\\n\\nInfluenced and Corrupt Organizations Act (\\\"RICO\\\"), 18 U.S.C. §§\\n\\n1962, 1964; and the Maine Unfair Trade Practices Act, Me. Rev.\\n\\nStat. Ann. tit. 5 § 207.\\n\\n Electricity Maine tendered notice of the suit to Zurich.\\n\\nZurich then initiated the present action against Electricity Maine\\n\\nin the United States District Court for the District of Maine on\\n\\nMay 3, 2017, based on diversity jurisdiction. 28 U.S.C. § 1332.\\n\\nZurich seeks a declaratory judgment that it has no duty to defend\\n\\nElectricity Maine against the underlying action. Zurich contends\\n\\n\\n\\n\\n - 2 -\\n\\fthat Electricity Maine's policy1 with Zurich provides, in relevant\\n\\npart, that Zurich has a duty to defend Electricity Maine against\\n\\nany lawsuit that seeks damages for \\\"bodily injury\\\" caused by an\\n\\n\\\"occurrence\\\" and that the complaint in the underlying action fails\\n\\nto allege that Electricity Maine engaged in conduct that qualifies\\n\\nas an \\\"occurrence\\\" or that caused any \\\"bodily injury.\\\"\\n\\n Zurich and Electricity Maine cross-moved for summary\\n\\njudgment on a stipulated record. The District Court ruled for\\n\\nElectricity Maine. Zurich Am. Ins. Co. v. Electricity Maine LLC,\\n\\n325 F. Supp. 3d 198, 202-03 (D. Me. 2018). This appeal followed.\\n\\nWe affirm.\\n\\n I.\\n\\n We review the District Court's decisions on the parties'\\n\\nmotions for summary judgment de novo. See Utica Mut. Ins. Co. v.\\n\\nHerbert H. Landy Ins. Agency, Inc., 820 F.3d 36, 41 (1st Cir.\\n\\n2016). We must affirm the judgments below if there is no genuine\\n\\nissue of material fact in dispute and the District Court's\\n\\nconclusions are correct as a matter of law. See id.\\n\\n The parties agree that the only issues presented on\\n\\nappeal concern the District Court's interpretation of the relevant\\n\\nprovisions of the Policy. Those issues present matters of law,\\n\\n\\n 1 The terms of the Policy were set forth in three successive\\ncontracts. The parties agree that the relevant language is\\nidentical from one contract to the next, and, therefore, should be\\ntreated as one policy.\\n\\n\\n - 3 -\\n\\fwhich we review de novo. Massamont Ins. Agency, Inc. v. Utica\\n\\nMut. Ins. Co., 489 F.3d 71, 72 (1st Cir. 2007).\\n\\n The parties agree that Maine law controls the\\n\\ninterpretive questions at issue on appeal. Under Maine law, \\\"[i]f\\n\\nthe allegations in the underlying . . . action are within the risk\\n\\ninsured against and there is any potential basis for recovery, the\\n\\ninsurer must defend the insured regardless of the actual facts on\\n\\nwhich the insured's ultimate liability may be based.\\\" Elliott v.\\n\\nHanover Ins. Co., 711 A.2d 1310, 1312 (Me. 1998).\\n\\n To determine if the allegations in the underlying action\\n\\nare within the risk insured, we must \\\"compar[e] the complaint with\\n\\nthe terms of the insurance contract.\\\" Id. The key terms in the\\n\\nPolicy that define the \\\"risk insured\\\" are \\\"occurrence\\\" and \\\"bodily\\n\\ninjury.\\\"\\n\\n II.\\n\\n The Policy defines an \\\"occurrence\\\" to be \\\"an accident,\\n\\nincluding continuous or repeated exposure to substantially the\\n\\nsame general harmful conditions.\\\" The Policy does not define what\\n\\nconstitutes an \\\"accident,\\\" but the Maine Law Court (the \\\"Law\\n\\nCourt\\\") has explained that an \\\"accident\\\" is \\\"commonly understood\\n\\nto mean . . . an event that takes place without one's forethought\\n\\nor expectation; an undesigned, sudden, and unexpected event.\\\"\\n\\nKelley v. N.E. Ins. Co., 168 A.3d 779, 782 (Me. 2017) (quoting\\n\\nPatrick v. J.B. Ham Co., 111 A. 912, 915 (Me. 1921)).\\n\\n\\n - 4 -\\n\\f The complaint in the underlying action sets forth a\\n\\nnumber of claims for intentional torts, but also includes a claim\\n\\nfor \\\"negligence\\\" and a claim for \\\"negligent misrepresentation.\\\"\\n\\nThe negligence and negligent misrepresentation claims would appear\\n\\nto seek recovery for the kind of conduct that fits comfortably\\n\\nwithin the definition of an \\\"accident,\\\" as these claims require\\n\\nproof only of \\\"event[s] that take[] place without one's forethought\\n\\nor expectation.\\\" Kelley, 168 A.3d at 782. Indeed, the Law Court\\n\\nhas held multiple times that \\\"broad conclusory allegations of\\n\\n'negligence,'\\\" pled in the alternative to claims that require proof\\n\\nof intentional misconduct, constitute allegations of \\\"accidental\\\"\\n\\nor \\\"[un]intentional\\\" activity that suffice to trigger the duty to\\n\\ndefend under policies that cover \\\"accidents.\\\" Travelers Indem.\\n\\nCo. v. Dingwell, 414 A.2d 220, 225-27 (Me. 1980) (finding a duty\\n\\nto defend for an \\\"accident[]\\\" where the complaint alleged negligent\\n\\nacts in the alternative to intentional conduct); Lavoie v.\\n\\nDorchester Mut. Fire Ins. Co., 560 A.2d 570, 571 (Me. 1989)\\n\\n(finding a duty to defend under a policy with an exclusion for\\n\\n\\\"intentional\\\" acts where a complaint alleged negligence as an\\n\\nalternative to its intentional assault and battery claims).\\n\\n To blunt the force of this precedent, Zurich relies on\\n\\ntwo Law Court cases -- Allocca v. York Ins. Co. of Maine, 169 A.3d\\n\\n938 (Me. 2017) and Vermont Mut. Ins. Co. v. Ben-Ami, 193 A.3d 178\\n\\n(Me. 2018) -- that were decided after Travelers and Lavoie. But,\\n\\n\\n - 5 -\\n\\fneither Allocca nor Ben-Ami involved complaints that, like the\\n\\ncomplaint at issue here, expressly allege claims for negligence\\n\\n(or negligent misrepresentation) alongside claims for intentional\\n\\ntorts. Allocca, 169 A.3d at 940-41; Ben-Ami, 193 A.3d at 180-81.\\n\\n Zurich also attempts to distinguish Travelers and Lavoie\\n\\nfrom the present case on the ground that, unlike in those cases,\\n\\nthe facts alleged in the complaint here \\\"make it impossible to\\n\\nsustain the fiction that Electricity Maine was 'negligent' and\\n\\nexpected no harm to befall its customers.\\\" Zurich is right that\\n\\nthe portion of the complaint that sets forth the RICO claims,\\n\\nalleges that Electricity Maine promised its customers rates that\\n\\nwere lower than those offered by the public utilities, raised those\\n\\nrates unexpectedly after the first year of the customers'\\n\\ncontracts, notified its customers about the rate increases through\\n\\nemails that were sent to the customers' spam folders, and required\\n\\nthat customers pay a $100 fee if they wanted to leave these more\\n\\nexpensive contracts. And, Zurich is also right that this portion\\n\\nof the complaint does allege that the company engaged in that\\n\\nconduct intentionally, just as one would expect, given that RICO\\n\\nclaims seek recovery for intentional torts.\\n\\n But we do not see why, when the complaint goes on to\\n\\nincorporate by reference the same factual allegations into its\\n\\nclaims for negligence and negligent misrepresentation, it must be\\n\\nread to be alleging, with respect to those claims, that Electricity\\n\\n\\n - 6 -\\n\\fMaine acted intentionally rather than inadvertently. Those\\n\\nclaims, unlike the RICO claims, do not require proof of intentional\\n\\nconduct. We note, moreover, that this conclusion accords with\\n\\nHarlor v. Amica Mut. Ins. Co, 150 A.3d 793 (Me. 2016). There, the\\n\\nLaw Court explained that the duty to defend is triggered so long\\n\\nas a complaint \\\"reveals . . . any legal or factual basis that could\\n\\npotentially be developed at trial\\\" for proving conduct that would\\n\\nfall within the risk insured. Id. at 797 (emphasis added). And,\\n\\nas we explained in Auto Europe, LLC v. Conn. Indem. Co., after\\n\\ncanvassing Maine law, the duty to defend is triggered under the\\n\\nstate's law \\\"where a narrow reading of the complaint's factual\\n\\nallegations might preclude coverage, but the alleged cause of\\n\\naction is sufficiently broad that a modified version of the facts\\n\\ncould be developed at trial to show liability.\\\" 321 F.3d 60, 68\\n\\n(1st Cir. 2003).\\n\\n That is not to say that either the negligent\\n\\nmisrepresentation claim or the negligence claim has merit. But,\\n\\neven a \\\"broad, conclusory allegation, such as negligence\\\" that is\\n\\n\\\"legally insufficient to withstand a motion to dismiss\\\" will\\n\\ntrigger an insurer's duty to defend \\\"whenever the allegations show\\n\\na potential that liability will be established within the insurance\\n\\ncoverage.\\\" Travelers, 414 A.2d at 226.\\n\\n Zurich does point to precedents in which various courts,\\n\\nincluding our own, have, in construing Maine law, concluded that\\n\\n\\n - 7 -\\n\\fa particular complaint in an underlying suit failed to set forth\\n\\nfactual allegations of a type that could trigger an insurer's duty\\n\\nto defend its insured against claims that had been set forth in\\n\\nthat complaint. See Lyman Morse Boatbuilding, Inc. v. N. Assurance\\n\\nCo. of Am., 772 F.3d 960, 966 (1st Cir. 2014); Prime Tanning Co.\\n\\nv. Liberty Mut. Ins. Co., 750 F. Supp. 2d 198, 214-15 (D. Me.\\n\\n2010); Baywood Corp. v. Me. Bonding & Casualty Co., 628 A.2d 1029,\\n\\n1031 (Me. 1993); A. Johnson & Co., Inc. v. Aetna Casualty and\\n\\nSurety Co., 933 F.2d 66, 75 (1st Cir. 1991). But, none of the\\n\\ncomplaints in those cases pled claims for both intentional and\\n\\nunintentional torts and incorporated by reference facts that\\n\\npertained to the former to support the latter in the way that the\\n\\ncomplaint at issue here does. Thus, none of those precedents\\n\\nundermines our conclusion that this complaint is fairly read to\\n\\nset forth -- at least in a \\\"broad, conclusory\\\" fashion, Travelers,\\n\\n414 A.2d at 226 -- factual allegations of negligent conduct by\\n\\nElectricity Maine. Accordingly, none of those precedents supplies\\n\\na basis for concluding that this complaint fails to allege facts\\n\\nthat fall within the risk insured by the Policy, at least insofar\\n\\nas that risk is defined by the Policy's definition of an\\n\\n\\\"occurrence.\\\" Id.\\n\\n III.\\n\\n Zurich separately contends that the Policy's definition\\n\\nof \\\"bodily injury\\\" does not encompass the allegations of misconduct\\n\\n\\n - 8 -\\n\\fby Electricity Maine contained in the complaint at issue. Thus,\\n\\nthe company contends, for this reason as well, that the complaint\\n\\nfails to contain factual allegations that fall within the risk\\n\\ninsured.\\n\\n Electricity Maine acknowledges that the complaint does\\n\\nnot allege that its conduct caused \\\"bodily injury.\\\" The company\\n\\ncontends, however, that Harlor makes clear that the complaint need\\n\\nnot do so to trigger Zurich's duty to defend. We agree.\\n\\n In Harlor, as in this case, the underlying complaint did\\n\\nnot allege \\\"bodily injury.\\\" Harlor, 150 A.3d at 800.\\n\\nNevertheless, the Law Court held that the insurer in that case had\\n\\na duty to defend under the policy at issue, because the tortious\\n\\nconduct alleged in the complaint in the underlying action \\\"could\\n\\nhave resulted in . . . bodily harm due to emotional distress.\\\"\\n\\nId.; see also York Ins. Grp. of Me. v. Lambert, 740 A.2d 984,\\n\\n985-86 (Me. 1999) (holding the same). Moreover, Harlor reached\\n\\nthat conclusion even though the complaint in that underlying action\\n\\ndid not expressly allege \\\"emotional distress.\\\" Harlor, 150 A.3d\\n\\nat 800.\\n\\n Zurich contends that the Policy expressly defines\\n\\n\\\"bodily injury\\\" to encompass \\\"mental injury, shock, [or]\\n\\nfright . . . resulting from bodily injury . . . .\\\" (Emphasis\\n\\nadded). Zurich then goes on to argue that, in consequence, the\\n\\nPolicy's definition of \\\"bodily injury\\\" is best read, impliedly, to\\n\\n\\n - 9 -\\n\\fexclude from its scope \\\"bodily injury\\\" that is caused by emotional\\n\\ndistress. And, Zurich contends, this definition of \\\"bodily injury\\\"\\n\\ndiffers from the definition of \\\"bodily injury\\\" used in the policy\\n\\nthat was at issue in either Harlor or York, such that neither\\n\\nprecedent supports Electricity Maine's position here.\\n\\n But, while the Policy's definition of \\\"bodily injury\\\"\\n\\nstates that it \\\"includes\\\" \\\"mental injury, shock, [or] fright\\n\\nresulting from bodily injury,\\\" (emphasis added), the definition\\n\\ndoes not state that it excludes coverage for \\\"bodily injury\\\" caused\\n\\nby those markers of emotional distress. Thus, because Maine law\\n\\nrequires us to construe ambiguous policy language in favor of the\\n\\ninsured, we reject Zurich's restrictive construction of the\\n\\nPolicy. See Foremost Ins. Co. v. Levesque, 868 A.2d 244, 246 (Me.\\n\\n2005) (\\\"Any ambiguity in an insurance policy must be resolved\\n\\nagainst the insurer and in favor of coverage.\\\").\\n\\n Zurich has one last argument for why, Harlor\\n\\nnotwithstanding, the inclusion of the negligent misrepresentation\\n\\nand negligence claims provides no basis for concluding that the\\n\\ncomplaint sets forth factual allegations that fall within the \\\"risk\\n\\ninsured,\\\" at least insofar as the Policy's definition of \\\"bodily\\n\\ninjury\\\" establishes the risk that Zurich has agreed to insure.\\n\\nZurich points out that a claim for \\\"negligent misrepresentation\\\"\\n\\ncannot give rise to damages for emotional distress under Maine\\n\\nlaw, see Veilleux v. National Broadcasting Co., 206 F.3d 92, 130\\n\\n\\n - 10 -\\n\\f(1st Cir. 2000), and thus that the negligent misrepresentation\\n\\nclaim here cannot be treated as one that seeks damages -- even\\n\\npotentially -- for bodily injury that arises from such emotional\\n\\ndistress. Zurich further contends that the putatively stand-alone\\n\\nnegligence claim is in fact just a mirror of the claim that\\n\\nElectricity Maine committed the tort of negligent\\n\\nmisrepresentation. Accordingly, Zurich argues that, even though\\n\\ndamages for emotional distress often may be recovered for a\\n\\nnegligence claim, see Curran v. Richardson, F. Supp. 2d 228, 231\\n\\n(D. Me. 2006) (citing Curtis v. Porter, 784 A.2d 18, 27 (Me.\\n\\n2001)), the negligence claim that is set forth in the complaint at\\n\\nissue here cannot.\\n\\n But, Zurich's argument overlooks the fact that the Law\\n\\nCourt has, in construing Maine law, held that claims involving\\n\\nnegligent omissions for which there was no statutory duty to\\n\\ndisclose were not negligent misrepresentation claims, but were,\\n\\ninstead, more appropriately characterized as pure negligence\\n\\nclaims. See Binette v. Dyer Library Ass'n, 688 A.2d 898, 905-06\\n\\n(Me. 1996). Here, the face of the complaint is fairly read to\\n\\npermit the conclusion that the negligence claim includes\\n\\nallegations of negligent omissions of just that sort. The\\n\\ncomplaint alleges that Electricity Maine failed to notify its\\n\\ncustomers that their contracts would \\\"automatically renew\\\" at\\n\\nhigher rates and, similarly, failed to notify its customers that\\n\\n\\n - 11 -\\n\\fthey would face a $100 termination fee if they attempted to leave\\n\\ntheir contracts. Thus, in accord with Auto Europe, we conclude\\n\\nthat, even though \\\"a narrow reading of the complaint's factual\\n\\nallegations might preclude coverage . . . the alleged cause of\\n\\naction is sufficiently broad that a modified version of the facts\\n\\ncould be developed at trial to show liability.\\\" 321 F.3d at 68.\\n\\n Zurich does make the sweeping contention in its reply\\n\\nbrief that emotional distress damages under Maine law may be\\n\\nrecovered in negligence claims only for conduct that resulted in\\n\\nphysical injuries, presumably to support the contention that\\n\\ndamages may not be recovered in such claims for physical injuries\\n\\nthat result from emotional distress. But, aside from the fact\\n\\nthat arguments that are made for the first time in reply briefs\\n\\nare waived, see United States v. Torres, 162 F.3d 6, 11 (1st Cir.\\n\\n1998), Zurich does not cite to any precedent that supports its\\n\\nbroad assertion about the limited circumstances in which damages\\n\\nfor emotional distress may be recovered for the tort of negligence\\n\\nin Maine. Nor does Zurich address the fact that the Law Court\\n\\nstated in Curtis that \\\"most tort actions\\\" can give rise to recovery\\n\\nfor emotional distress. Curtis, 784 A.2d at 26. Thus, we treat\\n\\nas waived for lack of development any argument that a negligence\\n\\nclaim for an omission such as was alleged to have occurred here\\n\\ncannot give rise to emotional distress damages under Maine law.\\n\\nSee United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\\n\\n\\n - 12 -\\n\\f None of this is to deny that one might doubt whether, in\\n\\nthe context of this case, the alleged negligence is of a type that\\n\\ncould cause distress that would result in bodily injury. But, the\\n\\nLaw Court has made clear that, for purposes of Maine insurance\\n\\nlaw, where \\\"general allegations for the particular claims asserted\\n\\nin the underlying complaint . . . could potentially support an\\n\\naward of covered damages for bodily injury caused by emotional\\n\\ndistress,\\\" the duty to defend exists. Harlor, 150 A.3d at 799\\n\\n(emphasis added).\\n\\n IV.\\n\\n For the foregoing reasons we affirm the District Court's\\n\\ndecisions granting summary judgment in favor of Electricity Maine\\n\\nand denying the appellants' Motion for Summary Judgment. The\\n\\nparties shall bear their own costs.\\n\\n\\n\\n\\n - 13 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2375,"cells":{"id":{"kind":"number","value":4630262,"string":"4,630,262"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Mendez-Baez"},"decision_date":{"kind":"string","value":"2019-06-17"},"docket_number":{"kind":"string","value":"18-1732P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before Howard, Chief Judge, Kayatta and Barron, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"HOWARD, Chief Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\nNo. 18-1732\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n KEVIN JONIEL MÉNDEZ-BÁEZ,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Francisco A. Besosa, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Kayatta and Barron, Circuit Judges.\\n\\n\\n Yassmin Gonzalez-Velez and Gonzalez Velez Law Offices, PSC on\\nbrief for appellant.\\n Julia M. Meconiates, Assistant United States Attorney, Rosa\\nEmilia Rodríguez-Vélez, United States Attorney, and Mariana E.\\nBauzá-Almonte, Assistant United States Attorney, Chief, Appellate\\nDivision, on brief for appellee.\\n\\n\\n\\n June 17, 2019\\n\\f HOWARD, Chief Judge. Appellant Kevin Joniel Méndez-Báez\\n\\nappeals his incarcerative sentence of 60 months, 19 months above\\n\\nthe upper end of the advisory guidelines sentencing range. He\\n\\nargues that the district court erred procedurally in not\\n\\nconsidering all of the 18 U.S.C. § 3553(a) factors and\\n\\nsubstantively in imposing too harsh a sentence. After careful\\n\\nreview, we affirm.\\n\\n I. BACKGROUND\\n\\n On August 24, 2017, Puerto Rico police pulled over a car\\n\\nafter observing its apparently illegal window tint. The driver,\\n\\nMéndez, produced a learner's driving permit and told an officer\\n\\nthat he did not have the car's registration information. While\\n\\ninspecting the vehicle's registration window decal, an officer\\n\\nobserved an extended ammunition magazine attached to a firearm on\\n\\nthe floor of the passenger side of the car. The police ordered\\n\\nMéndez and his passenger, Jorge Roberto Rivera-Báez, out of the\\n\\nvehicle. Neither Méndez -- who had been serving a term of\\n\\nprobation for a prior felony conviction -- nor Rivera had a\\n\\nfirearms permit. The officers placed the two men under arrest and\\n\\nsearched the vehicle, discovering that the firearm was a .40\\n\\ncaliber Model 23 Glock pistol with an extended 29-round magazine\\n\\nattached, loaded with 22 rounds of ammunition. The police also\\n\\nfound two fully loaded 13-round magazines. The pistol had a chip\\n\\nthat modified it to fire as a fully automatic weapon. After\\n\\n\\n - 2 -\\n\\frunning the license plates through their database, the officers\\n\\nlearned that the car had been flagged as \\\"disappeared\\\" by a\\n\\nfinancial institution. At the station, Rivera -- the passenger -\\n\\n- stated that the pistol, the magazines, and the car belonged to\\n\\nhim.\\n\\n A grand jury charged Méndez with being a felon in\\n\\npossession of a firearm and ammunition in violation of 18 U.S.C.\\n\\n§ 922(g). He pled guilty. The pre-sentence report (PSR) prepared\\n\\nby the probation office determined that Méndez's total offense\\n\\nlevel (TOL) was 19 and his criminal history category (CHC) was II,\\n\\nbecause of his previous convictions for attempted murder and\\n\\nrelated firearm offenses and because he committed the instant\\n\\noffense while serving a term of probation. Méndez's guidelines\\n\\nsentencing range (GSR) was calculated to be 33 to 41 months.\\n\\n In his sentencing memorandum, Méndez argued for a\\n\\nsentence at the low end of the GSR, noting that Rivera had admitted\\n\\nownership of the gun, ammunition, and the car, that he had long\\n\\nsuffered from an often-untreated psychological condition, and that\\n\\nhe was simply in the \\\"wrong place with the wrong person at the\\n\\nwrong time.\\\" The government, meanwhile, argued for a sentence at\\n\\nthe upper end of the GSR, highlighting that Méndez was the driver\\n\\nof the car that had been flagged as disappeared, that he committed\\n\\nthe instant offense while on probation for attempted murder and\\n\\n\\n\\n\\n - 3 -\\n\\frelated firearms offenses, and that his prior sentence of probation\\n\\nhad not deterred Méndez from criminal activity.\\n\\n The district court accepted the PSR's calculated GSR.\\n\\nThe judge stated that he had considered the 18 U.S.C. § 3553(a)\\n\\nfactors and the sentencing memorandum filed by Méndez. The court\\n\\nfocused particularly on the fact that the firearm was modified to\\n\\nbe fully automatic, explaining that \\\"[s]hort of bombs, missiles,\\n\\nand biochemical agents, we can conceive of few weapons that are\\n\\nmore dangerous than machine guns,\\\" and that such weapons \\\"are not\\n\\ntypically possessed by law-abiding citizens for lawful purposes.\\\"\\n\\nThe court also noted Méndez's age, education, unemployment,\\n\\nhistory of mental health treatment, and lack of substance abuse\\n\\nhistory. The court concluded that an above-guidelines sentence\\n\\nwas warranted and sentenced Méndez to 60 months' imprisonment.\\n\\nMéndez made no objection to his sentence at the time it was\\n\\nimposed, but subsequently filed this appeal.\\n\\n II. ANALYSIS\\n\\n Méndez argues on appeal that the district court\\n\\ncommitted procedural error by failing to consider critical factors\\n\\nin sentencing. He further argues that his variant sentence was\\n\\nsubstantively too harsh. Neither of these challenges is\\n\\nmeritorious.\\n\\n\\n\\n\\n - 4 -\\n\\f A.\\n\\n A generous reading of Méndez's brief suggests a\\n\\nprocedural challenge to his sentence based on the district court's\\n\\nalleged failure to consider certain salient factors, specifically:\\n\\n(1) his early acceptance of responsibility for his actions and (2)\\n\\nthe fact that Rivera, the passenger, admitted to owning the\\n\\nfirearm, ammunition, and the car. Méndez failed to lodge these\\n\\nobjections below. When a party has not preserved the procedural\\n\\nissues raised on appeal by objecting in the district court, we\\n\\nreview only for plain error. See United States v. González-\\n\\nBarbosa, 920 F.3d 125, 128 (1st Cir. 2019). This requires that\\n\\nMéndez show (1) that an error occurred, (2) which was clear or\\n\\nobvious, and which not only (3) affected his substantial rights,\\n\\nbut also (4) seriously impaired the fairness, integrity, or public\\n\\nreputation of the judicial proceedings. Id. Méndez has not made\\n\\nsuch a showing.\\n\\n Although the sentencing court must consider all the\\n\\n§ 3553(a) factors, see United States v. Martin, 520 F.3d 87, 92\\n\\n(1st Cir. 2008), it need not verbalize its evaluation of each\\n\\nfactor, United States v. Reyes-Rivera, 812 F.3d 79, 89 (1st Cir.\\n\\n2016). Moreover, \\\"the fact that the court stated that it had\\n\\nconsidered all the section 3553(a) factors is entitled to some\\n\\nweight.\\\" United States v. Dávila-González, 595 F.3d 42, 49 (1st\\n\\nCir. 2010). Here, contrary to Méndez's implication, the district\\n\\n\\n - 5 -\\n\\fcourt explicitly considered his early acceptance of responsibility\\n\\nand accordingly granted him a three-level reduction in his TOL on\\n\\nthat basis. Moreover, the district court stated that it had\\n\\nconsidered the § 3553(a) factors and had considered Méndez's\\n\\nsentencing memorandum. The sentencing memorandum detailed all of\\n\\nthe mitigating factors highlighted by Méndez, including Rivera's\\n\\nadmission of ownership of the firearm, ammunition, and the car.\\n\\n\\\"A criminal defendant is entitled to a weighing of the section\\n\\n3553(a) factors that are relevant to [his] case, not to a\\n\\nparticular result.\\\" Id. at 49 (alteration in original) (quoting\\n\\nUnited States v. Carrasco-De-Jesús, 589 F.3d 22, 29 (1st Cir.\\n\\n2009)). There being no clear or obvious error in the sentencing\\n\\ncourt's explication of the factors that it considered, Méndez's\\n\\nprocedural challenge fails.\\n\\n B.\\n\\n Méndez also argues that his sentence is substantively\\n\\nunreasonable because it is too harsh given the totality of the\\n\\ncircumstances surrounding his offense and conviction. He urges us\\n\\nto reconsider the weighing of various sentencing factors,\\n\\nincluding those mentioned above, his tumultuous family life during\\n\\nhis childhood, his remorse, and the fact that his crime was\\n\\nvictimless.\\n\\n Méndez did not preserve this challenge below. It remains\\n\\nunclear whether we review unpreserved claims of substantive\\n\\n\\n - 6 -\\n\\funreasonableness in sentencing for abuse of discretion or plain\\n\\nerror. See United States v. Reyes-Gomez, No. 17-1757, slip op. at\\n\\n5-6, n.3 (1st Cir. June 11, 2019) (noting that the Supreme Court\\n\\nrecently granted certiorari on the issue in Holguin-Hernandez v.\\n\\nUnited States, No. 18-7739 (June 3, 2019)). We find no occasion\\n\\nto address this question, for even under the more favorable abuse\\n\\nof discretion standard, see United States v. Rondón-García, 886\\n\\nF.3d 14, 26 (1st Cir. 2018), Méndez's challenge fails.\\n\\n Although the court imposed an upwardly variant sentence,\\n\\nunder abuse of discretion review the sentence \\\"will survive a\\n\\nchallenge to its substantive reasonableness as long as it rests on\\n\\na 'plausible sentencing rationale' and reflects a 'defensible\\n\\nresult.'\\\" United States v. Pérez, 819 F.3d 541, 547-48 (1st Cir.\\n\\n2016) (quoting Martin, 520 F.3d at 96). The instant sentence\\n\\nexceeded the top of the GSR by 19 months. \\\"[W]e have recognized\\n\\nthat the greater the extent of a variance, 'the more compelling\\n\\nthe sentencing court's justification must be.'\\\" United States v.\\n\\nde Jesús, 831 F.3d 39, 43 (1st Cir. 2016) (quoting United States\\n\\nv. Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014)).\\n\\n Here, the court adequately justified the sentence\\n\\nthrough plausible reasoning, relying on various § 3553(a) factors\\n\\nand Méndez's sentencing memorandum. The court specifically noted\\n\\nthe danger and destructive potential of automatic weapons. It\\n\\nalso relied on a need for heightened deterrence, given that Méndez\\n\\n\\n - 7 -\\n\\fcommitted the instant offense while on probation for other\\n\\noffenses. In these situations, we afford \\\"due deference to the\\n\\ndistrict court's decision that the § 3553(a) factors, on a whole,\\n\\njustify the extent of the variance.\\\" de Jesús, 831 F.3d at 42\\n\\n(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).\\n\\nTherefore, Méndez cannot show that the sentencing court abused its\\n\\ndiscretion and we must reject his challenge.\\n\\n III. CONCLUSION\\n\\n For the foregoing reasons, the sentence imposed by the\\n\\ndistrict court is hereby AFFIRMED.\\n\\n\\n\\n\\n - 8 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4407515/\", \"author_raw\": \"HOWARD, Chief Judge\"}]}"},"judge1":{"kind":"string","value":"HOWARD"},"judge2":{"kind":"string","value":"KAYATTA"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4630262/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Mendez-Baez\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 18-1732\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n KEVIN JONIEL MÉNDEZ-BÁEZ,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Francisco A. Besosa, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Kayatta and Barron, Circuit Judges.\n\n\n Yassmin Gonzalez-Velez and Gonzalez Velez Law Offices, PSC on\nbrief for appellant.\n Julia M. Meconiates, Assistant United States Attorney, Rosa\nEmilia Rodríguez-Vélez, United States Attorney, and Mariana E.\nBauzá-Almonte, Assistant United States Attorney, Chief, Appellate\nDivision, on brief for appellee.\n\n\n\n June 17, 2019\n\f HOWARD, Chief Judge. Appellant Kevin Joniel Méndez-Báez\n\nappeals his incarcerative sentence of 60 months, 19 months above\n\nthe upper end of the advisory guidelines sentencing range. He\n\nargues that the district court erred procedurally in not\n\nconsidering all of the 18 U.S.C. § 3553(a) factors and\n\nsubstantively in imposing too harsh a sentence. After careful\n\nreview, we affirm.\n\n I. BACKGROUND\n\n On August 24, 2017, Puerto Rico police pulled over a car\n\nafter observing its apparently illegal window tint. The driver,\n\nMéndez, produced a learner's driving permit and told an officer\n\nthat he did not have the car's registration information. While\n\ninspecting the vehicle's registration window decal, an officer\n\nobserved an extended ammunition magazine attached to a firearm on\n\nthe floor of the passenger side of the car. The police ordered\n\nMéndez and his passenger, Jorge Roberto Rivera-Báez, out of the\n\nvehicle. Neither Méndez -- who had been serving a term of\n\nprobation for a prior felony conviction -- nor Rivera had a\n\nfirearms permit. The officers placed the two men under arrest and\n\nsearched the vehicle, discovering that the firearm was a .40\n\ncaliber Model 23 Glock pistol with an extended 29-round magazine\n\nattached, loaded with 22 rounds of ammunition. The police also\n\nfound two fully loaded 13-round magazines. The pistol had a chip\n\nthat modified it to fire as a fully automatic weapon. After\n\n\n - 2 -\n\frunning the license plates through their database, the officers\n\nlearned that the car had been flagged as \"disappeared\" by a\n\nfinancial institution. At the station, Rivera -- the passenger -\n\n- stated that the pistol, the magazines, and the car belonged to\n\nhim.\n\n A grand jury charged Méndez with being a felon in\n\npossession of a firearm and ammunition in violation of 18 U.S.C.\n\n§ 922(g). He pled guilty. The pre-sentence report (PSR) prepared\n\nby the probation office determined that Méndez's total offense\n\nlevel (TOL) was 19 and his criminal history category (CHC) was II,\n\nbecause of his previous convictions for attempted murder and\n\nrelated firearm offenses and because he committed the instant\n\noffense while serving a term of probation. Méndez's guidelines\n\nsentencing range (GSR) was calculated to be 33 to 41 months.\n\n In his sentencing memorandum, Méndez argued for a\n\nsentence at the low end of the GSR, noting that Rivera had admitted\n\nownership of the gun, ammunition, and the car, that he had long\n\nsuffered from an often-untreated psychological condition, and that\n\nhe was simply in the \"wrong place with the wrong person at the\n\nwrong time.\" The government, meanwhile, argued for a sentence at\n\nthe upper end of the GSR, highlighting that Méndez was the driver\n\nof the car that had been flagged as disappeared, that he committed\n\nthe instant offense while on probation for attempted murder and\n\n\n\n\n - 3 -\n\frelated firearms offenses, and that his prior sentence of probation\n\nhad not deterred Méndez from criminal activity.\n\n The district court accepted the PSR's calculated GSR.\n\nThe judge stated that he had considered the 18 U.S.C. § 3553(a)\n\nfactors and the sentencing memorandum filed by Méndez. The court\n\nfocused particularly on the fact that the firearm was modified to\n\nbe fully automatic, explaining that \"[s]hort of bombs, missiles,\n\nand biochemical agents, we can conceive of few weapons that are\n\nmore dangerous than machine guns,\" and that such weapons \"are not\n\ntypically possessed by law-abiding citizens for lawful purposes.\"\n\nThe court also noted Méndez's age, education, unemployment,\n\nhistory of mental health treatment, and lack of substance abuse\n\nhistory. The court concluded that an above-guidelines sentence\n\nwas warranted and sentenced Méndez to 60 months' imprisonment.\n\nMéndez made no objection to his sentence at the time it was\n\nimposed, but subsequently filed this appeal.\n\n II. ANALYSIS\n\n Méndez argues on appeal that the district court\n\ncommitted procedural error by failing to consider critical factors\n\nin sentencing. He further argues that his variant sentence was\n\nsubstantively too harsh. Neither of these challenges is\n\nmeritorious.\n\n\n\n\n - 4 -\n\f A.\n\n A generous reading of Méndez's brief suggests a\n\nprocedural challenge to his sentence based on the district court's\n\nalleged failure to consider certain salient factors, specifically:\n\n(1) his early acceptance of responsibility for his actions and (2)\n\nthe fact that Rivera, the passenger, admitted to owning the\n\nfirearm, ammunition, and the car. Méndez failed to lodge these\n\nobjections below. When a party has not preserved the procedural\n\nissues raised on appeal by objecting in the district court, we\n\nreview only for plain error. See United States v. González-\n\nBarbosa, 920 F.3d 125, 128 (1st Cir. 2019). This requires that\n\nMéndez show (1) that an error occurred, (2) which was clear or\n\nobvious, and which not only (3) affected his substantial rights,\n\nbut also (4) seriously impaired the fairness, integrity, or public\n\nreputation of the judicial proceedings. Id. Méndez has not made\n\nsuch a showing.\n\n Although the sentencing court must consider all the\n\n§ 3553(a) factors, see United States v. Martin, 520 F.3d 87, 92\n\n(1st Cir. 2008), it need not verbalize its evaluation of each\n\nfactor, United States v. Reyes-Rivera, 812 F.3d 79, 89 (1st Cir.\n\n2016). Moreover, \"the fact that the court stated that it had\n\nconsidered all the section 3553(a) factors is entitled to some\n\nweight.\" United States v. Dávila-González, 595 F.3d 42, 49 (1st\n\nCir. 2010). Here, contrary to Méndez's implication, the district\n\n\n - 5 -\n\fcourt explicitly considered his early acceptance of responsibility\n\nand accordingly granted him a three-level reduction in his TOL on\n\nthat basis. Moreover, the district court stated that it had\n\nconsidered the § 3553(a) factors and had considered Méndez's\n\nsentencing memorandum. The sentencing memorandum detailed all of\n\nthe mitigating factors highlighted by Méndez, including Rivera's\n\nadmission of ownership of the firearm, ammunition, and the car.\n\n\"A criminal defendant is entitled to a weighing of the section\n\n3553(a) factors that are relevant to [his] case, not to a\n\nparticular result.\" Id. at 49 (alteration in original) (quoting\n\nUnited States v. Carrasco-De-Jesús, 589 F.3d 22, 29 (1st Cir.\n\n2009)). There being no clear or obvious error in the sentencing\n\ncourt's explication of the factors that it considered, Méndez's\n\nprocedural challenge fails.\n\n B.\n\n Méndez also argues that his sentence is substantively\n\nunreasonable because it is too harsh given the totality of the\n\ncircumstances surrounding his offense and conviction. He urges us\n\nto reconsider the weighing of various sentencing factors,\n\nincluding those mentioned above, his tumultuous family life during\n\nhis childhood, his remorse, and the fact that his crime was\n\nvictimless.\n\n Méndez did not preserve this challenge below. It remains\n\nunclear whether we review unpreserved claims of substantive\n\n\n - 6 -\n\funreasonableness in sentencing for abuse of discretion or plain\n\nerror. See United States v. Reyes-Gomez, No. 17-1757, slip op. at\n\n5-6, n.3 (1st Cir. June 11, 2019) (noting that the Supreme Court\n\nrecently granted certiorari on the issue in Holguin-Hernandez v.\n\nUnited States, No. 18-7739 (June 3, 2019)). We find no occasion\n\nto address this question, for even under the more favorable abuse\n\nof discretion standard, see United States v. Rondón-García, 886\n\nF.3d 14, 26 (1st Cir. 2018), Méndez's challenge fails.\n\n Although the court imposed an upwardly variant sentence,\n\nunder abuse of discretion review the sentence \"will survive a\n\nchallenge to its substantive reasonableness as long as it rests on\n\na 'plausible sentencing rationale' and reflects a 'defensible\n\nresult.'\" United States v. Pérez, 819 F.3d 541, 547-48 (1st Cir.\n\n2016) (quoting Martin, 520 F.3d at 96). The instant sentence\n\nexceeded the top of the GSR by 19 months. \"[W]e have recognized\n\nthat the greater the extent of a variance, 'the more compelling\n\nthe sentencing court's justification must be.'\" United States v.\n\nde Jesús, 831 F.3d 39, 43 (1st Cir. 2016) (quoting United States\n\nv. Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014)).\n\n Here, the court adequately justified the sentence\n\nthrough plausible reasoning, relying on various § 3553(a) factors\n\nand Méndez's sentencing memorandum. The court specifically noted\n\nthe danger and destructive potential of automatic weapons. It\n\nalso relied on a need for heightened deterrence, given that Méndez\n\n\n - 7 -\n\fcommitted the instant offense while on probation for other\n\noffenses. In these situations, we afford \"due deference to the\n\ndistrict court's decision that the § 3553(a) factors, on a whole,\n\njustify the extent of the variance.\" de Jesús, 831 F.3d at 42\n\n(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).\n\nTherefore, Méndez cannot show that the sentencing court abused its\n\ndiscretion and we must reject his challenge.\n\n III. CONCLUSION\n\n For the foregoing reasons, the sentence imposed by the\n\ndistrict court is hereby AFFIRMED.\n\n\n\n\n - 8 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Mendez-Baez\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\nNo. 18-1732\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n KEVIN JONIEL MÉNDEZ-BÁEZ,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Francisco A. Besosa, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Kayatta and Barron, Circuit Judges.\\n\\n\\n Yassmin Gonzalez-Velez and Gonzalez Velez Law Offices, PSC on\\nbrief for appellant.\\n Julia M. Meconiates, Assistant United States Attorney, Rosa\\nEmilia Rodríguez-Vélez, United States Attorney, and Mariana E.\\nBauzá-Almonte, Assistant United States Attorney, Chief, Appellate\\nDivision, on brief for appellee.\\n\\n\\n\\n June 17, 2019\\n\\f HOWARD, Chief Judge. Appellant Kevin Joniel Méndez-Báez\\n\\nappeals his incarcerative sentence of 60 months, 19 months above\\n\\nthe upper end of the advisory guidelines sentencing range. He\\n\\nargues that the district court erred procedurally in not\\n\\nconsidering all of the 18 U.S.C. § 3553(a) factors and\\n\\nsubstantively in imposing too harsh a sentence. After careful\\n\\nreview, we affirm.\\n\\n I. BACKGROUND\\n\\n On August 24, 2017, Puerto Rico police pulled over a car\\n\\nafter observing its apparently illegal window tint. The driver,\\n\\nMéndez, produced a learner's driving permit and told an officer\\n\\nthat he did not have the car's registration information. While\\n\\ninspecting the vehicle's registration window decal, an officer\\n\\nobserved an extended ammunition magazine attached to a firearm on\\n\\nthe floor of the passenger side of the car. The police ordered\\n\\nMéndez and his passenger, Jorge Roberto Rivera-Báez, out of the\\n\\nvehicle. Neither Méndez -- who had been serving a term of\\n\\nprobation for a prior felony conviction -- nor Rivera had a\\n\\nfirearms permit. The officers placed the two men under arrest and\\n\\nsearched the vehicle, discovering that the firearm was a .40\\n\\ncaliber Model 23 Glock pistol with an extended 29-round magazine\\n\\nattached, loaded with 22 rounds of ammunition. The police also\\n\\nfound two fully loaded 13-round magazines. The pistol had a chip\\n\\nthat modified it to fire as a fully automatic weapon. After\\n\\n\\n - 2 -\\n\\frunning the license plates through their database, the officers\\n\\nlearned that the car had been flagged as \\\"disappeared\\\" by a\\n\\nfinancial institution. At the station, Rivera -- the passenger -\\n\\n- stated that the pistol, the magazines, and the car belonged to\\n\\nhim.\\n\\n A grand jury charged Méndez with being a felon in\\n\\npossession of a firearm and ammunition in violation of 18 U.S.C.\\n\\n§ 922(g). He pled guilty. The pre-sentence report (PSR) prepared\\n\\nby the probation office determined that Méndez's total offense\\n\\nlevel (TOL) was 19 and his criminal history category (CHC) was II,\\n\\nbecause of his previous convictions for attempted murder and\\n\\nrelated firearm offenses and because he committed the instant\\n\\noffense while serving a term of probation. Méndez's guidelines\\n\\nsentencing range (GSR) was calculated to be 33 to 41 months.\\n\\n In his sentencing memorandum, Méndez argued for a\\n\\nsentence at the low end of the GSR, noting that Rivera had admitted\\n\\nownership of the gun, ammunition, and the car, that he had long\\n\\nsuffered from an often-untreated psychological condition, and that\\n\\nhe was simply in the \\\"wrong place with the wrong person at the\\n\\nwrong time.\\\" The government, meanwhile, argued for a sentence at\\n\\nthe upper end of the GSR, highlighting that Méndez was the driver\\n\\nof the car that had been flagged as disappeared, that he committed\\n\\nthe instant offense while on probation for attempted murder and\\n\\n\\n\\n\\n - 3 -\\n\\frelated firearms offenses, and that his prior sentence of probation\\n\\nhad not deterred Méndez from criminal activity.\\n\\n The district court accepted the PSR's calculated GSR.\\n\\nThe judge stated that he had considered the 18 U.S.C. § 3553(a)\\n\\nfactors and the sentencing memorandum filed by Méndez. The court\\n\\nfocused particularly on the fact that the firearm was modified to\\n\\nbe fully automatic, explaining that \\\"[s]hort of bombs, missiles,\\n\\nand biochemical agents, we can conceive of few weapons that are\\n\\nmore dangerous than machine guns,\\\" and that such weapons \\\"are not\\n\\ntypically possessed by law-abiding citizens for lawful purposes.\\\"\\n\\nThe court also noted Méndez's age, education, unemployment,\\n\\nhistory of mental health treatment, and lack of substance abuse\\n\\nhistory. The court concluded that an above-guidelines sentence\\n\\nwas warranted and sentenced Méndez to 60 months' imprisonment.\\n\\nMéndez made no objection to his sentence at the time it was\\n\\nimposed, but subsequently filed this appeal.\\n\\n II. ANALYSIS\\n\\n Méndez argues on appeal that the district court\\n\\ncommitted procedural error by failing to consider critical factors\\n\\nin sentencing. He further argues that his variant sentence was\\n\\nsubstantively too harsh. Neither of these challenges is\\n\\nmeritorious.\\n\\n\\n\\n\\n - 4 -\\n\\f A.\\n\\n A generous reading of Méndez's brief suggests a\\n\\nprocedural challenge to his sentence based on the district court's\\n\\nalleged failure to consider certain salient factors, specifically:\\n\\n(1) his early acceptance of responsibility for his actions and (2)\\n\\nthe fact that Rivera, the passenger, admitted to owning the\\n\\nfirearm, ammunition, and the car. Méndez failed to lodge these\\n\\nobjections below. When a party has not preserved the procedural\\n\\nissues raised on appeal by objecting in the district court, we\\n\\nreview only for plain error. See United States v. González-\\n\\nBarbosa, 920 F.3d 125, 128 (1st Cir. 2019). This requires that\\n\\nMéndez show (1) that an error occurred, (2) which was clear or\\n\\nobvious, and which not only (3) affected his substantial rights,\\n\\nbut also (4) seriously impaired the fairness, integrity, or public\\n\\nreputation of the judicial proceedings. Id. Méndez has not made\\n\\nsuch a showing.\\n\\n Although the sentencing court must consider all the\\n\\n§ 3553(a) factors, see United States v. Martin, 520 F.3d 87, 92\\n\\n(1st Cir. 2008), it need not verbalize its evaluation of each\\n\\nfactor, United States v. Reyes-Rivera, 812 F.3d 79, 89 (1st Cir.\\n\\n2016). Moreover, \\\"the fact that the court stated that it had\\n\\nconsidered all the section 3553(a) factors is entitled to some\\n\\nweight.\\\" United States v. Dávila-González, 595 F.3d 42, 49 (1st\\n\\nCir. 2010). Here, contrary to Méndez's implication, the district\\n\\n\\n - 5 -\\n\\fcourt explicitly considered his early acceptance of responsibility\\n\\nand accordingly granted him a three-level reduction in his TOL on\\n\\nthat basis. Moreover, the district court stated that it had\\n\\nconsidered the § 3553(a) factors and had considered Méndez's\\n\\nsentencing memorandum. The sentencing memorandum detailed all of\\n\\nthe mitigating factors highlighted by Méndez, including Rivera's\\n\\nadmission of ownership of the firearm, ammunition, and the car.\\n\\n\\\"A criminal defendant is entitled to a weighing of the section\\n\\n3553(a) factors that are relevant to [his] case, not to a\\n\\nparticular result.\\\" Id. at 49 (alteration in original) (quoting\\n\\nUnited States v. Carrasco-De-Jesús, 589 F.3d 22, 29 (1st Cir.\\n\\n2009)). There being no clear or obvious error in the sentencing\\n\\ncourt's explication of the factors that it considered, Méndez's\\n\\nprocedural challenge fails.\\n\\n B.\\n\\n Méndez also argues that his sentence is substantively\\n\\nunreasonable because it is too harsh given the totality of the\\n\\ncircumstances surrounding his offense and conviction. He urges us\\n\\nto reconsider the weighing of various sentencing factors,\\n\\nincluding those mentioned above, his tumultuous family life during\\n\\nhis childhood, his remorse, and the fact that his crime was\\n\\nvictimless.\\n\\n Méndez did not preserve this challenge below. It remains\\n\\nunclear whether we review unpreserved claims of substantive\\n\\n\\n - 6 -\\n\\funreasonableness in sentencing for abuse of discretion or plain\\n\\nerror. See United States v. Reyes-Gomez, No. 17-1757, slip op. at\\n\\n5-6, n.3 (1st Cir. June 11, 2019) (noting that the Supreme Court\\n\\nrecently granted certiorari on the issue in Holguin-Hernandez v.\\n\\nUnited States, No. 18-7739 (June 3, 2019)). We find no occasion\\n\\nto address this question, for even under the more favorable abuse\\n\\nof discretion standard, see United States v. Rondón-García, 886\\n\\nF.3d 14, 26 (1st Cir. 2018), Méndez's challenge fails.\\n\\n Although the court imposed an upwardly variant sentence,\\n\\nunder abuse of discretion review the sentence \\\"will survive a\\n\\nchallenge to its substantive reasonableness as long as it rests on\\n\\na 'plausible sentencing rationale' and reflects a 'defensible\\n\\nresult.'\\\" United States v. Pérez, 819 F.3d 541, 547-48 (1st Cir.\\n\\n2016) (quoting Martin, 520 F.3d at 96). The instant sentence\\n\\nexceeded the top of the GSR by 19 months. \\\"[W]e have recognized\\n\\nthat the greater the extent of a variance, 'the more compelling\\n\\nthe sentencing court's justification must be.'\\\" United States v.\\n\\nde Jesús, 831 F.3d 39, 43 (1st Cir. 2016) (quoting United States\\n\\nv. Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014)).\\n\\n Here, the court adequately justified the sentence\\n\\nthrough plausible reasoning, relying on various § 3553(a) factors\\n\\nand Méndez's sentencing memorandum. The court specifically noted\\n\\nthe danger and destructive potential of automatic weapons. It\\n\\nalso relied on a need for heightened deterrence, given that Méndez\\n\\n\\n - 7 -\\n\\fcommitted the instant offense while on probation for other\\n\\noffenses. In these situations, we afford \\\"due deference to the\\n\\ndistrict court's decision that the § 3553(a) factors, on a whole,\\n\\njustify the extent of the variance.\\\" de Jesús, 831 F.3d at 42\\n\\n(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).\\n\\nTherefore, Méndez cannot show that the sentencing court abused its\\n\\ndiscretion and we must reject his challenge.\\n\\n III. CONCLUSION\\n\\n For the foregoing reasons, the sentence imposed by the\\n\\ndistrict court is hereby AFFIRMED.\\n\\n\\n\\n\\n - 8 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2376,"cells":{"id":{"kind":"number","value":4630263,"string":"4,630,263"},"name":{"kind":"string","value":"Karen Liliana RIVAS-DURÁN, Et Al., Petitioners, v. William P. BARR, United States Attorney General, Respondent."},"name_abbreviation":{"kind":"string","value":"Rivas-Duran v. Barr"},"decision_date":{"kind":"string","value":"2019-06-17"},"docket_number":{"kind":"string","value":"17-1782P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Howard, Torruella, Kayatta\", \"parties\": \"\", \"opinions\": [{\"author\": \"TORRUELLA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-1782\\n\\n KAREN LILIANA RIVAS-DURÁN, ET AL.,\\n\\n Petitioners,\\n\\n v.\\n\\n WILLIAM P. BARR,\\n UNITED STATES ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n PETITION FOR REVIEW OF AN ORDER OF\\n THE BOARD OF IMMIGRATION APPEALS\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Torruella and Kayatta, Circuit Judges.\\n\\n\\n\\n Ondine Galvez Sniffin and Law Office of Ondine G. Sniffin, on\\nbrief for petitioners.\\n Jason Wisecup, Trial Attorney, Office of Immigration\\nLitigation, Civil Division, U.S. Department of Justice, Chad A.\\nReadler, Acting Assistant Attorney General, and Bernard A. Joseph,\\nSenior Litigation Counsel, Office of Immigration Litigation, on\\nbrief for respondent.\\n\\n\\n June 17, 2019\\n\\f TORRUELLA, Circuit Judge. Appellant Karen Liliana Rivas\\n\\nDurán (\\\"Rivas-Durán\\\") fled her native El Salvador and entered the\\n\\nUnited States without inspection with her twin sons. After being\\n\\ndetained, Rivas-Durán sought asylum, with her sons as derivative\\n\\nbeneficiaries, claiming that the children's father threatened her\\n\\non numerous occasions. The Immigration Judge (\\\"IJ\\\") granted\\n\\nRivas-Durán's application for asylum, but the Board of Immigration\\n\\nAppeals (\\\"BIA\\\") vacated the IJ's decision and ordered her removal,\\n\\nholding that she was ineligible for asylum under 8 U.S.C. § 1158\\n\\nor withholding of removal under 8 U.S.C. § 1231(b)(3). The BIA\\n\\nfound that Rivas-Durán failed to establish that she suffered\\n\\npersecution or that she was a member of her particular social\\n\\ngroup, \\\"women in El Salvador unable to leave a domestic\\n\\nrelationship.\\\" Rivas-Durán now appeals. After careful review,\\n\\nwe deny her petition.\\n\\n I. Background\\n\\n On July 1, 2014, the Department of Homeland Security\\n\\n(\\\"DHS\\\") charged Rivas-Durán and her sons with removability under\\n\\n8 U.S.C. § 1182(a)(6)(A)(i), as aliens present in the United States\\n\\nwho have not been admitted or paroled. Rivas-Durán sought asylum\\n\\nand withholding of removal, with her sons as derivative\\n\\nbeneficiaries of her asylum application.\\n\\n\\n\\n\\n -2-\\n\\f In support of her I-589 Application for Political Asylum\\n\\nand Withholding of Removal, Rivas-Durán declared that when she was\\n\\neighteen years-old she met Pedro Ernesto Burgos-Rivas (\\\"Pedro\\\"),\\n\\nand after dating him for six months she became pregnant with twins.\\n\\nAfter learning of her pregnancy, Pedro \\\"became aggressive\\\" and\\n\\nwould \\\"grab [Rivas-Durán] by her shoulders.\\\" \\\"At that point,\\\"\\n\\nRivas-Durán \\\"told him [that they] needed to end [their]\\n\\nrelationship[,] but he insisted on calling [her].\\\" During that\\n\\ntime, she lived with her father.\\n\\n While Pedro visited Rivas-Durán in the hospital after\\n\\nshe gave birth, she declared that she did not see him again until\\n\\neight months later when he suddenly showed up at her father's\\n\\nhouse. During that visit, Pedro became aggressive towards Rivas-\\n\\nDurán after she received a phone call, slapping her and pushing\\n\\nher down on the sofa. After that incident, Rivas-Durán did not\\n\\nsee Pedro for more than a year. She declared that Pedro, who was\\n\\na gang member, continued to harass and threaten her intermittently\\n\\nuntil she moved to the United States. On one occasion, when the\\n\\ntwins were three years-old, Pedro showed up at her father's house\\n\\nwith \\\"about 3 other gang members\\\" and warned her that if she\\n\\n\\\"didn't want to put [her] sons in danger,\\\" she should not let them\\n\\nwear t-shirts with the number eighteen on them as the number\\n\\nrepresented a rival gang. Rivas-Durán further declared that after\\n\\n\\n -3-\\n\\fshe was in the United States, Pedro's mother tracked her address,\\n\\nvisited her, and tried to see her grandsons.\\n\\n Following Rivas-Durán's merits hearing on January 6,\\n\\n2016, the IJ granted her asylum claim. The IJ deemed Rivas-Durán's\\n\\ntestimony credible and \\\"consistent with the application she\\n\\nfiled.\\\" The IJ concluded that Rivas-Durán had been the victim of\\n\\npast persecution. The IJ explained that despite the fact that\\n\\n\\\"there [was] only one incident of physical harm that the respondent\\n\\nsuffered at the hands of the father of her children,\\\" she suffered\\n\\npast persecution because, \\\"although sporadic,\\\" this \\\"was\\n\\naccompanied by threats and the knowledge that [Pedro] had the\\n\\nability to act on these threats.\\\"\\n\\n As to the one incident of physical harm, the IJ recounted\\n\\nthe time when Rivas-Durán received a phone call while Pedro was\\n\\nvisiting at her father's house after the twins were born. As the\\n\\nIJ described it, Pedro\\n\\n impulsively grabbed [Rivas-Durán] by the shoulders\\n and threatened that, if she were not his, she would\\n belong to no one. He slapped her across her face and\\n pushed her down on the sofa . . . . He threatened\\n that she was not to tell anyone that he had done so,\\n not even her family.\\n\\n Furthermore, the IJ identified two other instances of\\n\\nthreats: 1) \\\"[o]n one occasion,\\\" Pedro \\\"grabbed [Rivas-Durán] by\\n\\nthe shoulders and told her that she could not leave the\\n\\nrelationship\\\"; and 2) \\\"[s]everal years later,\\\" Pedro visited\\n\\n -4-\\n\\fRivas-Durán with gang-member friends and warned her that their\\n\\nkids could not wear either red shirts or the number eighteen as\\n\\nthese were symbols of a rival gang. Regarding this last incident,\\n\\nthe IJ found that Pedro \\\"specifically brought the other gang\\n\\nmembers so that [Rivas-Durán] would be intimidated and threatened\\n\\nby their presence.\\\" Finally, the IJ highlighted that after Rivas-\\n\\nDurán left El Salvador, \\\"Pedro's mother tracked down the twins in\\n\\nthe United States . . ., lied to get into the building in which\\n\\n[Rivas-Durán] and the twins lived with [Rivas-Durán's] mother and\\n\\nstep-father, and lied to get into the apartment.\\\" Based on these\\n\\nfacts, the IJ concluded that \\\"although the threats were few and\\n\\nthe physical harm a single incident, taken together in this\\n\\nscenario, Pedro's collective actions signal the potential for\\n\\nimminent and dire danger for the respondent and the children.\\\"\\n\\n Moreover, the IJ found that Rivas-Durán had shown\\n\\nmembership in a cognizable particular social group, specifically,\\n\\n\\\"women in El Salvador unable to leave a domestic relationship.\\\"\\n\\nThe IJ explained that, \\\"[e]ven after leaving El Salvador, her\\n\\ncontrolling partner continued to search for her.\\\" Moreover, the\\n\\nIJ highlighted that according to the BIA in Matter of A-R-C-G-, 26\\n\\nI & N Dec. 388 (BIA 2014), \\\"[w]hether a woman is married or\\n\\nunmarried, if she is unable to leave the relationship, it makes no\\n\\ndifference in the court's view.\\\"\\n\\n\\n -5-\\n\\f DHS appealed the IJ's decision to the BIA. On July 5,\\n\\n2017, the BIA vacated the IJ's decision granting asylum and ordered\\n\\nRivas-Durán and her children removed from the United States. It\\n\\nheld that the IJ erred in finding that Rivas-Durán had been\\n\\npersecuted, as the harm she suffered did not rise to the level of\\n\\npersecution required to grant asylum. The BIA further found that\\n\\nthe IJ clearly erred in finding that Rivas-Durán was a member of\\n\\nher particular social group, as the relationship with her ex-\\n\\npartner \\\"[did] not have the hallmarks of a domestic relationship\\n\\nrequired to establish membership in a particular social group based\\n\\non domestic violence.\\\"\\n\\n Rivas-Durán now appeals the BIA's decision. She claims\\n\\nthat the evidence on the record compels the IJ's finding that the\\n\\nharm she suffered constitutes persecution, and that the BIA failed\\n\\nto analyze the issue under the \\\"clearly erroneous\\\" standard.\\n\\nFurther, she argues that First Circuit and BIA precedent, as well\\n\\nas the record, compel the IJ's conclusion that she was a member of\\n\\nher particular social group. As Rivas-Durán's membership in a\\n\\nparticular social group is an indispensable element of her claims,\\n\\nour analysis begins and ends with it. See Aguilón-López v. Lynch,\\n\\n664 Fed. App'x. 14, 19 n.2 (1st Cir. 2016) (Petitioner's \\\"claim\\n\\nfails because, regardless of whether he established persecution,\\n\\n\\n\\n\\n -6-\\n\\fhe did not establish his membership in a particularized social\\n\\ngroup.\\\").\\n\\n II. Analysis\\n\\n We review the BIA's legal conclusions de novo, \\\"with\\n\\nappropriate deference to the agency's interpretation of the\\n\\nunderlying statute in accordance with administrative law\\n\\nprinciples.\\\" Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir. 2011)\\n\\n(quoting Stroni v. González, 454 F.3d 82, 87 (1st Cir. 2006)). By\\n\\ncontrast, we review factual findings under the deferential\\n\\n\\\"'substantial evidence standard,' meaning that we will not disturb\\n\\nsuch findings if they are 'supported by reasonable, substantial,\\n\\nand probative evidence on the record considered as a whole.'\\\"\\n\\nAguilar-Escoto v. Sessions, 874 F.3d 334, 336-37 (1st Cir. 2017)\\n\\n(quoting Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir 2015)).\\n\\n An applicant can obtain asylum by proving that he or she\\n\\nis a refugee pursuant to section 101(a)(42)(A) of the Immigration\\n\\nand Nationality Act (\\\"INA\\\"). 8 U.S.C. § 1101, 1158. The\\n\\napplicant must show that she is \\\"unable or unwilling\\\" to return to\\n\\nher country of origin \\\"because of persecution or a well-founded\\n\\nfear of persecution on account of race, religion, nationality,\\n\\nmembership in a particular social group, or political opinion.\\\"\\n\\n8 U.S.C. § 1101(a)(42)(A) (emphasis added).\\n\\n\\n\\n\\n -7-\\n\\f To determine that a petitioner is a member of a\\n\\nparticular social group, the petitioner must establish that the\\n\\nproposed group is \\\"(1) composed of members who share a common\\n\\nimmutable characteristic, (2) defined with particularity, and\\n\\n(3) socially distinct within the society in question.\\\" Vega-Ayala\\n\\nv. Lynch, 833 F.3d 34, 39 (1st Cir. 2016) (quoting Paiz-Morales v.\\n\\nLynch, 795 F.3d 238, 244 (1st Cir. 2015)). \\\"An immutable\\n\\ncharacteristic is one that 'members of the group either cannot\\n\\nchange, or should not be required to change because it is\\n\\nfundamental to their individual identities or consciences.'\\\" Id.\\n\\n(quoting Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012)).\\n\\n In order to meet the particularity requirement, \\\"a group\\n\\nmust be 'discrete and have definable boundaries-- it must not be\\n\\namorphous, overbroad, diffuse or subjective.'\\\" Paiz-Morales, 795\\n\\nF.3d at 244 (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227, 239\\n\\n(BIA 2014)). Finally, social distinction refers to \\\"whether those\\n\\nwith a common immutable characteristic are set apart, or distinct,\\n\\nfrom other persons within the society in some significant way.\\\"\\n\\nMatter of M-E-V-G-, 26 I. & N. Dec. at 238. In other words, a\\n\\nsocially distinct group is one that is recognized or perceived as\\n\\nsuch within the petitioner's society. Id. In 2014, the BIA held\\n\\nthat \\\"married women in Guatemala who are unable to leave their\\n\\nrelationship\\\" can constitute a cognizable particular social group\\n\\n\\n -8-\\n\\fthat forms the basis of a claim for asylum or withholding of\\n\\nremoval. Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014).\\n\\nRivas-Durán's application for asylum was based on a social group\\n\\nallegedly analogous to that of Matter of A-R-C-G-.1\\n\\n On appeal, Rivas-Durán challenges the BIA's\\n\\ndetermination that the IJ \\\"clearly erred in determining that [she]\\n\\nis a member of a particular social group [of] 'women in El Salvador\\n\\nunable to leave a domestic relationship.'\\\" She argues that the\\n\\nrecord compelled the IJ's finding that she fits within that\\n\\nproposed social group. She contends that she indeed was in a\\n\\ndomestic relationship, even though she did not live with Pedro.\\n\\nShe explains that her relationship with Pedro \\\"was a domestic\\n\\nrelationship in that they had two children together, they both had\\n\\nfeelings for one another, Pedro expressed concern for her as the\\n\\nmother of his children, [she] expressed jealousy at learning of\\n\\n\\n\\n1 After this appeal was filed, the Attorney General overruled\\nMatter of A-R-C-G-, finding that \\\"without performing the rigorous\\nanalysis required by the [BIA's] precedents,\\\" it recognized \\\"an\\nexpansive new category of particular social groups based on private\\nviolence.\\\" Matter of A-B, 27 I & N Dec. 316, 317, 319 (A.G. 2018).\\nNone of the parties request remand for application of Matter of A-\\nB in the first instance. In any case, we need not remand, as the\\nBIA found that Rivas-Durán did not prove that she was a member of\\nher proposed social group, even when Matter of A-R-C-G- was still\\nin effect, and the intervening case would not change that result.\\nHere, we need not reach the question of whether Rivas-Durán's\\nproposed social group was cognizable, which is where Matter of A-\\nR-C-G would come into play.\\n\\n\\n -9-\\n\\fhis other relationships and still imagines being with him as\\n\\nparents to their twins.\\\" Furthermore, she stresses that \\\"Pedro,\\n\\nverbally and physically, from 2010 until 2015, expressed his belief\\n\\nthat [she] belonged to him, despite her expression of having 'ended\\n\\nit' in 2010.\\\" Finally, she contends that, even if she never lived\\n\\nwith Pedro, \\\"further evidence of [her] inability to leave the\\n\\nrelationship are the unsuccessful attempts she made to end her\\n\\ncommunication with Pedro.\\\" Her arguments are unpersuasive.\\n\\n The BIA's holding that the IJ clearly erred is \\\"a legal\\n\\ndetermination that the evidence in the record was insufficient as\\n\\na matter of law to support the IJ's factual finding.\\\"\\n\\nRosales Justo v. Sessions, 895 F.3d 154, 161 (1st Cir. 2018).\\n\\nThus, \\\"because the BIA's holding that the IJ committed clear error\\n\\nis legal in nature, our review of that conclusion is de novo.\\\"\\n\\nId. at 162. We conduct de novo review \\\"of the justifications\\n\\nprovided by the BIA for concluding that the IJ's finding . . . was\\n\\nclearly erroneous.\\\" Id.\\n\\n We agree with the BIA that \\\"the record was insufficient\\n\\nas a matter of law to support the IJ's factual finding\\\" that Rivas-\\n\\nDurán fit within her proposed social group. Id. at 161. The BIA\\n\\nhighlighted that Rivas-Durán and Pedro never lived together, were\\n\\nnot married or engaged, and that although her ex-partner harassed\\n\\nher intermittently over various years, her relationship did not\\n\\n\\n -10-\\n\\f\\\"have the hallmarks of a domestic relationship required to\\n\\nestablish membership in a particular social group.\\\" The record\\n\\nsupports this determination.\\n\\n First, Cortez-Cardona v. Sessions, 848 F.3d 519 (1st\\n\\nCir. 2017), discredits Rivas-Durán's interpretation of what\\n\\nqualifies as a \\\"domestic\\\" relationship. In Cortez-Cardona, the\\n\\nasylum applicant had been in an abusive relationship with a gang\\n\\nmember. Id. at 520. She maintained that she belonged to two\\n\\nproposed social groups: \\\"Guatemalan women in domestic\\n\\nrelationships who are unable to leave\\\" and \\\"women who are viewed\\n\\nas property by virtue of their positions within a domestic\\n\\nrelationship.\\\" Id. at 523. The BIA emphasized the definition of\\n\\n\\\"domestic,\\\" which included \\\"devoted to home life or household\\n\\naffairs,\\\" and found that Cortez-Cardona was not in a domestic\\n\\nrelationship where she had dated her ex-partner for various months\\n\\nand after that refused his offer to \\\"be his woman.\\\" Id. at 523.\\n\\nWe upheld the BIA's stance. Id. at 523-24.\\n\\n Moreover, the BIA cited Vega-Ayala v. Lynch, 833 F.3d 34\\n\\n(1st Cir. 2016), which also supports denial of Rivas-Durán's\\n\\npetition. Vega-Ayala argued that she had been persecuted because\\n\\nof her membership in the particular social group of \\\"Salvadoran\\n\\nwomen in intimate relationships with partners who view them as\\n\\nproperty.\\\" Id. at 36. The BIA found, and this court sustained,\\n\\n\\n -11-\\n\\fthat Vega-Ayala failed to show that her proposed social group was\\n\\nimmutable, as she had not demonstrated an inability to leave her\\n\\npartner. Id. at 39. This court distinguished Vega-Ayala's case\\n\\nfrom Matter of A-R-C-G- in that she\\n\\n never lived with [her partner]. She saw him only\\n twice a week and continued to attend a university.\\n She chose to live in a home that he purchased in her\\n name while he was in jail. Their relationship spanned\\n only eighteen months, and he was incarcerated for\\n twelve of those months.\\\"\\n\\nId.\\n As in Vega-Ayala and Cortez-Cardona, and unlike the\\n\\napplicant in Matter of A-R-C-G-, it is undisputed that Rivas-Durán\\n\\nnever lived with Pedro, but rather chose to live with her father.\\n\\nPedro never forced her to leave her father's house to stay with\\n\\nhim. She was only in contact with Pedro when he sporadically\\n\\ntried to contact her or visit her and the twins in her father's\\n\\nhome. And Rivas-Durán has provided no authority for her\\n\\nproposition that she was in a domestic relationship merely because\\n\\nshe bore Pedro's children and they \\\"had feelings for one another.\\\"2\\n\\n\\n\\n2 Rivas-Durán contends that a woman's marital status should not\\nbe \\\"the determinative factor\\\" in deciding her domestic violence\\nasylum claim. As was the case in Cortez-Cardona, 848 F.3d at 523,\\nthe BIA here focused on whether the relationship was \\\"domestic,\\\"\\nnot on whether Rivas-Durán was married. Rivas-Durán does not\\npoint to, and we did not find, anything in the record or the BIA's\\ndecision that suggests that marriage was the determining factor in\\nthe BIA's decision. Thus, we need not linger on this undeveloped\\nargument.\\n\\n\\n -12-\\n\\fHence, hers was not a \\\"domestic\\\" relationship, as has been\\n\\ninterpreted by the BIA and this court.3\\n\\n III. Conclusion\\n\\n For the reasons discussed above, we deny Rivas-Durán's\\n\\npetition. See Cortez-Cardona, 848 F.3d at 523 (finding that the\\n\\nrecord supported the BIA's determination that petitioner \\\"had not\\n\\ndemonstrated factually that she fit within her own proposed social\\n\\ngroups\\\").\\n\\n\\n\\n\\n3 The same reasoning is dispositive of petitioner's claim for\\nwithholding of removal. As with asylum, an alien seeking\\nwithholding of removal must show that any persecution is on account\\nof one of the protected grounds, including membership in a \\\"legally\\ncognizable social group.\\\" Paiz-Morales, 795 F.3d at 245 (noting\\nthat withholding of removal \\\"requires a showing that an alien is\\nmore likely than not to face persecution on account of a protected\\nground,\\\" and that \\\"[a] petitioner who cannot clear the lower hurdle\\nfor asylum will necessarily fail to meet the higher bar for\\nwithholding of removal\\\").\\n\\n\\n -13-\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4407516/\", \"author_raw\": \"TORRUELLA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HOWARD"},"judge2":{"kind":"string","value":"TORRUELLA"},"judge3":{"kind":"string","value":"KAYATTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4630263/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Karen Liliana RIVAS-DURÁN, Et Al., Petitioners, v. William P. BARR, United States Attorney General, Respondent.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1782\n\n KAREN LILIANA RIVAS-DURÁN, ET AL.,\n\n Petitioners,\n\n v.\n\n WILLIAM P. BARR,\n UNITED STATES ATTORNEY GENERAL,\n\n Respondent.\n\n\n PETITION FOR REVIEW OF AN ORDER OF\n THE BOARD OF IMMIGRATION APPEALS\n\n\n Before\n\n Howard, Chief Judge,\n Torruella and Kayatta, Circuit Judges.\n\n\n\n Ondine Galvez Sniffin and Law Office of Ondine G. Sniffin, on\nbrief for petitioners.\n Jason Wisecup, Trial Attorney, Office of Immigration\nLitigation, Civil Division, U.S. Department of Justice, Chad A.\nReadler, Acting Assistant Attorney General, and Bernard A. Joseph,\nSenior Litigation Counsel, Office of Immigration Litigation, on\nbrief for respondent.\n\n\n June 17, 2019\n\f TORRUELLA, Circuit Judge. Appellant Karen Liliana Rivas\n\nDurán (\"Rivas-Durán\") fled her native El Salvador and entered the\n\nUnited States without inspection with her twin sons. After being\n\ndetained, Rivas-Durán sought asylum, with her sons as derivative\n\nbeneficiaries, claiming that the children's father threatened her\n\non numerous occasions. The Immigration Judge (\"IJ\") granted\n\nRivas-Durán's application for asylum, but the Board of Immigration\n\nAppeals (\"BIA\") vacated the IJ's decision and ordered her removal,\n\nholding that she was ineligible for asylum under 8 U.S.C. § 1158\n\nor withholding of removal under 8 U.S.C. § 1231(b)(3). The BIA\n\nfound that Rivas-Durán failed to establish that she suffered\n\npersecution or that she was a member of her particular social\n\ngroup, \"women in El Salvador unable to leave a domestic\n\nrelationship.\" Rivas-Durán now appeals. After careful review,\n\nwe deny her petition.\n\n I. Background\n\n On July 1, 2014, the Department of Homeland Security\n\n(\"DHS\") charged Rivas-Durán and her sons with removability under\n\n8 U.S.C. § 1182(a)(6)(A)(i), as aliens present in the United States\n\nwho have not been admitted or paroled. Rivas-Durán sought asylum\n\nand withholding of removal, with her sons as derivative\n\nbeneficiaries of her asylum application.\n\n\n\n\n -2-\n\f In support of her I-589 Application for Political Asylum\n\nand Withholding of Removal, Rivas-Durán declared that when she was\n\neighteen years-old she met Pedro Ernesto Burgos-Rivas (\"Pedro\"),\n\nand after dating him for six months she became pregnant with twins.\n\nAfter learning of her pregnancy, Pedro \"became aggressive\" and\n\nwould \"grab [Rivas-Durán] by her shoulders.\" \"At that point,\"\n\nRivas-Durán \"told him [that they] needed to end [their]\n\nrelationship[,] but he insisted on calling [her].\" During that\n\ntime, she lived with her father.\n\n While Pedro visited Rivas-Durán in the hospital after\n\nshe gave birth, she declared that she did not see him again until\n\neight months later when he suddenly showed up at her father's\n\nhouse. During that visit, Pedro became aggressive towards Rivas-\n\nDurán after she received a phone call, slapping her and pushing\n\nher down on the sofa. After that incident, Rivas-Durán did not\n\nsee Pedro for more than a year. She declared that Pedro, who was\n\na gang member, continued to harass and threaten her intermittently\n\nuntil she moved to the United States. On one occasion, when the\n\ntwins were three years-old, Pedro showed up at her father's house\n\nwith \"about 3 other gang members\" and warned her that if she\n\n\"didn't want to put [her] sons in danger,\" she should not let them\n\nwear t-shirts with the number eighteen on them as the number\n\nrepresented a rival gang. Rivas-Durán further declared that after\n\n\n -3-\n\fshe was in the United States, Pedro's mother tracked her address,\n\nvisited her, and tried to see her grandsons.\n\n Following Rivas-Durán's merits hearing on January 6,\n\n2016, the IJ granted her asylum claim. The IJ deemed Rivas-Durán's\n\ntestimony credible and \"consistent with the application she\n\nfiled.\" The IJ concluded that Rivas-Durán had been the victim of\n\npast persecution. The IJ explained that despite the fact that\n\n\"there [was] only one incident of physical harm that the respondent\n\nsuffered at the hands of the father of her children,\" she suffered\n\npast persecution because, \"although sporadic,\" this \"was\n\naccompanied by threats and the knowledge that [Pedro] had the\n\nability to act on these threats.\"\n\n As to the one incident of physical harm, the IJ recounted\n\nthe time when Rivas-Durán received a phone call while Pedro was\n\nvisiting at her father's house after the twins were born. As the\n\nIJ described it, Pedro\n\n impulsively grabbed [Rivas-Durán] by the shoulders\n and threatened that, if she were not his, she would\n belong to no one. He slapped her across her face and\n pushed her down on the sofa . . . . He threatened\n that she was not to tell anyone that he had done so,\n not even her family.\n\n Furthermore, the IJ identified two other instances of\n\nthreats: 1) \"[o]n one occasion,\" Pedro \"grabbed [Rivas-Durán] by\n\nthe shoulders and told her that she could not leave the\n\nrelationship\"; and 2) \"[s]everal years later,\" Pedro visited\n\n -4-\n\fRivas-Durán with gang-member friends and warned her that their\n\nkids could not wear either red shirts or the number eighteen as\n\nthese were symbols of a rival gang. Regarding this last incident,\n\nthe IJ found that Pedro \"specifically brought the other gang\n\nmembers so that [Rivas-Durán] would be intimidated and threatened\n\nby their presence.\" Finally, the IJ highlighted that after Rivas-\n\nDurán left El Salvador, \"Pedro's mother tracked down the twins in\n\nthe United States . . ., lied to get into the building in which\n\n[Rivas-Durán] and the twins lived with [Rivas-Durán's] mother and\n\nstep-father, and lied to get into the apartment.\" Based on these\n\nfacts, the IJ concluded that \"although the threats were few and\n\nthe physical harm a single incident, taken together in this\n\nscenario, Pedro's collective actions signal the potential for\n\nimminent and dire danger for the respondent and the children.\"\n\n Moreover, the IJ found that Rivas-Durán had shown\n\nmembership in a cognizable particular social group, specifically,\n\n\"women in El Salvador unable to leave a domestic relationship.\"\n\nThe IJ explained that, \"[e]ven after leaving El Salvador, her\n\ncontrolling partner continued to search for her.\" Moreover, the\n\nIJ highlighted that according to the BIA in Matter of A-R-C-G-, 26\n\nI & N Dec. 388 (BIA 2014), \"[w]hether a woman is married or\n\nunmarried, if she is unable to leave the relationship, it makes no\n\ndifference in the court's view.\"\n\n\n -5-\n\f DHS appealed the IJ's decision to the BIA. On July 5,\n\n2017, the BIA vacated the IJ's decision granting asylum and ordered\n\nRivas-Durán and her children removed from the United States. It\n\nheld that the IJ erred in finding that Rivas-Durán had been\n\npersecuted, as the harm she suffered did not rise to the level of\n\npersecution required to grant asylum. The BIA further found that\n\nthe IJ clearly erred in finding that Rivas-Durán was a member of\n\nher particular social group, as the relationship with her ex-\n\npartner \"[did] not have the hallmarks of a domestic relationship\n\nrequired to establish membership in a particular social group based\n\non domestic violence.\"\n\n Rivas-Durán now appeals the BIA's decision. She claims\n\nthat the evidence on the record compels the IJ's finding that the\n\nharm she suffered constitutes persecution, and that the BIA failed\n\nto analyze the issue under the \"clearly erroneous\" standard.\n\nFurther, she argues that First Circuit and BIA precedent, as well\n\nas the record, compel the IJ's conclusion that she was a member of\n\nher particular social group. As Rivas-Durán's membership in a\n\nparticular social group is an indispensable element of her claims,\n\nour analysis begins and ends with it. See Aguilón-López v. Lynch,\n\n664 Fed. App'x. 14, 19 n.2 (1st Cir. 2016) (Petitioner's \"claim\n\nfails because, regardless of whether he established persecution,\n\n\n\n\n -6-\n\fhe did not establish his membership in a particularized social\n\ngroup.\").\n\n II. Analysis\n\n We review the BIA's legal conclusions de novo, \"with\n\nappropriate deference to the agency's interpretation of the\n\nunderlying statute in accordance with administrative law\n\nprinciples.\" Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir. 2011)\n\n(quoting Stroni v. González, 454 F.3d 82, 87 (1st Cir. 2006)). By\n\ncontrast, we review factual findings under the deferential\n\n\"'substantial evidence standard,' meaning that we will not disturb\n\nsuch findings if they are 'supported by reasonable, substantial,\n\nand probative evidence on the record considered as a whole.'\"\n\nAguilar-Escoto v. Sessions, 874 F.3d 334, 336-37 (1st Cir. 2017)\n\n(quoting Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir 2015)).\n\n An applicant can obtain asylum by proving that he or she\n\nis a refugee pursuant to section 101(a)(42)(A) of the Immigration\n\nand Nationality Act (\"INA\"). 8 U.S.C. § 1101, 1158. The\n\napplicant must show that she is \"unable or unwilling\" to return to\n\nher country of origin \"because of persecution or a well-founded\n\nfear of persecution on account of race, religion, nationality,\n\nmembership in a particular social group, or political opinion.\"\n\n8 U.S.C. § 1101(a)(42)(A) (emphasis added).\n\n\n\n\n -7-\n\f To determine that a petitioner is a member of a\n\nparticular social group, the petitioner must establish that the\n\nproposed group is \"(1) composed of members who share a common\n\nimmutable characteristic, (2) defined with particularity, and\n\n(3) socially distinct within the society in question.\" Vega-Ayala\n\nv. Lynch, 833 F.3d 34, 39 (1st Cir. 2016) (quoting Paiz-Morales v.\n\nLynch, 795 F.3d 238, 244 (1st Cir. 2015)). \"An immutable\n\ncharacteristic is one that 'members of the group either cannot\n\nchange, or should not be required to change because it is\n\nfundamental to their individual identities or consciences.'\" Id.\n\n(quoting Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012)).\n\n In order to meet the particularity requirement, \"a group\n\nmust be 'discrete and have definable boundaries-- it must not be\n\namorphous, overbroad, diffuse or subjective.'\" Paiz-Morales, 795\n\nF.3d at 244 (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227, 239\n\n(BIA 2014)). Finally, social distinction refers to \"whether those\n\nwith a common immutable characteristic are set apart, or distinct,\n\nfrom other persons within the society in some significant way.\"\n\nMatter of M-E-V-G-, 26 I. & N. Dec. at 238. In other words, a\n\nsocially distinct group is one that is recognized or perceived as\n\nsuch within the petitioner's society. Id. In 2014, the BIA held\n\nthat \"married women in Guatemala who are unable to leave their\n\nrelationship\" can constitute a cognizable particular social group\n\n\n -8-\n\fthat forms the basis of a claim for asylum or withholding of\n\nremoval. Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014).\n\nRivas-Durán's application for asylum was based on a social group\n\nallegedly analogous to that of Matter of A-R-C-G-.1\n\n On appeal, Rivas-Durán challenges the BIA's\n\ndetermination that the IJ \"clearly erred in determining that [she]\n\nis a member of a particular social group [of] 'women in El Salvador\n\nunable to leave a domestic relationship.'\" She argues that the\n\nrecord compelled the IJ's finding that she fits within that\n\nproposed social group. She contends that she indeed was in a\n\ndomestic relationship, even though she did not live with Pedro.\n\nShe explains that her relationship with Pedro \"was a domestic\n\nrelationship in that they had two children together, they both had\n\nfeelings for one another, Pedro expressed concern for her as the\n\nmother of his children, [she] expressed jealousy at learning of\n\n\n\n1 After this appeal was filed, the Attorney General overruled\nMatter of A-R-C-G-, finding that \"without performing the rigorous\nanalysis required by the [BIA's] precedents,\" it recognized \"an\nexpansive new category of particular social groups based on private\nviolence.\" Matter of A-B, 27 I & N Dec. 316, 317, 319 (A.G. 2018).\nNone of the parties request remand for application of Matter of A-\nB in the first instance. In any case, we need not remand, as the\nBIA found that Rivas-Durán did not prove that she was a member of\nher proposed social group, even when Matter of A-R-C-G- was still\nin effect, and the intervening case would not change that result.\nHere, we need not reach the question of whether Rivas-Durán's\nproposed social group was cognizable, which is where Matter of A-\nR-C-G would come into play.\n\n\n -9-\n\fhis other relationships and still imagines being with him as\n\nparents to their twins.\" Furthermore, she stresses that \"Pedro,\n\nverbally and physically, from 2010 until 2015, expressed his belief\n\nthat [she] belonged to him, despite her expression of having 'ended\n\nit' in 2010.\" Finally, she contends that, even if she never lived\n\nwith Pedro, \"further evidence of [her] inability to leave the\n\nrelationship are the unsuccessful attempts she made to end her\n\ncommunication with Pedro.\" Her arguments are unpersuasive.\n\n The BIA's holding that the IJ clearly erred is \"a legal\n\ndetermination that the evidence in the record was insufficient as\n\na matter of law to support the IJ's factual finding.\"\n\nRosales Justo v. Sessions, 895 F.3d 154, 161 (1st Cir. 2018).\n\nThus, \"because the BIA's holding that the IJ committed clear error\n\nis legal in nature, our review of that conclusion is de novo.\"\n\nId. at 162. We conduct de novo review \"of the justifications\n\nprovided by the BIA for concluding that the IJ's finding . . . was\n\nclearly erroneous.\" Id.\n\n We agree with the BIA that \"the record was insufficient\n\nas a matter of law to support the IJ's factual finding\" that Rivas-\n\nDurán fit within her proposed social group. Id. at 161. The BIA\n\nhighlighted that Rivas-Durán and Pedro never lived together, were\n\nnot married or engaged, and that although her ex-partner harassed\n\nher intermittently over various years, her relationship did not\n\n\n -10-\n\f\"have the hallmarks of a domestic relationship required to\n\nestablish membership in a particular social group.\" The record\n\nsupports this determination.\n\n First, Cortez-Cardona v. Sessions, 848 F.3d 519 (1st\n\nCir. 2017), discredits Rivas-Durán's interpretation of what\n\nqualifies as a \"domestic\" relationship. In Cortez-Cardona, the\n\nasylum applicant had been in an abusive relationship with a gang\n\nmember. Id. at 520. She maintained that she belonged to two\n\nproposed social groups: \"Guatemalan women in domestic\n\nrelationships who are unable to leave\" and \"women who are viewed\n\nas property by virtue of their positions within a domestic\n\nrelationship.\" Id. at 523. The BIA emphasized the definition of\n\n\"domestic,\" which included \"devoted to home life or household\n\naffairs,\" and found that Cortez-Cardona was not in a domestic\n\nrelationship where she had dated her ex-partner for various months\n\nand after that refused his offer to \"be his woman.\" Id. at 523.\n\nWe upheld the BIA's stance. Id. at 523-24.\n\n Moreover, the BIA cited Vega-Ayala v. Lynch, 833 F.3d 34\n\n(1st Cir. 2016), which also supports denial of Rivas-Durán's\n\npetition. Vega-Ayala argued that she had been persecuted because\n\nof her membership in the particular social group of \"Salvadoran\n\nwomen in intimate relationships with partners who view them as\n\nproperty.\" Id. at 36. The BIA found, and this court sustained,\n\n\n -11-\n\fthat Vega-Ayala failed to show that her proposed social group was\n\nimmutable, as she had not demonstrated an inability to leave her\n\npartner. Id. at 39. This court distinguished Vega-Ayala's case\n\nfrom Matter of A-R-C-G- in that she\n\n never lived with [her partner]. She saw him only\n twice a week and continued to attend a university.\n She chose to live in a home that he purchased in her\n name while he was in jail. Their relationship spanned\n only eighteen months, and he was incarcerated for\n twelve of those months.\"\n\nId.\n As in Vega-Ayala and Cortez-Cardona, and unlike the\n\napplicant in Matter of A-R-C-G-, it is undisputed that Rivas-Durán\n\nnever lived with Pedro, but rather chose to live with her father.\n\nPedro never forced her to leave her father's house to stay with\n\nhim. She was only in contact with Pedro when he sporadically\n\ntried to contact her or visit her and the twins in her father's\n\nhome. And Rivas-Durán has provided no authority for her\n\nproposition that she was in a domestic relationship merely because\n\nshe bore Pedro's children and they \"had feelings for one another.\"2\n\n\n\n2 Rivas-Durán contends that a woman's marital status should not\nbe \"the determinative factor\" in deciding her domestic violence\nasylum claim. As was the case in Cortez-Cardona, 848 F.3d at 523,\nthe BIA here focused on whether the relationship was \"domestic,\"\nnot on whether Rivas-Durán was married. Rivas-Durán does not\npoint to, and we did not find, anything in the record or the BIA's\ndecision that suggests that marriage was the determining factor in\nthe BIA's decision. Thus, we need not linger on this undeveloped\nargument.\n\n\n -12-\n\fHence, hers was not a \"domestic\" relationship, as has been\n\ninterpreted by the BIA and this court.3\n\n III. Conclusion\n\n For the reasons discussed above, we deny Rivas-Durán's\n\npetition. See Cortez-Cardona, 848 F.3d at 523 (finding that the\n\nrecord supported the BIA's determination that petitioner \"had not\n\ndemonstrated factually that she fit within her own proposed social\n\ngroups\").\n\n\n\n\n3 The same reasoning is dispositive of petitioner's claim for\nwithholding of removal. As with asylum, an alien seeking\nwithholding of removal must show that any persecution is on account\nof one of the protected grounds, including membership in a \"legally\ncognizable social group.\" Paiz-Morales, 795 F.3d at 245 (noting\nthat withholding of removal \"requires a showing that an alien is\nmore likely than not to face persecution on account of a protected\nground,\" and that \"[a] petitioner who cannot clear the lower hurdle\nfor asylum will necessarily fail to meet the higher bar for\nwithholding of removal\").\n\n\n -13-\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Karen Liliana RIVAS-DURÁN, Et Al., Petitioners, v. William P. BARR, United States Attorney General, Respondent.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-1782\\n\\n KAREN LILIANA RIVAS-DURÁN, ET AL.,\\n\\n Petitioners,\\n\\n v.\\n\\n WILLIAM P. BARR,\\n UNITED STATES ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n PETITION FOR REVIEW OF AN ORDER OF\\n THE BOARD OF IMMIGRATION APPEALS\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Torruella and Kayatta, Circuit Judges.\\n\\n\\n\\n Ondine Galvez Sniffin and Law Office of Ondine G. Sniffin, on\\nbrief for petitioners.\\n Jason Wisecup, Trial Attorney, Office of Immigration\\nLitigation, Civil Division, U.S. Department of Justice, Chad A.\\nReadler, Acting Assistant Attorney General, and Bernard A. Joseph,\\nSenior Litigation Counsel, Office of Immigration Litigation, on\\nbrief for respondent.\\n\\n\\n June 17, 2019\\n\\f TORRUELLA, Circuit Judge. Appellant Karen Liliana Rivas\\n\\nDurán (\\\"Rivas-Durán\\\") fled her native El Salvador and entered the\\n\\nUnited States without inspection with her twin sons. After being\\n\\ndetained, Rivas-Durán sought asylum, with her sons as derivative\\n\\nbeneficiaries, claiming that the children's father threatened her\\n\\non numerous occasions. The Immigration Judge (\\\"IJ\\\") granted\\n\\nRivas-Durán's application for asylum, but the Board of Immigration\\n\\nAppeals (\\\"BIA\\\") vacated the IJ's decision and ordered her removal,\\n\\nholding that she was ineligible for asylum under 8 U.S.C. § 1158\\n\\nor withholding of removal under 8 U.S.C. § 1231(b)(3). The BIA\\n\\nfound that Rivas-Durán failed to establish that she suffered\\n\\npersecution or that she was a member of her particular social\\n\\ngroup, \\\"women in El Salvador unable to leave a domestic\\n\\nrelationship.\\\" Rivas-Durán now appeals. After careful review,\\n\\nwe deny her petition.\\n\\n I. Background\\n\\n On July 1, 2014, the Department of Homeland Security\\n\\n(\\\"DHS\\\") charged Rivas-Durán and her sons with removability under\\n\\n8 U.S.C. § 1182(a)(6)(A)(i), as aliens present in the United States\\n\\nwho have not been admitted or paroled. Rivas-Durán sought asylum\\n\\nand withholding of removal, with her sons as derivative\\n\\nbeneficiaries of her asylum application.\\n\\n\\n\\n\\n -2-\\n\\f In support of her I-589 Application for Political Asylum\\n\\nand Withholding of Removal, Rivas-Durán declared that when she was\\n\\neighteen years-old she met Pedro Ernesto Burgos-Rivas (\\\"Pedro\\\"),\\n\\nand after dating him for six months she became pregnant with twins.\\n\\nAfter learning of her pregnancy, Pedro \\\"became aggressive\\\" and\\n\\nwould \\\"grab [Rivas-Durán] by her shoulders.\\\" \\\"At that point,\\\"\\n\\nRivas-Durán \\\"told him [that they] needed to end [their]\\n\\nrelationship[,] but he insisted on calling [her].\\\" During that\\n\\ntime, she lived with her father.\\n\\n While Pedro visited Rivas-Durán in the hospital after\\n\\nshe gave birth, she declared that she did not see him again until\\n\\neight months later when he suddenly showed up at her father's\\n\\nhouse. During that visit, Pedro became aggressive towards Rivas-\\n\\nDurán after she received a phone call, slapping her and pushing\\n\\nher down on the sofa. After that incident, Rivas-Durán did not\\n\\nsee Pedro for more than a year. She declared that Pedro, who was\\n\\na gang member, continued to harass and threaten her intermittently\\n\\nuntil she moved to the United States. On one occasion, when the\\n\\ntwins were three years-old, Pedro showed up at her father's house\\n\\nwith \\\"about 3 other gang members\\\" and warned her that if she\\n\\n\\\"didn't want to put [her] sons in danger,\\\" she should not let them\\n\\nwear t-shirts with the number eighteen on them as the number\\n\\nrepresented a rival gang. Rivas-Durán further declared that after\\n\\n\\n -3-\\n\\fshe was in the United States, Pedro's mother tracked her address,\\n\\nvisited her, and tried to see her grandsons.\\n\\n Following Rivas-Durán's merits hearing on January 6,\\n\\n2016, the IJ granted her asylum claim. The IJ deemed Rivas-Durán's\\n\\ntestimony credible and \\\"consistent with the application she\\n\\nfiled.\\\" The IJ concluded that Rivas-Durán had been the victim of\\n\\npast persecution. The IJ explained that despite the fact that\\n\\n\\\"there [was] only one incident of physical harm that the respondent\\n\\nsuffered at the hands of the father of her children,\\\" she suffered\\n\\npast persecution because, \\\"although sporadic,\\\" this \\\"was\\n\\naccompanied by threats and the knowledge that [Pedro] had the\\n\\nability to act on these threats.\\\"\\n\\n As to the one incident of physical harm, the IJ recounted\\n\\nthe time when Rivas-Durán received a phone call while Pedro was\\n\\nvisiting at her father's house after the twins were born. As the\\n\\nIJ described it, Pedro\\n\\n impulsively grabbed [Rivas-Durán] by the shoulders\\n and threatened that, if she were not his, she would\\n belong to no one. He slapped her across her face and\\n pushed her down on the sofa . . . . He threatened\\n that she was not to tell anyone that he had done so,\\n not even her family.\\n\\n Furthermore, the IJ identified two other instances of\\n\\nthreats: 1) \\\"[o]n one occasion,\\\" Pedro \\\"grabbed [Rivas-Durán] by\\n\\nthe shoulders and told her that she could not leave the\\n\\nrelationship\\\"; and 2) \\\"[s]everal years later,\\\" Pedro visited\\n\\n -4-\\n\\fRivas-Durán with gang-member friends and warned her that their\\n\\nkids could not wear either red shirts or the number eighteen as\\n\\nthese were symbols of a rival gang. Regarding this last incident,\\n\\nthe IJ found that Pedro \\\"specifically brought the other gang\\n\\nmembers so that [Rivas-Durán] would be intimidated and threatened\\n\\nby their presence.\\\" Finally, the IJ highlighted that after Rivas-\\n\\nDurán left El Salvador, \\\"Pedro's mother tracked down the twins in\\n\\nthe United States . . ., lied to get into the building in which\\n\\n[Rivas-Durán] and the twins lived with [Rivas-Durán's] mother and\\n\\nstep-father, and lied to get into the apartment.\\\" Based on these\\n\\nfacts, the IJ concluded that \\\"although the threats were few and\\n\\nthe physical harm a single incident, taken together in this\\n\\nscenario, Pedro's collective actions signal the potential for\\n\\nimminent and dire danger for the respondent and the children.\\\"\\n\\n Moreover, the IJ found that Rivas-Durán had shown\\n\\nmembership in a cognizable particular social group, specifically,\\n\\n\\\"women in El Salvador unable to leave a domestic relationship.\\\"\\n\\nThe IJ explained that, \\\"[e]ven after leaving El Salvador, her\\n\\ncontrolling partner continued to search for her.\\\" Moreover, the\\n\\nIJ highlighted that according to the BIA in Matter of A-R-C-G-, 26\\n\\nI & N Dec. 388 (BIA 2014), \\\"[w]hether a woman is married or\\n\\nunmarried, if she is unable to leave the relationship, it makes no\\n\\ndifference in the court's view.\\\"\\n\\n\\n -5-\\n\\f DHS appealed the IJ's decision to the BIA. On July 5,\\n\\n2017, the BIA vacated the IJ's decision granting asylum and ordered\\n\\nRivas-Durán and her children removed from the United States. It\\n\\nheld that the IJ erred in finding that Rivas-Durán had been\\n\\npersecuted, as the harm she suffered did not rise to the level of\\n\\npersecution required to grant asylum. The BIA further found that\\n\\nthe IJ clearly erred in finding that Rivas-Durán was a member of\\n\\nher particular social group, as the relationship with her ex-\\n\\npartner \\\"[did] not have the hallmarks of a domestic relationship\\n\\nrequired to establish membership in a particular social group based\\n\\non domestic violence.\\\"\\n\\n Rivas-Durán now appeals the BIA's decision. She claims\\n\\nthat the evidence on the record compels the IJ's finding that the\\n\\nharm she suffered constitutes persecution, and that the BIA failed\\n\\nto analyze the issue under the \\\"clearly erroneous\\\" standard.\\n\\nFurther, she argues that First Circuit and BIA precedent, as well\\n\\nas the record, compel the IJ's conclusion that she was a member of\\n\\nher particular social group. As Rivas-Durán's membership in a\\n\\nparticular social group is an indispensable element of her claims,\\n\\nour analysis begins and ends with it. See Aguilón-López v. Lynch,\\n\\n664 Fed. App'x. 14, 19 n.2 (1st Cir. 2016) (Petitioner's \\\"claim\\n\\nfails because, regardless of whether he established persecution,\\n\\n\\n\\n\\n -6-\\n\\fhe did not establish his membership in a particularized social\\n\\ngroup.\\\").\\n\\n II. Analysis\\n\\n We review the BIA's legal conclusions de novo, \\\"with\\n\\nappropriate deference to the agency's interpretation of the\\n\\nunderlying statute in accordance with administrative law\\n\\nprinciples.\\\" Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir. 2011)\\n\\n(quoting Stroni v. González, 454 F.3d 82, 87 (1st Cir. 2006)). By\\n\\ncontrast, we review factual findings under the deferential\\n\\n\\\"'substantial evidence standard,' meaning that we will not disturb\\n\\nsuch findings if they are 'supported by reasonable, substantial,\\n\\nand probative evidence on the record considered as a whole.'\\\"\\n\\nAguilar-Escoto v. Sessions, 874 F.3d 334, 336-37 (1st Cir. 2017)\\n\\n(quoting Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir 2015)).\\n\\n An applicant can obtain asylum by proving that he or she\\n\\nis a refugee pursuant to section 101(a)(42)(A) of the Immigration\\n\\nand Nationality Act (\\\"INA\\\"). 8 U.S.C. § 1101, 1158. The\\n\\napplicant must show that she is \\\"unable or unwilling\\\" to return to\\n\\nher country of origin \\\"because of persecution or a well-founded\\n\\nfear of persecution on account of race, religion, nationality,\\n\\nmembership in a particular social group, or political opinion.\\\"\\n\\n8 U.S.C. § 1101(a)(42)(A) (emphasis added).\\n\\n\\n\\n\\n -7-\\n\\f To determine that a petitioner is a member of a\\n\\nparticular social group, the petitioner must establish that the\\n\\nproposed group is \\\"(1) composed of members who share a common\\n\\nimmutable characteristic, (2) defined with particularity, and\\n\\n(3) socially distinct within the society in question.\\\" Vega-Ayala\\n\\nv. Lynch, 833 F.3d 34, 39 (1st Cir. 2016) (quoting Paiz-Morales v.\\n\\nLynch, 795 F.3d 238, 244 (1st Cir. 2015)). \\\"An immutable\\n\\ncharacteristic is one that 'members of the group either cannot\\n\\nchange, or should not be required to change because it is\\n\\nfundamental to their individual identities or consciences.'\\\" Id.\\n\\n(quoting Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012)).\\n\\n In order to meet the particularity requirement, \\\"a group\\n\\nmust be 'discrete and have definable boundaries-- it must not be\\n\\namorphous, overbroad, diffuse or subjective.'\\\" Paiz-Morales, 795\\n\\nF.3d at 244 (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227, 239\\n\\n(BIA 2014)). Finally, social distinction refers to \\\"whether those\\n\\nwith a common immutable characteristic are set apart, or distinct,\\n\\nfrom other persons within the society in some significant way.\\\"\\n\\nMatter of M-E-V-G-, 26 I. & N. Dec. at 238. In other words, a\\n\\nsocially distinct group is one that is recognized or perceived as\\n\\nsuch within the petitioner's society. Id. In 2014, the BIA held\\n\\nthat \\\"married women in Guatemala who are unable to leave their\\n\\nrelationship\\\" can constitute a cognizable particular social group\\n\\n\\n -8-\\n\\fthat forms the basis of a claim for asylum or withholding of\\n\\nremoval. Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014).\\n\\nRivas-Durán's application for asylum was based on a social group\\n\\nallegedly analogous to that of Matter of A-R-C-G-.1\\n\\n On appeal, Rivas-Durán challenges the BIA's\\n\\ndetermination that the IJ \\\"clearly erred in determining that [she]\\n\\nis a member of a particular social group [of] 'women in El Salvador\\n\\nunable to leave a domestic relationship.'\\\" She argues that the\\n\\nrecord compelled the IJ's finding that she fits within that\\n\\nproposed social group. She contends that she indeed was in a\\n\\ndomestic relationship, even though she did not live with Pedro.\\n\\nShe explains that her relationship with Pedro \\\"was a domestic\\n\\nrelationship in that they had two children together, they both had\\n\\nfeelings for one another, Pedro expressed concern for her as the\\n\\nmother of his children, [she] expressed jealousy at learning of\\n\\n\\n\\n1 After this appeal was filed, the Attorney General overruled\\nMatter of A-R-C-G-, finding that \\\"without performing the rigorous\\nanalysis required by the [BIA's] precedents,\\\" it recognized \\\"an\\nexpansive new category of particular social groups based on private\\nviolence.\\\" Matter of A-B, 27 I & N Dec. 316, 317, 319 (A.G. 2018).\\nNone of the parties request remand for application of Matter of A-\\nB in the first instance. In any case, we need not remand, as the\\nBIA found that Rivas-Durán did not prove that she was a member of\\nher proposed social group, even when Matter of A-R-C-G- was still\\nin effect, and the intervening case would not change that result.\\nHere, we need not reach the question of whether Rivas-Durán's\\nproposed social group was cognizable, which is where Matter of A-\\nR-C-G would come into play.\\n\\n\\n -9-\\n\\fhis other relationships and still imagines being with him as\\n\\nparents to their twins.\\\" Furthermore, she stresses that \\\"Pedro,\\n\\nverbally and physically, from 2010 until 2015, expressed his belief\\n\\nthat [she] belonged to him, despite her expression of having 'ended\\n\\nit' in 2010.\\\" Finally, she contends that, even if she never lived\\n\\nwith Pedro, \\\"further evidence of [her] inability to leave the\\n\\nrelationship are the unsuccessful attempts she made to end her\\n\\ncommunication with Pedro.\\\" Her arguments are unpersuasive.\\n\\n The BIA's holding that the IJ clearly erred is \\\"a legal\\n\\ndetermination that the evidence in the record was insufficient as\\n\\na matter of law to support the IJ's factual finding.\\\"\\n\\nRosales Justo v. Sessions, 895 F.3d 154, 161 (1st Cir. 2018).\\n\\nThus, \\\"because the BIA's holding that the IJ committed clear error\\n\\nis legal in nature, our review of that conclusion is de novo.\\\"\\n\\nId. at 162. We conduct de novo review \\\"of the justifications\\n\\nprovided by the BIA for concluding that the IJ's finding . . . was\\n\\nclearly erroneous.\\\" Id.\\n\\n We agree with the BIA that \\\"the record was insufficient\\n\\nas a matter of law to support the IJ's factual finding\\\" that Rivas-\\n\\nDurán fit within her proposed social group. Id. at 161. The BIA\\n\\nhighlighted that Rivas-Durán and Pedro never lived together, were\\n\\nnot married or engaged, and that although her ex-partner harassed\\n\\nher intermittently over various years, her relationship did not\\n\\n\\n -10-\\n\\f\\\"have the hallmarks of a domestic relationship required to\\n\\nestablish membership in a particular social group.\\\" The record\\n\\nsupports this determination.\\n\\n First, Cortez-Cardona v. Sessions, 848 F.3d 519 (1st\\n\\nCir. 2017), discredits Rivas-Durán's interpretation of what\\n\\nqualifies as a \\\"domestic\\\" relationship. In Cortez-Cardona, the\\n\\nasylum applicant had been in an abusive relationship with a gang\\n\\nmember. Id. at 520. She maintained that she belonged to two\\n\\nproposed social groups: \\\"Guatemalan women in domestic\\n\\nrelationships who are unable to leave\\\" and \\\"women who are viewed\\n\\nas property by virtue of their positions within a domestic\\n\\nrelationship.\\\" Id. at 523. The BIA emphasized the definition of\\n\\n\\\"domestic,\\\" which included \\\"devoted to home life or household\\n\\naffairs,\\\" and found that Cortez-Cardona was not in a domestic\\n\\nrelationship where she had dated her ex-partner for various months\\n\\nand after that refused his offer to \\\"be his woman.\\\" Id. at 523.\\n\\nWe upheld the BIA's stance. Id. at 523-24.\\n\\n Moreover, the BIA cited Vega-Ayala v. Lynch, 833 F.3d 34\\n\\n(1st Cir. 2016), which also supports denial of Rivas-Durán's\\n\\npetition. Vega-Ayala argued that she had been persecuted because\\n\\nof her membership in the particular social group of \\\"Salvadoran\\n\\nwomen in intimate relationships with partners who view them as\\n\\nproperty.\\\" Id. at 36. The BIA found, and this court sustained,\\n\\n\\n -11-\\n\\fthat Vega-Ayala failed to show that her proposed social group was\\n\\nimmutable, as she had not demonstrated an inability to leave her\\n\\npartner. Id. at 39. This court distinguished Vega-Ayala's case\\n\\nfrom Matter of A-R-C-G- in that she\\n\\n never lived with [her partner]. She saw him only\\n twice a week and continued to attend a university.\\n She chose to live in a home that he purchased in her\\n name while he was in jail. Their relationship spanned\\n only eighteen months, and he was incarcerated for\\n twelve of those months.\\\"\\n\\nId.\\n As in Vega-Ayala and Cortez-Cardona, and unlike the\\n\\napplicant in Matter of A-R-C-G-, it is undisputed that Rivas-Durán\\n\\nnever lived with Pedro, but rather chose to live with her father.\\n\\nPedro never forced her to leave her father's house to stay with\\n\\nhim. She was only in contact with Pedro when he sporadically\\n\\ntried to contact her or visit her and the twins in her father's\\n\\nhome. And Rivas-Durán has provided no authority for her\\n\\nproposition that she was in a domestic relationship merely because\\n\\nshe bore Pedro's children and they \\\"had feelings for one another.\\\"2\\n\\n\\n\\n2 Rivas-Durán contends that a woman's marital status should not\\nbe \\\"the determinative factor\\\" in deciding her domestic violence\\nasylum claim. As was the case in Cortez-Cardona, 848 F.3d at 523,\\nthe BIA here focused on whether the relationship was \\\"domestic,\\\"\\nnot on whether Rivas-Durán was married. Rivas-Durán does not\\npoint to, and we did not find, anything in the record or the BIA's\\ndecision that suggests that marriage was the determining factor in\\nthe BIA's decision. Thus, we need not linger on this undeveloped\\nargument.\\n\\n\\n -12-\\n\\fHence, hers was not a \\\"domestic\\\" relationship, as has been\\n\\ninterpreted by the BIA and this court.3\\n\\n III. Conclusion\\n\\n For the reasons discussed above, we deny Rivas-Durán's\\n\\npetition. See Cortez-Cardona, 848 F.3d at 523 (finding that the\\n\\nrecord supported the BIA's determination that petitioner \\\"had not\\n\\ndemonstrated factually that she fit within her own proposed social\\n\\ngroups\\\").\\n\\n\\n\\n\\n3 The same reasoning is dispositive of petitioner's claim for\\nwithholding of removal. As with asylum, an alien seeking\\nwithholding of removal must show that any persecution is on account\\nof one of the protected grounds, including membership in a \\\"legally\\ncognizable social group.\\\" Paiz-Morales, 795 F.3d at 245 (noting\\nthat withholding of removal \\\"requires a showing that an alien is\\nmore likely than not to face persecution on account of a protected\\nground,\\\" and that \\\"[a] petitioner who cannot clear the lower hurdle\\nfor asylum will necessarily fail to meet the higher bar for\\nwithholding of removal\\\").\\n\\n\\n -13-\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2377,"cells":{"id":{"kind":"number","value":8619568,"string":"8,619,568"},"name":{"kind":"string","value":"United States v. Kevin Joniel MÉNDEZ-BÁEZ"},"name_abbreviation":{"kind":"string","value":"United States v. Méndez-Báez"},"decision_date":{"kind":"string","value":"2019-06-17"},"docket_number":{"kind":"string","value":"No. 18-1732"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Barron, Howard, Kayatta\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8598818/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"BARRON"},"judge2":{"kind":"string","value":"HOWARD"},"judge3":{"kind":"string","value":"KAYATTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8619568/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Kevin Joniel MÉNDEZ-BÁEZ\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Kevin Joniel MÉNDEZ-BÁEZ\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2378,"cells":{"id":{"kind":"number","value":4631289,"string":"4,631,289"},"name":{"kind":"string","value":"David GIGUERE, on His Own Behalf and on Behalf of All Others Similarly Situated, Plaintiff, Appellee/Cross-Appellant, Kellon Alexis; Sylvia Ouellette ; Linda Perry; Lee Southwick; Kimberly Farrell ; Mary Feeley ; Lindsay Gagne; Jerry Garcia; Crystal Jackman; Ryan Jarrell; Renee Jordan ; Christine Poore; Brie Gaia Reed; Neverly Ruda; Zu-Chyun Speaker; Renovat Baragengana; Robert Bissell; Theresa Bissell ; Long Cao ; Darren Chevrier; Kenneth Cole; Cynthia Cookingham; Susan Desjardins; John Farrell; Robert Brogden ; Debra Dow; Paige Harris ; Susan MacDonald; Eric Nkurunziza; Eulade Nkurunziza, Plaintiffs, v. PORT RESOURCES INC., Defendant, Appellant/Cross-Appellee."},"name_abbreviation":{"kind":"string","value":"Giguere v. Port Resources Inc."},"decision_date":{"kind":"string","value":"2019-06-19"},"docket_number":{"kind":"string","value":"18-2073P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Kayatta, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"LYNCH, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNos. 18-2073\\n 18-2163\\n\\n DAVID GIGUERE, on his own behalf and on behalf of all others\\n similarly situated,\\n\\n Plaintiff, Appellee/Cross-Appellant,\\n\\n KELLON ALEXIS; SYLVIA OUELLETTE; LINDA PERRY; LEE SOUTHWICK;\\n KIMBERLY FARRELL; MARY FEELEY; LINDSAY GAGNE; JERRY GARCIA;\\n CRYSTAL JACKMAN; RYAN JARRELL; RENEE JORDAN; CHRISTINE POORE;\\n BRIE GAIA REED; NEVERLY RUDA; ZU-CHYUN SPEAKER;\\n RENOVAT BARAGENGANA; ROBERT BISSELL; THERESA BISSELL; LONG CAO;\\n DARREN CHEVRIER; KENNETH COLE; CYNTHIA COOKINGHAM;\\n SUSAN DESJARDINS; JOHN FARRELL; ROBERT BROGDEN; DEBRA DOW;\\n PAIGE HARRIS; SUSAN MACDONALD; ERIC NKURUNZIZA;\\n EULADE NKURUNZIZA,\\n\\n Plaintiffs,\\n\\n v.\\n\\n PORT RESOURCES INC.,\\n\\n Defendant, Appellant/Cross-Appellee.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. Nancy Torresen, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Timothy H. Norton, with whom Graydon G. Stevens and Kelly,\\nRemmel & Zimmerman were on brief, for Port Resources, Inc.\\n\\f Peter Mancuso, with whom Andrew Schmidt and Andrew Schmidt\\nLaw PLLC were on brief, for David Giguere.\\n\\n\\n June 19, 2019\\n\\f LYNCH, Circuit Judge. The Fair Labor Standards Act\\n\\n(FLSA), 29 U.S.C. § 201 et seq., sets federal minimum-wage,\\n\\nmaximum-hour, and overtime guarantees. When an employer fails to\\n\\nmeet these requirements, the FLSA gives employees a private right\\n\\nof action to recover their due. Id. § 216(b).\\n\\n These cross-appeals come from an action, brought as an\\n\\nFLSA collective action and as an individual action under analogous\\n\\nMaine labor laws, to recover what are alleged to be unpaid overtime\\n\\nwages. The employer, defendant Port Resources, disputes that such\\n\\nwages are owed. Under its sleep-time policy, Port Resources did\\n\\nnot pay employees like plaintiff David Giguere for eight hours\\n\\neach night, even though the employees were on duty during that\\n\\ntime.\\n\\n The district court found that this policy was unlawful,\\n\\nGiguere v. Port Res., Inc. (Giguere I), No. 16-CV-58-NT, 2018 WL\\n\\n1997754, at *10 (D. Me. Apr. 27, 2018), and so awarded back wages\\n\\nto the collective-action plaintiffs and treble damages to Giguere,\\n\\nGiguere v. Port Res., Inc. (Giguere II), No. 16-CV-58-NT, 2018 WL\\n\\n5268600, at *5 (D. Me. Oct. 23, 2018).\\n\\n Finding no error in the district court's carefully\\n\\nreasoned opinions, we affirm.\\n\\n\\n\\n\\n - 3 -\\n\\f I.\\n\\n A.\\n\\n Port Resources is a nonprofit organization that runs\\n\\ngroup homes (which it calls \\\"programs\\\") that provide housing and\\n\\nservices to adults with developmental disabilities and behavioral\\n\\nhealth challenges. It uses a long-term-staff model to care for\\n\\nprogram clients. Its long-term staff provide daily living skills\\n\\ndevelopment, administer medication, and assist with personal care\\n\\nand community integration. And, true to that name, long-term staff\\n\\nwork long shifts -- seven days on and seven days off, from Thursday\\n\\nto Thursday. One set of long-term staff alternates with another\\n\\nassigned to the same residence. Twenty Port Resources programs\\n\\nhave this setup, and eleven of those twenty also have \\\"overnight\\n\\nawake staff\\\" responsible for attending to clients during the night,\\n\\nas necessary.\\n\\n A long-term staff's weeklong shift includes four four-\\n\\nhour unpaid breaks and eight hours of nightly unpaid sleep time.\\n\\nThis sleep-time arrangement is governed by a written \\\"Sleep Time\\n\\nAgreement,\\\" which provides in full:\\n\\n This confirms the agreement between Port\\n Resources and a Direct Support Professional\\n who may be assigned to be on duty for one or\\n more twenty-four (24) [hour] shifts.\\n\\n Under wage and hour guidelines, 29 C.F.R.\\n sections 785.221 and 785.23, where an employee\\n\\n 1 Though Port Resources cites section 785.22, in this\\nlitigation it has \\\"affirmatively conceded that it is not relying\\n\\n\\n - 4 -\\n\\f is required to be on duty for 24 hours or more,\\n the employer and the employee may agree to\\n exclude from hours worked a bona fide meal\\n period and a bona fide regularly scheduled\\n sleeping period of not more than 8 hours,\\n provided that adequate sleeping facilities are\\n furnished by the employer and the employee can\\n usually enjoy an uninterrupted night's sleep.\\n\\n If the sleeping period is interrupted by a\\n call to duty, the interruption will be counted\\n as hours worked. If the employee cannot get\\n at least 5 hours' sleep during the scheduled\\n sleep period, the entire time should be\\n treated as working time. The eight-hour\\n sleeping period will be excluded from hours\\n worked unless performance of work duties is\\n required.\\n\\n If the Direct Support Professional does have\\n to work during the sleep period, they should\\n record their time worked on the daily service\\n charts and notify their Program Manager of the\\n interruption so that their electronic time\\n sheet can be corrected.\\n\\n If anyone has any questions, please feel free\\n to contact the Director of Human Resources.\\n\\nIt remains contested how often long-term staff must attend to the\\n\\nprogram clients during scheduled sleep time.\\n\\n Port Resources has chosen to compute its payroll\\n\\nworkweek from Sunday to Sunday, so each long-term-staff shift spans\\n\\ntwo payroll workweeks. This means that Port Resources pays long-\\n\\nterm staff for forty hours of work during their first payroll\\n\\nworkweek (Thursday to Saturday) and for fifty-six hours of work\\n\\n\\n\\n\\non [section] 785.22 to support its sleep policy.\\\" Giguere I, 2018\\nWL 1997754, at *9 n.12.\\n\\n\\n - 5 -\\n\\fduring their second (Sunday to Thursday). Port Resources does not\\n\\npay its long-term staff for their fifty-six hours of sleep time\\n\\n(Thursday to Thursday).\\n\\n B.\\n\\n David Giguere, a former Port Resources employee, sued\\n\\nPort Resources, alleging that its sleep-time policy violated the\\n\\nFLSA; the Maine Wages and Medium of Payment Act (the Wages Act),\\n\\nMe. Stat. tit. 26, §§ 621-A, 626-A, 629; and the Maine Minimum\\n\\nWage Law, id. §§ 663, 664, 670.2\\n\\n The district court conditionally granted collective\\n\\naction status for the FLSA claim, and thirty individual employees\\n\\nbesides Giguere opted in. Giguere brought his Maine claims only\\n\\non his own behalf.3\\n\\n Both parties moved for summary judgment, which the\\n\\ndistrict court granted to Giguere and the other collective-action\\n\\nplaintiffs on the FLSA claim and to Giguere on his two Maine law\\n\\ncounts.4 Giguere I, 2018 WL 1997754, at *10. The district court\\n\\n\\n\\n 2 Giguere also brought, but then voluntarily withdrew, a\\nclaim for alleged breach of contract and unjust enrichment.\\n 3 To be more precise, Giguere at first sought class action\\nstatus for his Maine law counts, but later voluntarily abandoned\\nthat request.\\n 4 The district court then held a bench trial to determine\\nwhether Port Resources could establish a good-faith defense to\\nliquidated damages under the FLSA. The district court found that\\nPort Resources had acted in good faith and the parties stipulated\\nto the back wages owed each plaintiff.\\n\\n\\n - 6 -\\n\\fthen awarded Giguere treble damages under the Wages Act. Giguere\\n\\nII, 2018 WL 5268600, at *5.\\n\\n Both parties appealed.\\n\\n II.\\n\\n We review the district court's summary judgment rulings\\n\\nde novo. Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217,\\n\\n223 (1st Cir. 2013). And because the parties filed cross-motions\\n\\nfor summary judgment, we \\\"view each motion separately, drawing all\\n\\ninferences in favor of the nonmoving party.\\\" Fadili v. Deutsche\\n\\nBank Nat. Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014).\\n\\n A.\\n\\n Port Resources argues that the district court erred in\\n\\nconcluding that it had violated the FLSA by not compensating its\\n\\nlong-term staff for their sleep time. We find no such error, so\\n\\nwe affirm.\\n\\n We begin with background. The FLSA's usual rule is that\\n\\nan employer must pay an employee for all time the employee is\\n\\nrequired to spend at a worksite, even sleep time. See 29 C.F.R.\\n\\n§ 785.7 (\\\"The workweek ordinarily includes 'all the time during\\n\\nwhich an employee is necessarily required to be on the employer's\\n\\npremises, on duty or at a prescribed work place.'\\\" (quoting\\n\\nAnderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-91 (1946))).\\n\\nBut the Department of Labor's (DOL) regulations also provide that\\n\\n\\n\\n\\n - 7 -\\n\\fif \\\"certain conditions\\\" are met, an employer may carve worksite\\n\\nsleep time out of an employee's hours worked. Id. § 785.20.5\\n\\n Port Resources relies on one such sleep-time regulation:\\n\\n29 C.F.R. § 785.23, which covers \\\"live-in\\\" employees. If such an\\n\\nemployee \\\"resides on his employer's premises on a permanent basis\\n\\nor for extended periods of time,\\\" he and the employer may enter\\n\\ninto \\\"any reasonable agreement\\\" about payment for sleep time. Id.\\n\\n No one claims this regulation is unambiguous. Aware of\\n\\nconfusion about the regulation, DOL interpreted the term \\\"extended\\n\\nperiods of time\\\" in a 1988 enforcement memorandum. That memorandum\\n\\nstated that an employee meets the extended-periods-of-time\\n\\nstandard when, as relevant here, he \\\"resides on the premises for\\n\\na period of at least 120 hours in a workweek.\\\" U.S. Dep't of\\n\\nLabor, Wage & Hour Div., Enforcement Policy, (June 30, 1988), 1988\\n\\nWL 614199, at *2 (emphasis added). The memorandum defined\\n\\n\\\"workweek\\\" as \\\"seven consecutive 24-hour periods,\\\" citing 29\\n\\nC.F.R. § 778.105, id., which provides that an employee's workweek\\n\\n\\\"need not coincide with the calendar week,\\\" but once the employer\\n\\nhas established when the workweek begins, the workweek's span\\n\\n\\n\\n 5 Section 785.20 states: \\\"Under certain conditions an\\nemployee is considered to be working even though some of his time\\nis spent in sleeping or in certain other activities.\\\" Though this\\nmight be read to imply that sleep time is generally not counted as\\nhours worked, context shows the opposite. In immediately following\\nsections, DOL carefully delineates when an employer may exclude\\nworksite sleep time from an employee's hours worked.\\n\\n\\n - 8 -\\n\\f\\\"remains fixed regardless of the schedule of hours worked by [the\\n\\nemployee],\\\" 29 C.F.R. § 778.105.\\n\\n Port Resources concedes that it \\\"established\\\" a Sunday-\\n\\nto-Sunday workweek for payroll purposes. And it makes no attempt\\n\\nto show that its long-term staff reside on its premises for 120\\n\\nhours within that payroll workweek.\\n\\n Port Resources instead argues that DOL did not in its\\n\\nmemorandum intend to make the workweek the baseline for determining\\n\\nwhether an employee resided on the employer's premises for\\n\\n\\\"extended periods of time.\\\" This argument turns on the text of\\n\\nDOL's 1988 memorandum, so we quote that memorandum's key language\\n\\nin full:\\n\\n Under circumstances where an employee does not\\n maintain his or her permanent residence on the\\n premises and does not otherwise reside on the\\n premises 7 days a week, [DOL's Wage and Hour\\n Division (WH)] will consider an employee who\\n sleeps in private quarters, in a homelike\\n environment, to reside on the premises for an\\n extended period of time within the meaning of\\n [section] 785.23 if the employee resides on\\n the premises for a period of at least 120 hours\\n in a workweek.\\n\\n WH is refining and restating the minimum\\n conditions required to meet this rule. An\\n employee will be found to reside on the\\n premises for extended periods of time if:\\n\\n (1) the employee is on duty at the group\\n home and is compensated for at least\\n eight hours in each of five consecutive\\n 24-hour periods; and\\n\\n (2) the employee sleeps on the premises\\n for all sleep periods between the\\n\\n\\n - 9 -\\n\\f beginning and end of this 120-hour\\n period.\\n\\n1988 WL 614199, at *2. Port Resources argues that after laying\\n\\nout its 120-hours-in-a-workweek standard, DOL then \\\"refin[ed] and\\n\\nrestat[ed] the minimum conditions required to meet this rule\\\"\\n\\nwithout any mention of the term \\\"workweek.\\\" Port Resources then\\n\\nattempts to bolster this argument with opinion letters,\\n\\ninterpretations, and bulletins spanning the three decades since\\n\\nDOL's 1988 memorandum.\\n\\n While the question is not free from doubt (and further\\n\\nclarification from DOL may be warranted6), we think Giguere has\\n\\nthe better reading of DOL's memorandum. First, nothing in the\\n\\nlanguage Port Resources relies on repudiates the DOL's statement\\n\\nthat the extended-periods-of-time standard requires \\\"reside[nce]\\n\\non the [employer's] premises for a period of at least 120 hours in\\n\\na workweek.\\\" The language Port Resources relies on follows\\n\\ndirectly after that statement. So Port Resources' argument is\\n\\nthat DOL announced a workweek-based rule in one breath and then\\n\\ndisclaimed it in the next. The better reading of the language\\n\\n\\n\\n\\n 6 We note that neither party sought guidance from DOL on\\nthis issue. See 29 C.F.R. § 785.1 (noting that \\\"[i]f doubt arises\\\"\\nin \\\"determining what constitutes working time\\\" under DOL's\\nregulations, the party in doubt should send \\\"inquiries\\\" to DOL).\\nAnd neither party has asked that we seek guidance from DOL. So,\\npreferring not to further delay resolution of this case, we will\\nproceed without seeking such clarification.\\n\\n\\n - 10 -\\n\\fPort Resources relies on is that it is what it says it is: a\\n\\nrefinement of \\\"this rule\\\" -- that is, DOL's workweek-based rule.\\n\\n Second, the 1988 memorandum has not been superseded. It\\n\\nremains the most comprehensive of DOL's analyses of section 785.23.\\n\\nAnd DOL's later documents do not deviate from its analysis; rather,\\n\\nthey continue to reference the 1988 memorandum. DOL has, as\\n\\nrecently as 2014, referred to the 1988 memorandum in interpreting\\n\\nsection 785.23. See U.S. Dep't of Labor, Wage & Hour Div.,\\n\\nAdministrator's Interpretation No. 2014-1 (Mar. 27, 2014), 2014 WL\\n\\n1276986 at *12 n.22.\\n\\n And third, Port Resources' argument requires us to\\n\\nassume that DOL did not \\\"consciously\\\" establish the workweek\\n\\nstandard. But DOL not only used the term \\\"workweek,\\\" it also noted\\n\\nthat \\\"workweek\\\" and several terms like it \\\"ha[d] caused some\\n\\ndifficulty.\\\" 1988 WL 614199, at *2. It then listed those terms\\n\\nand \\\"defined [them] for further guidance.\\\" Id. And its definition\\n\\nof \\\"workweek\\\" referred to an already promulgated regulation: 29\\n\\nC.F.R. § 778.105. This careful attention belies Port Resources'\\n\\nargument.\\n\\n We conclude that the better reading of DOL's memorandum\\n\\nis that the agency analyzes section 785.23 with reference to an\\n\\nemployer's workweek. The question then becomes one of deference.\\n\\nThe parties dispute whether the rubric of Auer v. Robbins, 519\\n\\nU.S. 452 (1997), or Skidmore v. Swift & Co., 323 U.S. 134 (1944),\\n\\n\\n - 11 -\\n\\fapplies. We need not address this issue because, even were we to\\n\\nagree with Port Resources that Skidmore, not Auer, applies, we see\\n\\nno reason to depart from DOL's understanding of its own regulation.\\n\\nCf. Fawcett v. Citizens Bank, N.A., 919 F.3d 133, 138 (1st Cir.\\n\\n2019). DOL set forth its interpretation of section 785.23 in an\\n\\nenforcement memorandum. And as the Supreme Court has cautioned,\\n\\n\\\"[g]ood administration of the [FLSA] and good judicial\\n\\nadministration alike require that the standards of public\\n\\nenforcement and those for determining private rights shall be at\\n\\nvariance only where justified by very good reasons.\\\" Skidmore,\\n\\n323 U.S. at 140. Port Resources points to no such \\\"very good\\n\\nreasons\\\" here.\\n\\n Port Resources argues that a fixed workweek standard\\n\\ngoes against the principle that an employee's work schedule need\\n\\nnot coincide with his payroll workweek. But that principle does\\n\\nnot carry the day. The question is not whether Port Resources can\\n\\nstructure its employees' shifts to, for instance, minimize its\\n\\novertime obligations, but whether those employees reside on Port\\n\\nResources' premises for \\\"extended periods of time.\\\" And under the\\n\\nmost likely reading of DOL's interpretation, the employees do not.\\n\\n Port Resources' remaining argument is that implementing\\n\\na workweek standard is arbitrary. We think not. The workweek is\\n\\nthe \\\"basic unit\\\" of the FLSA. O'Brien v. Town of Agawam, 350 F.3d\\n\\n279, 298 (1st Cir. 2003); see 29 U.S.C. § 207(a)(1); cf. 29 C.F.R.\\n\\n\\n - 12 -\\n\\f§ 776.4(a) (\\\"The workweek is to be taken as the standard in\\n\\ndetermining the applicability of the Act.\\\"). There is nothing\\n\\narbitrary about using the FLSA's \\\"basic unit\\\" of time in\\n\\ninterpreting the phrase \\\"extended periods of time.\\\"\\n\\n Measuring \\\"extended periods of time\\\" with reference to\\n\\nthe workweek \\\"established\\\" under section 778.105 also makes sense\\n\\nwithin DOL's regulatory scheme. The agency has instructed that\\n\\nthe FLSA \\\"takes a single workweek as its standard.\\\" 29 C.F.R.\\n\\n§ 778.104. From this we conclude that the workweek the employer\\n\\nhas chosen is the workweek the employer has chosen.7\\n\\n We are also mindful of the interpretive rule that\\n\\nambiguities in the exceptions to the FLSA's general rules should\\n\\nbe resolved in favor of employees. See Cash v. Cycle Craft Co.,\\n\\n508 F.3d 680, 683 (1st Cir. 2007) (noting that the FLSA's remedial\\n\\nnature \\\"'requires that [its] exemptions be narrowly construed\\n\\nagainst the employers seeking to assert them' and 'limited to those\\n\\nestablishments plainly and unmistakably within [the exemptions']\\n\\nterms and spirit.'\\\" (alterations in original) (quoting Reich v.\\n\\nJohn Alden Life Ins. Co., 126 F.3d 1, 7 (1st Cir. 1997))); cf.\\n\\n\\n\\n 7 Port Resources can set the start of its workweek to\\nminimize its overtime obligations. See Abshire v. Redland Energy\\nServs., LLC, 695 F.3d 792, 795-96 (8th Cir. 2012); Johnson v.\\nHeckmann Water Res. (CVR), Inc., 758 F.3d 627, 633 (5th Cir. 2014).\\nAnd it can set the start of its week to minimize its sleep-time-\\npayment obligations. But, having made its choice, Port Resources\\ncannot now complain that it is unfair to hold it to it.\\n\\n\\n - 13 -\\n\\fO'Connor v. Oakhurst Dairy, 851 F.3d 69, 79 (1st Cir. 2017) (noting\\n\\na parallel \\\"default rule of construction under Maine law\\\"). The\\n\\nFLSA was designed to protect workers \\\"from 'the evil of overwork\\n\\nas well as underpay.'\\\" Barrentine v. Arkansas-Best Freight Sys.,\\n\\nInc., 450 U.S. 728, 739 (1981) (internal quotation marks omitted)\\n\\n(quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578\\n\\n(1942)). Section 785.23 advances that purpose by carefully\\n\\ndistinguishing between \\\"live-in\\\" employees, who are essentially at\\n\\nhome on the employer's premises, and nonresidential employees, who\\n\\nare not. And DOL's interpretation of that regulation, as we have\\n\\nconstrued it, provides a useful frame of reference -- the\\n\\nworkweek -- to analyze that distinction.\\n\\n Applying that interpretation, we hold that Port\\n\\nResources has not carried the burden necessary to invoke section\\n\\n785.23. We affirm the district court's finding that Port\\n\\nResources' sleep-time policy violated the FLSA.\\n\\n B.\\n\\n The remaining issues arise under Maine law and relate\\n\\nonly to the district court's damages award, not its liability\\n\\ndetermination.8 The district court held that Port Resources had\\n\\n\\n\\n 8 The district court found that \\\"Maine [wa]s likely to\\nfollow federal law\\\" on sleep time. Giguere I, 2018 WL 1997754, at\\n*10; see TerMorshuizen v. Spurwink Servs., Inc., Cum-18-288, 2019\\nWL 2181252, at *3 (Me. May 21, 2019). So, because it had granted\\nsummary judgment to Giguere on his FLSA claim, the district court\\n\\\"f[ound] that summary judgment for Giguere [wa]s also appropriate\\n\\n\\n - 14 -\\n\\fviolated both the Wages Act and the Minimum Wage Law. Giguere I,\\n\\n2018 WL 1997754, at *10. It awarded Giguere treble damages under\\n\\nthe Wages Act but did not also award him double damages under the\\n\\nMinimum Wage law, concluding that Maine's rule against double\\n\\nrecovery precluded the second, smaller damage award. Giguere II,\\n\\n2018 WL 5268600, at *4.\\n\\n Both parties argue that the district court erred:\\n\\nGiguere argues that he has a right to recover under both the Wages\\n\\nAct and the Minimum Wage law. And Port Resources argues that he\\n\\nis only entitled to recovery under the Minimum Wage Law. We reject\\n\\nboth arguments in turn.\\n\\n Maine law provides that a plaintiff may not receive two\\n\\ndamages awards for the same loss. Theriault v. Swan, 558 A.2d\\n\\n369, 372 (Me. 1989). A potential exception to this no-double-\\n\\nrecovery rule arises when the two damages awards serve different\\n\\npurposes; that is, when one is remedial and the other is punitive.\\n\\nSee, e.g., St. Luke's Cataract & Laser Inst., P.A. v. Sanderson,\\n\\n573 F.3d 1186, 1204 (11th Cir. 2009). Both parties agree that the\\n\\n\\n\\non [his] Maine law claims.\\\" Giguere I, 2018 WL 1997754, at *10.\\nPort Resources says that if we reverse the district court's FLSA\\njudgment we should overturn its conclusion that Port Resources\\nalso violated Maine law. Giguere, in turn, argues that we can\\naffirm the district court's judgment that Port Resources violated\\nMaine law even if we reverse its judgment that Port Resources\\nviolated the FLSA. Since we have affirmed the district court's\\nFLSA determination, we affirm on the Maine law count without\\naddressing either party's argument.\\n\\n\\n - 15 -\\n\\fdamages for Port Resources' violations of the Minimum Wage Law are\\n\\nremedial, so the question on appeal is whether the penalties for\\n\\nviolating the Wages Act are punitive, so as to require two\\n\\npayments.\\n\\n The Maine Supreme Judicial Court has strongly suggested\\n\\nthat the Wages Act's purpose is remedial. See Bisbing v. Me. Med.\\n\\nCtr., 820 A.2d 582, 584-85 (Me. 2003) (awarding the plaintiff\\n\\nappellate attorneys' fees under the Wages Act, as the Court had\\n\\ndone \\\"under other remedial statutes,\\\" id. at 585, and referencing\\n\\nthe statute's \\\"broadly protective purpose,\\\" id. at 584). Maine\\n\\nWages Act violations entitle a plaintiff to unpaid wages plus \\\"an\\n\\nadditional amount equal to twice the amount of unpaid wages as\\n\\nliquidated damages.\\\" Me. Stat. tit. 26, § 626-A; see Cooper v.\\n\\nSpringfield Terminal Ry. Co., 635 A.2d 952, 955 (Me. 1993). In\\n\\nMaine, such statutory treble damages provisions are generally\\n\\nconsidered remedial rather than punitive in nature. Andrew M.\\n\\nHorton & Peggy L. McGehee, Maine Civil Remedies 77 & n.132 (4th\\n\\ned. 2004) (citing Michaud v. City of Bangor, 203 A.2d 687 (Me.\\n\\n1964)). So we conclude, as did the district court, that Maine\\n\\ncourts would likely view any damages for Port Resources' Wages Act\\n\\nviolation to be remedial. And because both of Giguere's available\\n\\ndamages awards had a remedial purpose, the district court properly\\n\\nawarded him only one.\\n\\n\\n\\n\\n - 16 -\\n\\f Port Resources argues that the district court picked the\\n\\nwrong one. It argues that the district court should not have\\n\\nawarded Giguere treble damages under the Wages Act because nearly\\n\\nall Giguere's unpaid sleep hours were overtime. The Minimum Wage\\n\\nLaw grants the right to overtime pay, so Port Resources argues\\n\\nthat double damages under that law was the proper remedy.\\n\\n This argument rests on the canon against superfluity.\\n\\nMost Minimum Wage Law violations, Port Resources argues, will also\\n\\nviolate the Wages Act. And because the Wages Act provides the\\n\\ngreater remedy -- treble damages -- plaintiffs will always choose\\n\\nthat award. So to avoid making the Minimum Wage Law's double-\\n\\ndamages remedy superfluous, we should not allow recovery under the\\n\\nWages Act for overtime violations.\\n\\n There are at least two problems with this argument.\\n\\nFirst, Giguere is entitled to recovery under the Wages Act. So to\\n\\nhold that he cannot recover his due, we would have to create an\\n\\nexception to recovery under that Act. But the Wages Act provides\\n\\nthat any employer who violates its provisions \\\"is liable.\\\" Me.\\n\\nStat. tit. 26, § 626-A. It does not say \\\"is liable unless the\\n\\nunpaid wages are for overtime.\\\" We see no reason to depart from\\n\\nthe Wages Act's unambiguous language. See Gould v. A-1 Auto, Inc.,\\n\\n945 A.2d 1225, 1229 (Me. 2008).\\n\\n And second, the argument fails on its own terms. Under\\n\\nthe Wages Act, an employer cannot require, or even permit, an\\n\\n\\n - 17 -\\n\\femployee \\\"to work without monetary compensation.\\\" Me. Stat. tit.\\n\\n26, § 629(1). The Minimum Wage Law, by contrast, provides that\\n\\n\\\"[a]n employer may not require an employee to work more than 40\\n\\nhours in any one week unless [1.5] times the regular hourly rate\\n\\nis paid for all hours actually worked in excess of 40 hours in\\n\\nthat week.\\\" Id. § 664(3). The two laws target different concerns:\\n\\nThe Wages Act provides a remedy for unpaid work, while the Minimum\\n\\nWage Law provides a remedy for underpaid work. And because this\\n\\nis the case, Port Resources' superfluity argument is meritless.\\n\\n The district court properly awarded Giguere treble\\n\\ndamages as a remedy for Port Resources' Wages Act violation.\\n\\n III.\\n\\n We affirm. Costs are awarded to Giguere.\\n\\n\\n\\n\\n - 18 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408542/\", \"author_raw\": \"LYNCH, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"KAYATTA"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4631289/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: David GIGUERE, on His Own Behalf and on Behalf of All Others Similarly Situated, Plaintiff, Appellee/Cross-Appellant, Kellon Alexis; Sylvia Ouellette ; Linda Perry; Lee Southwick; Kimberly Farrell ; Mary Feeley ; Lindsay Gagne; Jerry Garcia; Crystal Jackman; Ryan Jarrell; Renee Jordan ; Christine Poore; Brie Gaia Reed; Neverly Ruda; Zu-Chyun Speaker; Renovat Baragengana; Robert Bissell; Theresa Bissell ; Long Cao ; Darren Chevrier; Kenneth Cole; Cynthia Cookingham; Susan Desjardins; John Farrell; Robert Brogden ; Debra Dow; Paige Harris ; Susan MacDonald; Eric Nkurunziza; Eulade Nkurunziza, Plaintiffs, v. PORT RESOURCES INC., Defendant, Appellant/Cross-Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNos. 18-2073\n 18-2163\n\n DAVID GIGUERE, on his own behalf and on behalf of all others\n similarly situated,\n\n Plaintiff, Appellee/Cross-Appellant,\n\n KELLON ALEXIS; SYLVIA OUELLETTE; LINDA PERRY; LEE SOUTHWICK;\n KIMBERLY FARRELL; MARY FEELEY; LINDSAY GAGNE; JERRY GARCIA;\n CRYSTAL JACKMAN; RYAN JARRELL; RENEE JORDAN; CHRISTINE POORE;\n BRIE GAIA REED; NEVERLY RUDA; ZU-CHYUN SPEAKER;\n RENOVAT BARAGENGANA; ROBERT BISSELL; THERESA BISSELL; LONG CAO;\n DARREN CHEVRIER; KENNETH COLE; CYNTHIA COOKINGHAM;\n SUSAN DESJARDINS; JOHN FARRELL; ROBERT BROGDEN; DEBRA DOW;\n PAIGE HARRIS; SUSAN MACDONALD; ERIC NKURUNZIZA;\n EULADE NKURUNZIZA,\n\n Plaintiffs,\n\n v.\n\n PORT RESOURCES INC.,\n\n Defendant, Appellant/Cross-Appellee.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n\n [Hon. Nancy Torresen, U.S. District Judge]\n\n\n Before\n\n Lynch, Kayatta, and Barron,\n Circuit Judges.\n\n\n Timothy H. Norton, with whom Graydon G. Stevens and Kelly,\nRemmel & Zimmerman were on brief, for Port Resources, Inc.\n\f Peter Mancuso, with whom Andrew Schmidt and Andrew Schmidt\nLaw PLLC were on brief, for David Giguere.\n\n\n June 19, 2019\n\f LYNCH, Circuit Judge. The Fair Labor Standards Act\n\n(FLSA), 29 U.S.C. § 201 et seq., sets federal minimum-wage,\n\nmaximum-hour, and overtime guarantees. When an employer fails to\n\nmeet these requirements, the FLSA gives employees a private right\n\nof action to recover their due. Id. § 216(b).\n\n These cross-appeals come from an action, brought as an\n\nFLSA collective action and as an individual action under analogous\n\nMaine labor laws, to recover what are alleged to be unpaid overtime\n\nwages. The employer, defendant Port Resources, disputes that such\n\nwages are owed. Under its sleep-time policy, Port Resources did\n\nnot pay employees like plaintiff David Giguere for eight hours\n\neach night, even though the employees were on duty during that\n\ntime.\n\n The district court found that this policy was unlawful,\n\nGiguere v. Port Res., Inc. (Giguere I), No. 16-CV-58-NT, 2018 WL\n\n1997754, at *10 (D. Me. Apr. 27, 2018), and so awarded back wages\n\nto the collective-action plaintiffs and treble damages to Giguere,\n\nGiguere v. Port Res., Inc. (Giguere II), No. 16-CV-58-NT, 2018 WL\n\n5268600, at *5 (D. Me. Oct. 23, 2018).\n\n Finding no error in the district court's carefully\n\nreasoned opinions, we affirm.\n\n\n\n\n - 3 -\n\f I.\n\n A.\n\n Port Resources is a nonprofit organization that runs\n\ngroup homes (which it calls \"programs\") that provide housing and\n\nservices to adults with developmental disabilities and behavioral\n\nhealth challenges. It uses a long-term-staff model to care for\n\nprogram clients. Its long-term staff provide daily living skills\n\ndevelopment, administer medication, and assist with personal care\n\nand community integration. And, true to that name, long-term staff\n\nwork long shifts -- seven days on and seven days off, from Thursday\n\nto Thursday. One set of long-term staff alternates with another\n\nassigned to the same residence. Twenty Port Resources programs\n\nhave this setup, and eleven of those twenty also have \"overnight\n\nawake staff\" responsible for attending to clients during the night,\n\nas necessary.\n\n A long-term staff's weeklong shift includes four four-\n\nhour unpaid breaks and eight hours of nightly unpaid sleep time.\n\nThis sleep-time arrangement is governed by a written \"Sleep Time\n\nAgreement,\" which provides in full:\n\n This confirms the agreement between Port\n Resources and a Direct Support Professional\n who may be assigned to be on duty for one or\n more twenty-four (24) [hour] shifts.\n\n Under wage and hour guidelines, 29 C.F.R.\n sections 785.221 and 785.23, where an employee\n\n 1 Though Port Resources cites section 785.22, in this\nlitigation it has \"affirmatively conceded that it is not relying\n\n\n - 4 -\n\f is required to be on duty for 24 hours or more,\n the employer and the employee may agree to\n exclude from hours worked a bona fide meal\n period and a bona fide regularly scheduled\n sleeping period of not more than 8 hours,\n provided that adequate sleeping facilities are\n furnished by the employer and the employee can\n usually enjoy an uninterrupted night's sleep.\n\n If the sleeping period is interrupted by a\n call to duty, the interruption will be counted\n as hours worked. If the employee cannot get\n at least 5 hours' sleep during the scheduled\n sleep period, the entire time should be\n treated as working time. The eight-hour\n sleeping period will be excluded from hours\n worked unless performance of work duties is\n required.\n\n If the Direct Support Professional does have\n to work during the sleep period, they should\n record their time worked on the daily service\n charts and notify their Program Manager of the\n interruption so that their electronic time\n sheet can be corrected.\n\n If anyone has any questions, please feel free\n to contact the Director of Human Resources.\n\nIt remains contested how often long-term staff must attend to the\n\nprogram clients during scheduled sleep time.\n\n Port Resources has chosen to compute its payroll\n\nworkweek from Sunday to Sunday, so each long-term-staff shift spans\n\ntwo payroll workweeks. This means that Port Resources pays long-\n\nterm staff for forty hours of work during their first payroll\n\nworkweek (Thursday to Saturday) and for fifty-six hours of work\n\n\n\n\non [section] 785.22 to support its sleep policy.\" Giguere I, 2018\nWL 1997754, at *9 n.12.\n\n\n - 5 -\n\fduring their second (Sunday to Thursday). Port Resources does not\n\npay its long-term staff for their fifty-six hours of sleep time\n\n(Thursday to Thursday).\n\n B.\n\n David Giguere, a former Port Resources employee, sued\n\nPort Resources, alleging that its sleep-time policy violated the\n\nFLSA; the Maine Wages and Medium of Payment Act (the Wages Act),\n\nMe. Stat. tit. 26, §§ 621-A, 626-A, 629; and the Maine Minimum\n\nWage Law, id. §§ 663, 664, 670.2\n\n The district court conditionally granted collective\n\naction status for the FLSA claim, and thirty individual employees\n\nbesides Giguere opted in. Giguere brought his Maine claims only\n\non his own behalf.3\n\n Both parties moved for summary judgment, which the\n\ndistrict court granted to Giguere and the other collective-action\n\nplaintiffs on the FLSA claim and to Giguere on his two Maine law\n\ncounts.4 Giguere I, 2018 WL 1997754, at *10. The district court\n\n\n\n 2 Giguere also brought, but then voluntarily withdrew, a\nclaim for alleged breach of contract and unjust enrichment.\n 3 To be more precise, Giguere at first sought class action\nstatus for his Maine law counts, but later voluntarily abandoned\nthat request.\n 4 The district court then held a bench trial to determine\nwhether Port Resources could establish a good-faith defense to\nliquidated damages under the FLSA. The district court found that\nPort Resources had acted in good faith and the parties stipulated\nto the back wages owed each plaintiff.\n\n\n - 6 -\n\fthen awarded Giguere treble damages under the Wages Act. Giguere\n\nII, 2018 WL 5268600, at *5.\n\n Both parties appealed.\n\n II.\n\n We review the district court's summary judgment rulings\n\nde novo. Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217,\n\n223 (1st Cir. 2013). And because the parties filed cross-motions\n\nfor summary judgment, we \"view each motion separately, drawing all\n\ninferences in favor of the nonmoving party.\" Fadili v. Deutsche\n\nBank Nat. Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014).\n\n A.\n\n Port Resources argues that the district court erred in\n\nconcluding that it had violated the FLSA by not compensating its\n\nlong-term staff for their sleep time. We find no such error, so\n\nwe affirm.\n\n We begin with background. The FLSA's usual rule is that\n\nan employer must pay an employee for all time the employee is\n\nrequired to spend at a worksite, even sleep time. See 29 C.F.R.\n\n§ 785.7 (\"The workweek ordinarily includes 'all the time during\n\nwhich an employee is necessarily required to be on the employer's\n\npremises, on duty or at a prescribed work place.'\" (quoting\n\nAnderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-91 (1946))).\n\nBut the Department of Labor's (DOL) regulations also provide that\n\n\n\n\n - 7 -\n\fif \"certain conditions\" are met, an employer may carve worksite\n\nsleep time out of an employee's hours worked. Id. § 785.20.5\n\n Port Resources relies on one such sleep-time regulation:\n\n29 C.F.R. § 785.23, which covers \"live-in\" employees. If such an\n\nemployee \"resides on his employer's premises on a permanent basis\n\nor for extended periods of time,\" he and the employer may enter\n\ninto \"any reasonable agreement\" about payment for sleep time. Id.\n\n No one claims this regulation is unambiguous. Aware of\n\nconfusion about the regulation, DOL interpreted the term \"extended\n\nperiods of time\" in a 1988 enforcement memorandum. That memorandum\n\nstated that an employee meets the extended-periods-of-time\n\nstandard when, as relevant here, he \"resides on the premises for\n\na period of at least 120 hours in a workweek.\" U.S. Dep't of\n\nLabor, Wage & Hour Div., Enforcement Policy, (June 30, 1988), 1988\n\nWL 614199, at *2 (emphasis added). The memorandum defined\n\n\"workweek\" as \"seven consecutive 24-hour periods,\" citing 29\n\nC.F.R. § 778.105, id., which provides that an employee's workweek\n\n\"need not coincide with the calendar week,\" but once the employer\n\nhas established when the workweek begins, the workweek's span\n\n\n\n 5 Section 785.20 states: \"Under certain conditions an\nemployee is considered to be working even though some of his time\nis spent in sleeping or in certain other activities.\" Though this\nmight be read to imply that sleep time is generally not counted as\nhours worked, context shows the opposite. In immediately following\nsections, DOL carefully delineates when an employer may exclude\nworksite sleep time from an employee's hours worked.\n\n\n - 8 -\n\f\"remains fixed regardless of the schedule of hours worked by [the\n\nemployee],\" 29 C.F.R. § 778.105.\n\n Port Resources concedes that it \"established\" a Sunday-\n\nto-Sunday workweek for payroll purposes. And it makes no attempt\n\nto show that its long-term staff reside on its premises for 120\n\nhours within that payroll workweek.\n\n Port Resources instead argues that DOL did not in its\n\nmemorandum intend to make the workweek the baseline for determining\n\nwhether an employee resided on the employer's premises for\n\n\"extended periods of time.\" This argument turns on the text of\n\nDOL's 1988 memorandum, so we quote that memorandum's key language\n\nin full:\n\n Under circumstances where an employee does not\n maintain his or her permanent residence on the\n premises and does not otherwise reside on the\n premises 7 days a week, [DOL's Wage and Hour\n Division (WH)] will consider an employee who\n sleeps in private quarters, in a homelike\n environment, to reside on the premises for an\n extended period of time within the meaning of\n [section] 785.23 if the employee resides on\n the premises for a period of at least 120 hours\n in a workweek.\n\n WH is refining and restating the minimum\n conditions required to meet this rule. An\n employee will be found to reside on the\n premises for extended periods of time if:\n\n (1) the employee is on duty at the group\n home and is compensated for at least\n eight hours in each of five consecutive\n 24-hour periods; and\n\n (2) the employee sleeps on the premises\n for all sleep periods between the\n\n\n - 9 -\n\f beginning and end of this 120-hour\n period.\n\n1988 WL 614199, at *2. Port Resources argues that after laying\n\nout its 120-hours-in-a-workweek standard, DOL then \"refin[ed] and\n\nrestat[ed] the minimum conditions required to meet this rule\"\n\nwithout any mention of the term \"workweek.\" Port Resources then\n\nattempts to bolster this argument with opinion letters,\n\ninterpretations, and bulletins spanning the three decades since\n\nDOL's 1988 memorandum.\n\n While the question is not free from doubt (and further\n\nclarification from DOL may be warranted6), we think Giguere has\n\nthe better reading of DOL's memorandum. First, nothing in the\n\nlanguage Port Resources relies on repudiates the DOL's statement\n\nthat the extended-periods-of-time standard requires \"reside[nce]\n\non the [employer's] premises for a period of at least 120 hours in\n\na workweek.\" The language Port Resources relies on follows\n\ndirectly after that statement. So Port Resources' argument is\n\nthat DOL announced a workweek-based rule in one breath and then\n\ndisclaimed it in the next. The better reading of the language\n\n\n\n\n 6 We note that neither party sought guidance from DOL on\nthis issue. See 29 C.F.R. § 785.1 (noting that \"[i]f doubt arises\"\nin \"determining what constitutes working time\" under DOL's\nregulations, the party in doubt should send \"inquiries\" to DOL).\nAnd neither party has asked that we seek guidance from DOL. So,\npreferring not to further delay resolution of this case, we will\nproceed without seeking such clarification.\n\n\n - 10 -\n\fPort Resources relies on is that it is what it says it is: a\n\nrefinement of \"this rule\" -- that is, DOL's workweek-based rule.\n\n Second, the 1988 memorandum has not been superseded. It\n\nremains the most comprehensive of DOL's analyses of section 785.23.\n\nAnd DOL's later documents do not deviate from its analysis; rather,\n\nthey continue to reference the 1988 memorandum. DOL has, as\n\nrecently as 2014, referred to the 1988 memorandum in interpreting\n\nsection 785.23. See U.S. Dep't of Labor, Wage & Hour Div.,\n\nAdministrator's Interpretation No. 2014-1 (Mar. 27, 2014), 2014 WL\n\n1276986 at *12 n.22.\n\n And third, Port Resources' argument requires us to\n\nassume that DOL did not \"consciously\" establish the workweek\n\nstandard. But DOL not only used the term \"workweek,\" it also noted\n\nthat \"workweek\" and several terms like it \"ha[d] caused some\n\ndifficulty.\" 1988 WL 614199, at *2. It then listed those terms\n\nand \"defined [them] for further guidance.\" Id. And its definition\n\nof \"workweek\" referred to an already promulgated regulation: 29\n\nC.F.R. § 778.105. This careful attention belies Port Resources'\n\nargument.\n\n We conclude that the better reading of DOL's memorandum\n\nis that the agency analyzes section 785.23 with reference to an\n\nemployer's workweek. The question then becomes one of deference.\n\nThe parties dispute whether the rubric of Auer v. Robbins, 519\n\nU.S. 452 (1997), or Skidmore v. Swift & Co., 323 U.S. 134 (1944),\n\n\n - 11 -\n\fapplies. We need not address this issue because, even were we to\n\nagree with Port Resources that Skidmore, not Auer, applies, we see\n\nno reason to depart from DOL's understanding of its own regulation.\n\nCf. Fawcett v. Citizens Bank, N.A., 919 F.3d 133, 138 (1st Cir.\n\n2019). DOL set forth its interpretation of section 785.23 in an\n\nenforcement memorandum. And as the Supreme Court has cautioned,\n\n\"[g]ood administration of the [FLSA] and good judicial\n\nadministration alike require that the standards of public\n\nenforcement and those for determining private rights shall be at\n\nvariance only where justified by very good reasons.\" Skidmore,\n\n323 U.S. at 140. Port Resources points to no such \"very good\n\nreasons\" here.\n\n Port Resources argues that a fixed workweek standard\n\ngoes against the principle that an employee's work schedule need\n\nnot coincide with his payroll workweek. But that principle does\n\nnot carry the day. The question is not whether Port Resources can\n\nstructure its employees' shifts to, for instance, minimize its\n\novertime obligations, but whether those employees reside on Port\n\nResources' premises for \"extended periods of time.\" And under the\n\nmost likely reading of DOL's interpretation, the employees do not.\n\n Port Resources' remaining argument is that implementing\n\na workweek standard is arbitrary. We think not. The workweek is\n\nthe \"basic unit\" of the FLSA. O'Brien v. Town of Agawam, 350 F.3d\n\n279, 298 (1st Cir. 2003); see 29 U.S.C. § 207(a)(1); cf. 29 C.F.R.\n\n\n - 12 -\n\f§ 776.4(a) (\"The workweek is to be taken as the standard in\n\ndetermining the applicability of the Act.\"). There is nothing\n\narbitrary about using the FLSA's \"basic unit\" of time in\n\ninterpreting the phrase \"extended periods of time.\"\n\n Measuring \"extended periods of time\" with reference to\n\nthe workweek \"established\" under section 778.105 also makes sense\n\nwithin DOL's regulatory scheme. The agency has instructed that\n\nthe FLSA \"takes a single workweek as its standard.\" 29 C.F.R.\n\n§ 778.104. From this we conclude that the workweek the employer\n\nhas chosen is the workweek the employer has chosen.7\n\n We are also mindful of the interpretive rule that\n\nambiguities in the exceptions to the FLSA's general rules should\n\nbe resolved in favor of employees. See Cash v. Cycle Craft Co.,\n\n508 F.3d 680, 683 (1st Cir. 2007) (noting that the FLSA's remedial\n\nnature \"'requires that [its] exemptions be narrowly construed\n\nagainst the employers seeking to assert them' and 'limited to those\n\nestablishments plainly and unmistakably within [the exemptions']\n\nterms and spirit.'\" (alterations in original) (quoting Reich v.\n\nJohn Alden Life Ins. Co., 126 F.3d 1, 7 (1st Cir. 1997))); cf.\n\n\n\n 7 Port Resources can set the start of its workweek to\nminimize its overtime obligations. See Abshire v. Redland Energy\nServs., LLC, 695 F.3d 792, 795-96 (8th Cir. 2012); Johnson v.\nHeckmann Water Res. (CVR), Inc., 758 F.3d 627, 633 (5th Cir. 2014).\nAnd it can set the start of its week to minimize its sleep-time-\npayment obligations. But, having made its choice, Port Resources\ncannot now complain that it is unfair to hold it to it.\n\n\n - 13 -\n\fO'Connor v. Oakhurst Dairy, 851 F.3d 69, 79 (1st Cir. 2017) (noting\n\na parallel \"default rule of construction under Maine law\"). The\n\nFLSA was designed to protect workers \"from 'the evil of overwork\n\nas well as underpay.'\" Barrentine v. Arkansas-Best Freight Sys.,\n\nInc., 450 U.S. 728, 739 (1981) (internal quotation marks omitted)\n\n(quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578\n\n(1942)). Section 785.23 advances that purpose by carefully\n\ndistinguishing between \"live-in\" employees, who are essentially at\n\nhome on the employer's premises, and nonresidential employees, who\n\nare not. And DOL's interpretation of that regulation, as we have\n\nconstrued it, provides a useful frame of reference -- the\n\nworkweek -- to analyze that distinction.\n\n Applying that interpretation, we hold that Port\n\nResources has not carried the burden necessary to invoke section\n\n785.23. We affirm the district court's finding that Port\n\nResources' sleep-time policy violated the FLSA.\n\n B.\n\n The remaining issues arise under Maine law and relate\n\nonly to the district court's damages award, not its liability\n\ndetermination.8 The district court held that Port Resources had\n\n\n\n 8 The district court found that \"Maine [wa]s likely to\nfollow federal law\" on sleep time. Giguere I, 2018 WL 1997754, at\n*10; see TerMorshuizen v. Spurwink Servs., Inc., Cum-18-288, 2019\nWL 2181252, at *3 (Me. May 21, 2019). So, because it had granted\nsummary judgment to Giguere on his FLSA claim, the district court\n\"f[ound] that summary judgment for Giguere [wa]s also appropriate\n\n\n - 14 -\n\fviolated both the Wages Act and the Minimum Wage Law. Giguere I,\n\n2018 WL 1997754, at *10. It awarded Giguere treble damages under\n\nthe Wages Act but did not also award him double damages under the\n\nMinimum Wage law, concluding that Maine's rule against double\n\nrecovery precluded the second, smaller damage award. Giguere II,\n\n2018 WL 5268600, at *4.\n\n Both parties argue that the district court erred:\n\nGiguere argues that he has a right to recover under both the Wages\n\nAct and the Minimum Wage law. And Port Resources argues that he\n\nis only entitled to recovery under the Minimum Wage Law. We reject\n\nboth arguments in turn.\n\n Maine law provides that a plaintiff may not receive two\n\ndamages awards for the same loss. Theriault v. Swan, 558 A.2d\n\n369, 372 (Me. 1989). A potential exception to this no-double-\n\nrecovery rule arises when the two damages awards serve different\n\npurposes; that is, when one is remedial and the other is punitive.\n\nSee, e.g., St. Luke's Cataract & Laser Inst., P.A. v. Sanderson,\n\n573 F.3d 1186, 1204 (11th Cir. 2009). Both parties agree that the\n\n\n\non [his] Maine law claims.\" Giguere I, 2018 WL 1997754, at *10.\nPort Resources says that if we reverse the district court's FLSA\njudgment we should overturn its conclusion that Port Resources\nalso violated Maine law. Giguere, in turn, argues that we can\naffirm the district court's judgment that Port Resources violated\nMaine law even if we reverse its judgment that Port Resources\nviolated the FLSA. Since we have affirmed the district court's\nFLSA determination, we affirm on the Maine law count without\naddressing either party's argument.\n\n\n - 15 -\n\fdamages for Port Resources' violations of the Minimum Wage Law are\n\nremedial, so the question on appeal is whether the penalties for\n\nviolating the Wages Act are punitive, so as to require two\n\npayments.\n\n The Maine Supreme Judicial Court has strongly suggested\n\nthat the Wages Act's purpose is remedial. See Bisbing v. Me. Med.\n\nCtr., 820 A.2d 582, 584-85 (Me. 2003) (awarding the plaintiff\n\nappellate attorneys' fees under the Wages Act, as the Court had\n\ndone \"under other remedial statutes,\" id. at 585, and referencing\n\nthe statute's \"broadly protective purpose,\" id. at 584). Maine\n\nWages Act violations entitle a plaintiff to unpaid wages plus \"an\n\nadditional amount equal to twice the amount of unpaid wages as\n\nliquidated damages.\" Me. Stat. tit. 26, § 626-A; see Cooper v.\n\nSpringfield Terminal Ry. Co., 635 A.2d 952, 955 (Me. 1993). In\n\nMaine, such statutory treble damages provisions are generally\n\nconsidered remedial rather than punitive in nature. Andrew M.\n\nHorton & Peggy L. McGehee, Maine Civil Remedies 77 & n.132 (4th\n\ned. 2004) (citing Michaud v. City of Bangor, 203 A.2d 687 (Me.\n\n1964)). So we conclude, as did the district court, that Maine\n\ncourts would likely view any damages for Port Resources' Wages Act\n\nviolation to be remedial. And because both of Giguere's available\n\ndamages awards had a remedial purpose, the district court properly\n\nawarded him only one.\n\n\n\n\n - 16 -\n\f Port Resources argues that the district court picked the\n\nwrong one. It argues that the district court should not have\n\nawarded Giguere treble damages under the Wages Act because nearly\n\nall Giguere's unpaid sleep hours were overtime. The Minimum Wage\n\nLaw grants the right to overtime pay, so Port Resources argues\n\nthat double damages under that law was the proper remedy.\n\n This argument rests on the canon against superfluity.\n\nMost Minimum Wage Law violations, Port Resources argues, will also\n\nviolate the Wages Act. And because the Wages Act provides the\n\ngreater remedy -- treble damages -- plaintiffs will always choose\n\nthat award. So to avoid making the Minimum Wage Law's double-\n\ndamages remedy superfluous, we should not allow recovery under the\n\nWages Act for overtime violations.\n\n There are at least two problems with this argument.\n\nFirst, Giguere is entitled to recovery under the Wages Act. So to\n\nhold that he cannot recover his due, we would have to create an\n\nexception to recovery under that Act. But the Wages Act provides\n\nthat any employer who violates its provisions \"is liable.\" Me.\n\nStat. tit. 26, § 626-A. It does not say \"is liable unless the\n\nunpaid wages are for overtime.\" We see no reason to depart from\n\nthe Wages Act's unambiguous language. See Gould v. A-1 Auto, Inc.,\n\n945 A.2d 1225, 1229 (Me. 2008).\n\n And second, the argument fails on its own terms. Under\n\nthe Wages Act, an employer cannot require, or even permit, an\n\n\n - 17 -\n\femployee \"to work without monetary compensation.\" Me. Stat. tit.\n\n26, § 629(1). The Minimum Wage Law, by contrast, provides that\n\n\"[a]n employer may not require an employee to work more than 40\n\nhours in any one week unless [1.5] times the regular hourly rate\n\nis paid for all hours actually worked in excess of 40 hours in\n\nthat week.\" Id. § 664(3). The two laws target different concerns:\n\nThe Wages Act provides a remedy for unpaid work, while the Minimum\n\nWage Law provides a remedy for underpaid work. And because this\n\nis the case, Port Resources' superfluity argument is meritless.\n\n The district court properly awarded Giguere treble\n\ndamages as a remedy for Port Resources' Wages Act violation.\n\n III.\n\n We affirm. Costs are awarded to Giguere.\n\n\n\n\n - 18 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: David GIGUERE, on His Own Behalf and on Behalf of All Others Similarly Situated, Plaintiff, Appellee/Cross-Appellant, Kellon Alexis; Sylvia Ouellette ; Linda Perry; Lee Southwick; Kimberly Farrell ; Mary Feeley ; Lindsay Gagne; Jerry Garcia; Crystal Jackman; Ryan Jarrell; Renee Jordan ; Christine Poore; Brie Gaia Reed; Neverly Ruda; Zu-Chyun Speaker; Renovat Baragengana; Robert Bissell; Theresa Bissell ; Long Cao ; Darren Chevrier; Kenneth Cole; Cynthia Cookingham; Susan Desjardins; John Farrell; Robert Brogden ; Debra Dow; Paige Harris ; Susan MacDonald; Eric Nkurunziza; Eulade Nkurunziza, Plaintiffs, v. PORT RESOURCES INC., Defendant, Appellant/Cross-Appellee.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNos. 18-2073\\n 18-2163\\n\\n DAVID GIGUERE, on his own behalf and on behalf of all others\\n similarly situated,\\n\\n Plaintiff, Appellee/Cross-Appellant,\\n\\n KELLON ALEXIS; SYLVIA OUELLETTE; LINDA PERRY; LEE SOUTHWICK;\\n KIMBERLY FARRELL; MARY FEELEY; LINDSAY GAGNE; JERRY GARCIA;\\n CRYSTAL JACKMAN; RYAN JARRELL; RENEE JORDAN; CHRISTINE POORE;\\n BRIE GAIA REED; NEVERLY RUDA; ZU-CHYUN SPEAKER;\\n RENOVAT BARAGENGANA; ROBERT BISSELL; THERESA BISSELL; LONG CAO;\\n DARREN CHEVRIER; KENNETH COLE; CYNTHIA COOKINGHAM;\\n SUSAN DESJARDINS; JOHN FARRELL; ROBERT BROGDEN; DEBRA DOW;\\n PAIGE HARRIS; SUSAN MACDONALD; ERIC NKURUNZIZA;\\n EULADE NKURUNZIZA,\\n\\n Plaintiffs,\\n\\n v.\\n\\n PORT RESOURCES INC.,\\n\\n Defendant, Appellant/Cross-Appellee.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. Nancy Torresen, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Timothy H. Norton, with whom Graydon G. Stevens and Kelly,\\nRemmel & Zimmerman were on brief, for Port Resources, Inc.\\n\\f Peter Mancuso, with whom Andrew Schmidt and Andrew Schmidt\\nLaw PLLC were on brief, for David Giguere.\\n\\n\\n June 19, 2019\\n\\f LYNCH, Circuit Judge. The Fair Labor Standards Act\\n\\n(FLSA), 29 U.S.C. § 201 et seq., sets federal minimum-wage,\\n\\nmaximum-hour, and overtime guarantees. When an employer fails to\\n\\nmeet these requirements, the FLSA gives employees a private right\\n\\nof action to recover their due. Id. § 216(b).\\n\\n These cross-appeals come from an action, brought as an\\n\\nFLSA collective action and as an individual action under analogous\\n\\nMaine labor laws, to recover what are alleged to be unpaid overtime\\n\\nwages. The employer, defendant Port Resources, disputes that such\\n\\nwages are owed. Under its sleep-time policy, Port Resources did\\n\\nnot pay employees like plaintiff David Giguere for eight hours\\n\\neach night, even though the employees were on duty during that\\n\\ntime.\\n\\n The district court found that this policy was unlawful,\\n\\nGiguere v. Port Res., Inc. (Giguere I), No. 16-CV-58-NT, 2018 WL\\n\\n1997754, at *10 (D. Me. Apr. 27, 2018), and so awarded back wages\\n\\nto the collective-action plaintiffs and treble damages to Giguere,\\n\\nGiguere v. Port Res., Inc. (Giguere II), No. 16-CV-58-NT, 2018 WL\\n\\n5268600, at *5 (D. Me. Oct. 23, 2018).\\n\\n Finding no error in the district court's carefully\\n\\nreasoned opinions, we affirm.\\n\\n\\n\\n\\n - 3 -\\n\\f I.\\n\\n A.\\n\\n Port Resources is a nonprofit organization that runs\\n\\ngroup homes (which it calls \\\"programs\\\") that provide housing and\\n\\nservices to adults with developmental disabilities and behavioral\\n\\nhealth challenges. It uses a long-term-staff model to care for\\n\\nprogram clients. Its long-term staff provide daily living skills\\n\\ndevelopment, administer medication, and assist with personal care\\n\\nand community integration. And, true to that name, long-term staff\\n\\nwork long shifts -- seven days on and seven days off, from Thursday\\n\\nto Thursday. One set of long-term staff alternates with another\\n\\nassigned to the same residence. Twenty Port Resources programs\\n\\nhave this setup, and eleven of those twenty also have \\\"overnight\\n\\nawake staff\\\" responsible for attending to clients during the night,\\n\\nas necessary.\\n\\n A long-term staff's weeklong shift includes four four-\\n\\nhour unpaid breaks and eight hours of nightly unpaid sleep time.\\n\\nThis sleep-time arrangement is governed by a written \\\"Sleep Time\\n\\nAgreement,\\\" which provides in full:\\n\\n This confirms the agreement between Port\\n Resources and a Direct Support Professional\\n who may be assigned to be on duty for one or\\n more twenty-four (24) [hour] shifts.\\n\\n Under wage and hour guidelines, 29 C.F.R.\\n sections 785.221 and 785.23, where an employee\\n\\n 1 Though Port Resources cites section 785.22, in this\\nlitigation it has \\\"affirmatively conceded that it is not relying\\n\\n\\n - 4 -\\n\\f is required to be on duty for 24 hours or more,\\n the employer and the employee may agree to\\n exclude from hours worked a bona fide meal\\n period and a bona fide regularly scheduled\\n sleeping period of not more than 8 hours,\\n provided that adequate sleeping facilities are\\n furnished by the employer and the employee can\\n usually enjoy an uninterrupted night's sleep.\\n\\n If the sleeping period is interrupted by a\\n call to duty, the interruption will be counted\\n as hours worked. If the employee cannot get\\n at least 5 hours' sleep during the scheduled\\n sleep period, the entire time should be\\n treated as working time. The eight-hour\\n sleeping period will be excluded from hours\\n worked unless performance of work duties is\\n required.\\n\\n If the Direct Support Professional does have\\n to work during the sleep period, they should\\n record their time worked on the daily service\\n charts and notify their Program Manager of the\\n interruption so that their electronic time\\n sheet can be corrected.\\n\\n If anyone has any questions, please feel free\\n to contact the Director of Human Resources.\\n\\nIt remains contested how often long-term staff must attend to the\\n\\nprogram clients during scheduled sleep time.\\n\\n Port Resources has chosen to compute its payroll\\n\\nworkweek from Sunday to Sunday, so each long-term-staff shift spans\\n\\ntwo payroll workweeks. This means that Port Resources pays long-\\n\\nterm staff for forty hours of work during their first payroll\\n\\nworkweek (Thursday to Saturday) and for fifty-six hours of work\\n\\n\\n\\n\\non [section] 785.22 to support its sleep policy.\\\" Giguere I, 2018\\nWL 1997754, at *9 n.12.\\n\\n\\n - 5 -\\n\\fduring their second (Sunday to Thursday). Port Resources does not\\n\\npay its long-term staff for their fifty-six hours of sleep time\\n\\n(Thursday to Thursday).\\n\\n B.\\n\\n David Giguere, a former Port Resources employee, sued\\n\\nPort Resources, alleging that its sleep-time policy violated the\\n\\nFLSA; the Maine Wages and Medium of Payment Act (the Wages Act),\\n\\nMe. Stat. tit. 26, §§ 621-A, 626-A, 629; and the Maine Minimum\\n\\nWage Law, id. §§ 663, 664, 670.2\\n\\n The district court conditionally granted collective\\n\\naction status for the FLSA claim, and thirty individual employees\\n\\nbesides Giguere opted in. Giguere brought his Maine claims only\\n\\non his own behalf.3\\n\\n Both parties moved for summary judgment, which the\\n\\ndistrict court granted to Giguere and the other collective-action\\n\\nplaintiffs on the FLSA claim and to Giguere on his two Maine law\\n\\ncounts.4 Giguere I, 2018 WL 1997754, at *10. The district court\\n\\n\\n\\n 2 Giguere also brought, but then voluntarily withdrew, a\\nclaim for alleged breach of contract and unjust enrichment.\\n 3 To be more precise, Giguere at first sought class action\\nstatus for his Maine law counts, but later voluntarily abandoned\\nthat request.\\n 4 The district court then held a bench trial to determine\\nwhether Port Resources could establish a good-faith defense to\\nliquidated damages under the FLSA. The district court found that\\nPort Resources had acted in good faith and the parties stipulated\\nto the back wages owed each plaintiff.\\n\\n\\n - 6 -\\n\\fthen awarded Giguere treble damages under the Wages Act. Giguere\\n\\nII, 2018 WL 5268600, at *5.\\n\\n Both parties appealed.\\n\\n II.\\n\\n We review the district court's summary judgment rulings\\n\\nde novo. Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217,\\n\\n223 (1st Cir. 2013). And because the parties filed cross-motions\\n\\nfor summary judgment, we \\\"view each motion separately, drawing all\\n\\ninferences in favor of the nonmoving party.\\\" Fadili v. Deutsche\\n\\nBank Nat. Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014).\\n\\n A.\\n\\n Port Resources argues that the district court erred in\\n\\nconcluding that it had violated the FLSA by not compensating its\\n\\nlong-term staff for their sleep time. We find no such error, so\\n\\nwe affirm.\\n\\n We begin with background. The FLSA's usual rule is that\\n\\nan employer must pay an employee for all time the employee is\\n\\nrequired to spend at a worksite, even sleep time. See 29 C.F.R.\\n\\n§ 785.7 (\\\"The workweek ordinarily includes 'all the time during\\n\\nwhich an employee is necessarily required to be on the employer's\\n\\npremises, on duty or at a prescribed work place.'\\\" (quoting\\n\\nAnderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-91 (1946))).\\n\\nBut the Department of Labor's (DOL) regulations also provide that\\n\\n\\n\\n\\n - 7 -\\n\\fif \\\"certain conditions\\\" are met, an employer may carve worksite\\n\\nsleep time out of an employee's hours worked. Id. § 785.20.5\\n\\n Port Resources relies on one such sleep-time regulation:\\n\\n29 C.F.R. § 785.23, which covers \\\"live-in\\\" employees. If such an\\n\\nemployee \\\"resides on his employer's premises on a permanent basis\\n\\nor for extended periods of time,\\\" he and the employer may enter\\n\\ninto \\\"any reasonable agreement\\\" about payment for sleep time. Id.\\n\\n No one claims this regulation is unambiguous. Aware of\\n\\nconfusion about the regulation, DOL interpreted the term \\\"extended\\n\\nperiods of time\\\" in a 1988 enforcement memorandum. That memorandum\\n\\nstated that an employee meets the extended-periods-of-time\\n\\nstandard when, as relevant here, he \\\"resides on the premises for\\n\\na period of at least 120 hours in a workweek.\\\" U.S. Dep't of\\n\\nLabor, Wage & Hour Div., Enforcement Policy, (June 30, 1988), 1988\\n\\nWL 614199, at *2 (emphasis added). The memorandum defined\\n\\n\\\"workweek\\\" as \\\"seven consecutive 24-hour periods,\\\" citing 29\\n\\nC.F.R. § 778.105, id., which provides that an employee's workweek\\n\\n\\\"need not coincide with the calendar week,\\\" but once the employer\\n\\nhas established when the workweek begins, the workweek's span\\n\\n\\n\\n 5 Section 785.20 states: \\\"Under certain conditions an\\nemployee is considered to be working even though some of his time\\nis spent in sleeping or in certain other activities.\\\" Though this\\nmight be read to imply that sleep time is generally not counted as\\nhours worked, context shows the opposite. In immediately following\\nsections, DOL carefully delineates when an employer may exclude\\nworksite sleep time from an employee's hours worked.\\n\\n\\n - 8 -\\n\\f\\\"remains fixed regardless of the schedule of hours worked by [the\\n\\nemployee],\\\" 29 C.F.R. § 778.105.\\n\\n Port Resources concedes that it \\\"established\\\" a Sunday-\\n\\nto-Sunday workweek for payroll purposes. And it makes no attempt\\n\\nto show that its long-term staff reside on its premises for 120\\n\\nhours within that payroll workweek.\\n\\n Port Resources instead argues that DOL did not in its\\n\\nmemorandum intend to make the workweek the baseline for determining\\n\\nwhether an employee resided on the employer's premises for\\n\\n\\\"extended periods of time.\\\" This argument turns on the text of\\n\\nDOL's 1988 memorandum, so we quote that memorandum's key language\\n\\nin full:\\n\\n Under circumstances where an employee does not\\n maintain his or her permanent residence on the\\n premises and does not otherwise reside on the\\n premises 7 days a week, [DOL's Wage and Hour\\n Division (WH)] will consider an employee who\\n sleeps in private quarters, in a homelike\\n environment, to reside on the premises for an\\n extended period of time within the meaning of\\n [section] 785.23 if the employee resides on\\n the premises for a period of at least 120 hours\\n in a workweek.\\n\\n WH is refining and restating the minimum\\n conditions required to meet this rule. An\\n employee will be found to reside on the\\n premises for extended periods of time if:\\n\\n (1) the employee is on duty at the group\\n home and is compensated for at least\\n eight hours in each of five consecutive\\n 24-hour periods; and\\n\\n (2) the employee sleeps on the premises\\n for all sleep periods between the\\n\\n\\n - 9 -\\n\\f beginning and end of this 120-hour\\n period.\\n\\n1988 WL 614199, at *2. Port Resources argues that after laying\\n\\nout its 120-hours-in-a-workweek standard, DOL then \\\"refin[ed] and\\n\\nrestat[ed] the minimum conditions required to meet this rule\\\"\\n\\nwithout any mention of the term \\\"workweek.\\\" Port Resources then\\n\\nattempts to bolster this argument with opinion letters,\\n\\ninterpretations, and bulletins spanning the three decades since\\n\\nDOL's 1988 memorandum.\\n\\n While the question is not free from doubt (and further\\n\\nclarification from DOL may be warranted6), we think Giguere has\\n\\nthe better reading of DOL's memorandum. First, nothing in the\\n\\nlanguage Port Resources relies on repudiates the DOL's statement\\n\\nthat the extended-periods-of-time standard requires \\\"reside[nce]\\n\\non the [employer's] premises for a period of at least 120 hours in\\n\\na workweek.\\\" The language Port Resources relies on follows\\n\\ndirectly after that statement. So Port Resources' argument is\\n\\nthat DOL announced a workweek-based rule in one breath and then\\n\\ndisclaimed it in the next. The better reading of the language\\n\\n\\n\\n\\n 6 We note that neither party sought guidance from DOL on\\nthis issue. See 29 C.F.R. § 785.1 (noting that \\\"[i]f doubt arises\\\"\\nin \\\"determining what constitutes working time\\\" under DOL's\\nregulations, the party in doubt should send \\\"inquiries\\\" to DOL).\\nAnd neither party has asked that we seek guidance from DOL. So,\\npreferring not to further delay resolution of this case, we will\\nproceed without seeking such clarification.\\n\\n\\n - 10 -\\n\\fPort Resources relies on is that it is what it says it is: a\\n\\nrefinement of \\\"this rule\\\" -- that is, DOL's workweek-based rule.\\n\\n Second, the 1988 memorandum has not been superseded. It\\n\\nremains the most comprehensive of DOL's analyses of section 785.23.\\n\\nAnd DOL's later documents do not deviate from its analysis; rather,\\n\\nthey continue to reference the 1988 memorandum. DOL has, as\\n\\nrecently as 2014, referred to the 1988 memorandum in interpreting\\n\\nsection 785.23. See U.S. Dep't of Labor, Wage & Hour Div.,\\n\\nAdministrator's Interpretation No. 2014-1 (Mar. 27, 2014), 2014 WL\\n\\n1276986 at *12 n.22.\\n\\n And third, Port Resources' argument requires us to\\n\\nassume that DOL did not \\\"consciously\\\" establish the workweek\\n\\nstandard. But DOL not only used the term \\\"workweek,\\\" it also noted\\n\\nthat \\\"workweek\\\" and several terms like it \\\"ha[d] caused some\\n\\ndifficulty.\\\" 1988 WL 614199, at *2. It then listed those terms\\n\\nand \\\"defined [them] for further guidance.\\\" Id. And its definition\\n\\nof \\\"workweek\\\" referred to an already promulgated regulation: 29\\n\\nC.F.R. § 778.105. This careful attention belies Port Resources'\\n\\nargument.\\n\\n We conclude that the better reading of DOL's memorandum\\n\\nis that the agency analyzes section 785.23 with reference to an\\n\\nemployer's workweek. The question then becomes one of deference.\\n\\nThe parties dispute whether the rubric of Auer v. Robbins, 519\\n\\nU.S. 452 (1997), or Skidmore v. Swift & Co., 323 U.S. 134 (1944),\\n\\n\\n - 11 -\\n\\fapplies. We need not address this issue because, even were we to\\n\\nagree with Port Resources that Skidmore, not Auer, applies, we see\\n\\nno reason to depart from DOL's understanding of its own regulation.\\n\\nCf. Fawcett v. Citizens Bank, N.A., 919 F.3d 133, 138 (1st Cir.\\n\\n2019). DOL set forth its interpretation of section 785.23 in an\\n\\nenforcement memorandum. And as the Supreme Court has cautioned,\\n\\n\\\"[g]ood administration of the [FLSA] and good judicial\\n\\nadministration alike require that the standards of public\\n\\nenforcement and those for determining private rights shall be at\\n\\nvariance only where justified by very good reasons.\\\" Skidmore,\\n\\n323 U.S. at 140. Port Resources points to no such \\\"very good\\n\\nreasons\\\" here.\\n\\n Port Resources argues that a fixed workweek standard\\n\\ngoes against the principle that an employee's work schedule need\\n\\nnot coincide with his payroll workweek. But that principle does\\n\\nnot carry the day. The question is not whether Port Resources can\\n\\nstructure its employees' shifts to, for instance, minimize its\\n\\novertime obligations, but whether those employees reside on Port\\n\\nResources' premises for \\\"extended periods of time.\\\" And under the\\n\\nmost likely reading of DOL's interpretation, the employees do not.\\n\\n Port Resources' remaining argument is that implementing\\n\\na workweek standard is arbitrary. We think not. The workweek is\\n\\nthe \\\"basic unit\\\" of the FLSA. O'Brien v. Town of Agawam, 350 F.3d\\n\\n279, 298 (1st Cir. 2003); see 29 U.S.C. § 207(a)(1); cf. 29 C.F.R.\\n\\n\\n - 12 -\\n\\f§ 776.4(a) (\\\"The workweek is to be taken as the standard in\\n\\ndetermining the applicability of the Act.\\\"). There is nothing\\n\\narbitrary about using the FLSA's \\\"basic unit\\\" of time in\\n\\ninterpreting the phrase \\\"extended periods of time.\\\"\\n\\n Measuring \\\"extended periods of time\\\" with reference to\\n\\nthe workweek \\\"established\\\" under section 778.105 also makes sense\\n\\nwithin DOL's regulatory scheme. The agency has instructed that\\n\\nthe FLSA \\\"takes a single workweek as its standard.\\\" 29 C.F.R.\\n\\n§ 778.104. From this we conclude that the workweek the employer\\n\\nhas chosen is the workweek the employer has chosen.7\\n\\n We are also mindful of the interpretive rule that\\n\\nambiguities in the exceptions to the FLSA's general rules should\\n\\nbe resolved in favor of employees. See Cash v. Cycle Craft Co.,\\n\\n508 F.3d 680, 683 (1st Cir. 2007) (noting that the FLSA's remedial\\n\\nnature \\\"'requires that [its] exemptions be narrowly construed\\n\\nagainst the employers seeking to assert them' and 'limited to those\\n\\nestablishments plainly and unmistakably within [the exemptions']\\n\\nterms and spirit.'\\\" (alterations in original) (quoting Reich v.\\n\\nJohn Alden Life Ins. Co., 126 F.3d 1, 7 (1st Cir. 1997))); cf.\\n\\n\\n\\n 7 Port Resources can set the start of its workweek to\\nminimize its overtime obligations. See Abshire v. Redland Energy\\nServs., LLC, 695 F.3d 792, 795-96 (8th Cir. 2012); Johnson v.\\nHeckmann Water Res. (CVR), Inc., 758 F.3d 627, 633 (5th Cir. 2014).\\nAnd it can set the start of its week to minimize its sleep-time-\\npayment obligations. But, having made its choice, Port Resources\\ncannot now complain that it is unfair to hold it to it.\\n\\n\\n - 13 -\\n\\fO'Connor v. Oakhurst Dairy, 851 F.3d 69, 79 (1st Cir. 2017) (noting\\n\\na parallel \\\"default rule of construction under Maine law\\\"). The\\n\\nFLSA was designed to protect workers \\\"from 'the evil of overwork\\n\\nas well as underpay.'\\\" Barrentine v. Arkansas-Best Freight Sys.,\\n\\nInc., 450 U.S. 728, 739 (1981) (internal quotation marks omitted)\\n\\n(quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578\\n\\n(1942)). Section 785.23 advances that purpose by carefully\\n\\ndistinguishing between \\\"live-in\\\" employees, who are essentially at\\n\\nhome on the employer's premises, and nonresidential employees, who\\n\\nare not. And DOL's interpretation of that regulation, as we have\\n\\nconstrued it, provides a useful frame of reference -- the\\n\\nworkweek -- to analyze that distinction.\\n\\n Applying that interpretation, we hold that Port\\n\\nResources has not carried the burden necessary to invoke section\\n\\n785.23. We affirm the district court's finding that Port\\n\\nResources' sleep-time policy violated the FLSA.\\n\\n B.\\n\\n The remaining issues arise under Maine law and relate\\n\\nonly to the district court's damages award, not its liability\\n\\ndetermination.8 The district court held that Port Resources had\\n\\n\\n\\n 8 The district court found that \\\"Maine [wa]s likely to\\nfollow federal law\\\" on sleep time. Giguere I, 2018 WL 1997754, at\\n*10; see TerMorshuizen v. Spurwink Servs., Inc., Cum-18-288, 2019\\nWL 2181252, at *3 (Me. May 21, 2019). So, because it had granted\\nsummary judgment to Giguere on his FLSA claim, the district court\\n\\\"f[ound] that summary judgment for Giguere [wa]s also appropriate\\n\\n\\n - 14 -\\n\\fviolated both the Wages Act and the Minimum Wage Law. Giguere I,\\n\\n2018 WL 1997754, at *10. It awarded Giguere treble damages under\\n\\nthe Wages Act but did not also award him double damages under the\\n\\nMinimum Wage law, concluding that Maine's rule against double\\n\\nrecovery precluded the second, smaller damage award. Giguere II,\\n\\n2018 WL 5268600, at *4.\\n\\n Both parties argue that the district court erred:\\n\\nGiguere argues that he has a right to recover under both the Wages\\n\\nAct and the Minimum Wage law. And Port Resources argues that he\\n\\nis only entitled to recovery under the Minimum Wage Law. We reject\\n\\nboth arguments in turn.\\n\\n Maine law provides that a plaintiff may not receive two\\n\\ndamages awards for the same loss. Theriault v. Swan, 558 A.2d\\n\\n369, 372 (Me. 1989). A potential exception to this no-double-\\n\\nrecovery rule arises when the two damages awards serve different\\n\\npurposes; that is, when one is remedial and the other is punitive.\\n\\nSee, e.g., St. Luke's Cataract & Laser Inst., P.A. v. Sanderson,\\n\\n573 F.3d 1186, 1204 (11th Cir. 2009). Both parties agree that the\\n\\n\\n\\non [his] Maine law claims.\\\" Giguere I, 2018 WL 1997754, at *10.\\nPort Resources says that if we reverse the district court's FLSA\\njudgment we should overturn its conclusion that Port Resources\\nalso violated Maine law. Giguere, in turn, argues that we can\\naffirm the district court's judgment that Port Resources violated\\nMaine law even if we reverse its judgment that Port Resources\\nviolated the FLSA. Since we have affirmed the district court's\\nFLSA determination, we affirm on the Maine law count without\\naddressing either party's argument.\\n\\n\\n - 15 -\\n\\fdamages for Port Resources' violations of the Minimum Wage Law are\\n\\nremedial, so the question on appeal is whether the penalties for\\n\\nviolating the Wages Act are punitive, so as to require two\\n\\npayments.\\n\\n The Maine Supreme Judicial Court has strongly suggested\\n\\nthat the Wages Act's purpose is remedial. See Bisbing v. Me. Med.\\n\\nCtr., 820 A.2d 582, 584-85 (Me. 2003) (awarding the plaintiff\\n\\nappellate attorneys' fees under the Wages Act, as the Court had\\n\\ndone \\\"under other remedial statutes,\\\" id. at 585, and referencing\\n\\nthe statute's \\\"broadly protective purpose,\\\" id. at 584). Maine\\n\\nWages Act violations entitle a plaintiff to unpaid wages plus \\\"an\\n\\nadditional amount equal to twice the amount of unpaid wages as\\n\\nliquidated damages.\\\" Me. Stat. tit. 26, § 626-A; see Cooper v.\\n\\nSpringfield Terminal Ry. Co., 635 A.2d 952, 955 (Me. 1993). In\\n\\nMaine, such statutory treble damages provisions are generally\\n\\nconsidered remedial rather than punitive in nature. Andrew M.\\n\\nHorton & Peggy L. McGehee, Maine Civil Remedies 77 & n.132 (4th\\n\\ned. 2004) (citing Michaud v. City of Bangor, 203 A.2d 687 (Me.\\n\\n1964)). So we conclude, as did the district court, that Maine\\n\\ncourts would likely view any damages for Port Resources' Wages Act\\n\\nviolation to be remedial. And because both of Giguere's available\\n\\ndamages awards had a remedial purpose, the district court properly\\n\\nawarded him only one.\\n\\n\\n\\n\\n - 16 -\\n\\f Port Resources argues that the district court picked the\\n\\nwrong one. It argues that the district court should not have\\n\\nawarded Giguere treble damages under the Wages Act because nearly\\n\\nall Giguere's unpaid sleep hours were overtime. The Minimum Wage\\n\\nLaw grants the right to overtime pay, so Port Resources argues\\n\\nthat double damages under that law was the proper remedy.\\n\\n This argument rests on the canon against superfluity.\\n\\nMost Minimum Wage Law violations, Port Resources argues, will also\\n\\nviolate the Wages Act. And because the Wages Act provides the\\n\\ngreater remedy -- treble damages -- plaintiffs will always choose\\n\\nthat award. So to avoid making the Minimum Wage Law's double-\\n\\ndamages remedy superfluous, we should not allow recovery under the\\n\\nWages Act for overtime violations.\\n\\n There are at least two problems with this argument.\\n\\nFirst, Giguere is entitled to recovery under the Wages Act. So to\\n\\nhold that he cannot recover his due, we would have to create an\\n\\nexception to recovery under that Act. But the Wages Act provides\\n\\nthat any employer who violates its provisions \\\"is liable.\\\" Me.\\n\\nStat. tit. 26, § 626-A. It does not say \\\"is liable unless the\\n\\nunpaid wages are for overtime.\\\" We see no reason to depart from\\n\\nthe Wages Act's unambiguous language. See Gould v. A-1 Auto, Inc.,\\n\\n945 A.2d 1225, 1229 (Me. 2008).\\n\\n And second, the argument fails on its own terms. Under\\n\\nthe Wages Act, an employer cannot require, or even permit, an\\n\\n\\n - 17 -\\n\\femployee \\\"to work without monetary compensation.\\\" Me. Stat. tit.\\n\\n26, § 629(1). The Minimum Wage Law, by contrast, provides that\\n\\n\\\"[a]n employer may not require an employee to work more than 40\\n\\nhours in any one week unless [1.5] times the regular hourly rate\\n\\nis paid for all hours actually worked in excess of 40 hours in\\n\\nthat week.\\\" Id. § 664(3). The two laws target different concerns:\\n\\nThe Wages Act provides a remedy for unpaid work, while the Minimum\\n\\nWage Law provides a remedy for underpaid work. And because this\\n\\nis the case, Port Resources' superfluity argument is meritless.\\n\\n The district court properly awarded Giguere treble\\n\\ndamages as a remedy for Port Resources' Wages Act violation.\\n\\n III.\\n\\n We affirm. Costs are awarded to Giguere.\\n\\n\\n\\n\\n - 18 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2379,"cells":{"id":{"kind":"number","value":4631290,"string":"4,631,290"},"name":{"kind":"string","value":"Mark W. EVES, Plaintiff, Appellant, v. Paul R. LEPAGE, Defendant, Appellee."},"name_abbreviation":{"kind":"string","value":"Eves v. LePage"},"decision_date":{"kind":"string","value":"2019-06-19"},"docket_number":{"kind":"string","value":"16-1492P2"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before Howard, Chief Judge, Torruella, Stahl, Lynch, Thompson, Kayatta, and Barron, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"Judge Kayatta is recused and did not participate in\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\nNo. 16-1492\\n\\n MARK W. EVES,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n PAUL R. LEPAGE,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n [Hon. George Z. Singal, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Torruella, Stahl, Lynch, Thompson, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n David G. Webbert, with whom Carol J. Garvan and Johnson,\\nWebbert & Young, LLP were on brief, for appellant.\\n Patrick Strawbridge, with whom Bryan K. Weir, Caroline A.\\nCook, and Consovoy McCarthy Park PLLC were on brief, for appellee.\\n\\n\\n Opinion En Banc\\n\\n\\n\\n June 19, 2019\\n\\n\\n\\n\\n \\n Judge Kayatta is recused and did not participate in\\nconsideration of this matter.\\n\\n LYNCH, Circuit Judge. This court took this case en\\n\\nbanc, which then caused the withdrawal of the panel opinion, Eves\\n\\nv. LePage, 842 F.3d 133 (1st Cir. 2016), while we reconsidered the\\n\\ncase. A divided panel there had affirmed the district court's\\n\\ndismissal of this First Amendment retaliation suit brought by the\\n\\nthen-Speaker of Maine's House of Representatives, Mark Eves,\\n\\nagainst the then-Governor of Maine, Paul LePage.1 Eves alleged\\n\\nthat, while governor, LePage leveraged discretionary state\\n\\nfunding, in a yet unpassed state budget, to coerce an organization,\\n\\nGood Will-Hinckley (\\\"GWH\\\"), to terminate Eves's upcoming\\n\\nemployment as its President.\\n\\n In his en banc petition, Eves has narrowed his legal\\n\\nclaims by dropping all damages claims for the alleged violation of\\n\\nhis free speech rights by LePage. Eves continues to pursue damages\\n\\nagainst LePage for his claim of political affiliation\\n\\ndiscrimination, which is now the only damages claim before us.\\n\\n The en banc court holds that LePage, on these unique\\n\\nfacts, is entitled to qualified immunity because a reasonable\\n\\ngovernor in LePage's situation could have believed Eves's position\\n\\nas the new President of GWH to be a policymaking position for which\\n\\npolitical affiliation was relevant. We do not reach LePage's\\n\\n\\n\\n\\n 1 LePage left office on January 2, 2019, and Eves left\\noffice on December 2, 2016. We nonetheless generally refer to\\nthem as Governor LePage and Speaker Eves.\\n\\n\\n - 2 -\\n\\narguments that he is also entitled to immunity on other grounds.\\n\\nWe also reinstate in part our prior panel opinion and affirm the\\n\\ndismissal of this action.\\n\\n I.\\n\\n Background\\n\\n The qualified immunity issues presented in this case are\\n\\nultimately issues of law, which receive de novo review. Elder v.\\n\\nHolloway, 510 U.S. 510, 516 (1994). Like the district court, we\\n\\nassume the truth of the complaint's well-pleaded facts and draw\\n\\nall reasonable inferences in Eves's favor.2 See Ashcroft v. Iqbal,\\n\\n556 U.S. 662, 678-79 (2009); Feliciano-Hernández v. Pereira-\\n\\nCastillo, 663 F.3d 527, 532 (1st Cir. 2011) (quoting New York v.\\n\\nAmgen Inc., 652 F.3d 103, 109 (1st Cir. 2011)).\\n\\nA. Maine's Government and Budget Process\\n\\n We begin with background information on Maine law as of\\n\\nJune 2015, the time of the events in this case, and other facts as\\n\\nfound by the district court.\\n\\n\\n\\n\\n 2 We consider Eves's Second Amended complaint (\\\"the\\ncomplaint\\\"), documents annexed to it, materials fairly\\nincorporated within the complaint, and Maine state law, which is\\nsubject to judicial notice. See Rodi v. S. New Eng. Sch. of Law,\\n389 F.3d 5, 12 (1st Cir. 2004). We do not consider materials not\\nin the complaint, which the district court held could not be\\nproperly considered. Eves has not appealed from that portion of\\nthe district court's decision and has waived any argument on the\\nissue.\\n\\n\\n - 3 -\\n\\n Serving in the Maine Legislature is not a full-time job\\n\\nfor most representatives. The legislature typically sits twice\\n\\nin each session: once from December to June in year one, then again\\n\\nfrom January to April in year two. See Me. Rev. Stat. Ann.\\n\\n(\\\"M.R.S.A.\\\") tit. 3, § 2. A legislator's salary was $24,056,\\n\\nspread over the two years, plus a $38 per diem, when the\\n\\nlegislature was active, \\\"for housing or mileage and tolls.\\\" Eves\\n\\nv. LePage, No. 1:15-cv-300, 2016 WL 1948869, at *2 (D. Me. May 3,\\n\\n2016). Most legislators have at least one other source of income,\\n\\noften in the private sector. Id. In fact, \\\"[n]early all\\n\\nlegislators depend on a career outside of the State House to\\n\\nprovide for their families.\\\" Id. at *5 (relaying statement by\\n\\nMaine Senate President Mike Thibodeau).\\n\\n Maine's biennial budget process starts when the\\n\\nDepartment of Administrative and Financial Services \\\"prepare[s]\\n\\nand submit[s] . . . a state budget document\\\" to the governor,\\n\\nhaving considered submissions from various agencies and policy\\n\\ncommittees. M.R.S.A. tit. 5, § 1662. The governor then reviews\\n\\nthe draft budget, alters it, and sends it to the legislature before\\n\\nthe statutory deadline \\\"in January of the first regular legislative\\n\\nsession.\\\" Id. § 1666. The legislature must \\\"enact a budget no\\n\\nlater than 30 days prior to the date of adjournment prescribed\\\" by\\n\\nlaw. Id. § 1666-A. The legislature's proposed budget then\\n\\nreturns to the governor, who has line-item veto power, permitting\\n\\n\\n - 4 -\\n\\nhim to reduce \\\"any dollar amount\\\" in the budget. Me. Const. art.\\n\\nIV, pt. 3, § 2-A. The legislature can override any such line-item\\n\\nvetoes with a simple majority of both the House and the Senate.\\n\\nId. The governor can also veto the entire budget, like any other\\n\\npiece of legislation, in which case a two-thirds majority of both\\n\\nthe House and Senate is necessary to override the veto. Id. art.\\n\\nIV, pt. 3, § 2.\\n\\n The events in this case, which occurred mostly in June\\n\\n2015, arose in the midst of the biennial budget process and\\n\\ninvolved serious political conflict between Governor LePage and\\n\\nthe legislature. The complaint sets forth reports from others\\n\\nabout statements LePage made about Speaker Eves. Those\\n\\nstatements, which are at the heart of this case, occurred on June\\n\\n5, June 8, and June 9, before the legislature had passed any\\n\\nbudget. The complaint also sets forth allegations about later\\n\\nstatements by LePage on June 29, July 7, and July 30 as to his\\n\\nreasons for his actions.\\n\\n In a press conference on May 29, 2015, LePage stated\\n\\nthat he planned to veto \\\"every bill sponsored by a Democrat\\\" for\\n\\nthe rest of his term in office \\\"unless the Legislature agreed to\\n\\nsupport his plan to have a referendum vote on eliminating Maine's\\n\\nincome tax.\\\" Eves, 2016 WL 1948869, at *4. LePage did, in fact,\\n\\nveto ten bills on June 8, 2015, stating that he had done so purely\\n\\nbecause of their Democratic sponsorship.\\n\\n\\n - 5 -\\n\\n After the legislature passed a budget on June 17, 2015,\\n\\nLePage issued sixty-four line-item vetoes, each of which the\\n\\nlegislature overrode on June 18 and 19, 2015. On June 29, 2015,\\n\\nLePage vetoed the entire budget. The legislature also overrode\\n\\nthat veto on June 30, enacting the budget for fiscal years 2016\\n\\nand 2017 into law. The enacted budget included discretionary\\n\\nfunding for GWH, which was disbursed to GWH after Speaker Eves's\\n\\ncontract with GWH was terminated.\\n\\nB. Good Will-Hinckley, The Center of Excellence for At-risk\\n Students (\\\"the Center\\\"), and The Maine Academy of Natural\\n Sciences (\\\"MeANS\\\")\\n\\n GWH is a nonprofit charitable organization, which serves\\n\\na public purpose, located in Fairfield, Maine. The nonprofit aims\\n\\nto provide services to at-risk children throughout the state.\\n\\nFounded in 1889 as a \\\"farm, school and home for needy boys,\\\" GWH\\n\\nnow has a broader mission and a portfolio encompassing a \\\"college\\n\\nstep-up program,\\\" a \\\"Learning Center for youth with emotional or\\n\\nbehavioral challenges,\\\" a nutrition program, a library, and a\\n\\nmuseum. Id. at *2. The organization has long depended on both\\n\\nprivate donations and government grants.\\n\\n GWH was designated by the Maine Legislature in 2009 \\\"to\\n\\nserve as the nonprofit charitable corporation with a public purpose\\n\\nto implement the Center of Excellence for At-risk Students,\\\" a\\n\\nstatutorily-established public entity. Id. at *3; see 2009 Me.\\n\\nLegis. Serv. Ch. 296 (West) (codified at M.R.S.A. tit. 20-A,\\n\\n\\n - 6 -\\n\\n§§ 6951-54). The legislature gave the governor discretion to fund\\n\\nthe Center. See M.R.S.A. tit. 20-A, § 15689-A.20. In order to\\n\\nimplement the Center, GWH opened a charter school in 2012, called\\n\\nthe Maine Academy of Natural Sciences (\\\"MeANS\\\"), which it continues\\n\\nto operate. Eves's counsel conceded at oral argument that the\\n\\noperation of MeANS is the only way in which the Center has been\\n\\nimplemented.\\n\\n The complaint is silent as to whether MeANS is considered\\n\\na \\\"public\\\" charter school and whether state funding intended for\\n\\nMeANS is simply passed on from GWH to MeANS as such. The complaint\\n\\ncontains no allegations as to the exact legal relationship between\\n\\nthe Center, MeANS, and GWH, and no allegations as to any contracts\\n\\nbetween them. Nor has Eves appended to the complaint any such\\n\\ncontracts, nor quoted from them. However, three things are clear:\\n\\n(1) although MeANS has its own board and principal, the school\\n\\nrelies on \\\"discretionary state funding pursuant to its [statutory]\\n\\ndesignation as 'the Center for Excellence for At-risk Students,'\\\"\\n\\nEves, 2016 WL 1948869, at *3 (citing M.R.S.A. tit. 20-A, § 15689-\\n\\nA.20); (2) GWH fulfills its public function of implementing the\\n\\nCenter only by administering MeANS, see 2009 Me. Legis. Serv. Ch.\\n\\n296, § 2; and (3) the Center is, by legislative designation, a\\n\\npublic entity, see id.\\n\\n The Maine state budget for fiscal years 2014 and 2015\\n\\n-- which covered the period from July 1, 2013 to June 30, 2015 --\\n\\n\\n - 7 -\\n\\nhad allocated $1,060,000 in discretionary funding to GWH for the\\n\\npurpose of operating MeANS. Governor LePage disbursed all of the\\n\\ndiscretionary funding in that period; however, during that period,\\n\\nGWH was under a different President: first, Glenn Cummings, who\\n\\nwas himself a former Speaker of the Maine House and a Democrat,\\n\\nand then under an interim President, Richard Abramson. The 2015–\\n\\n2017 budget under debate in spring 2015 contained a discretionary\\n\\nappropriation of $1,060,000 to GWH to be paid in quarterly\\n\\ninstallments, as in previous years.\\n\\nC. Selection of Speaker Eves as President of GWH\\n\\n GWH began searching for a successor after Glenn Cummings\\n\\nresigned as President of GWH in September 2014. Eves, who was\\n\\nthen Speaker of the Maine House, was one of the nineteen\\n\\napplicants.3\\n\\n GWH's eight-member search committee interviewed Eves on\\n\\nApril 24, 2015. He visited the campus as one of three finalists,\\n\\nand on April 30, the GWH Senior Leadership Team unanimously\\n\\nrecommended him as the best of the three. The Team's memo \\\"cited\\n\\nhis 'extensive clinical experience,' his 'balance of executive\\n\\nadministration and fundraising experience,' and his 'leadership\\n\\n\\n 3 Eves had served as a representative in the House since\\n2008, and was Speaker for four terms from 2012 to 2016. Eves also\\nhad fifteen years of professional experience in behavioral health\\nand family therapy, in both clinical and administrative roles.\\nSince moving from Kentucky to Maine in 2003, Eves worked in that\\nfield, even while serving in the legislature.\\n\\n\\n - 8 -\\n\\nstyle and polished approach' as reasons\\\" for their conclusion.\\n\\nEves, 2016 WL 1948869, at *3. After Eves interviewed with the\\n\\nfull boards of GWH and MeANS on May 15, GWH's Board voted\\n\\nunanimously to offer him the job of GWH President.\\n\\n On June 5, 2015, Eves, who was then still the Speaker of\\n\\nthe Maine House, entered into a two-year employment agreement with\\n\\nGWH, beginning on July 1, 2015. Id. at *4. That agreement\\n\\ncontained a \\\"for-cause termination provision,\\\" and \\\"no conditions\\n\\nor contingencies\\\" related to any actions or funding decisions by\\n\\nthe State. Id. Most of Eves's employment at GWH would overlap\\n\\nwith his final term as Speaker. GWH announced Eves as its new\\n\\nPresident on June 9.\\n\\nD. Governor LePage's Intervention\\n\\n On June 5, Governor LePage learned that GWH had decided\\n\\nto hire Speaker Eves and promptly called GWH's interim President.\\n\\nId. According to the complaint, LePage stated \\\"that he was\\n\\nextremely upset\\\" about the news and \\\"used profanity to describe\\n\\n[Speaker Eves] and his work.\\\" That same day or \\\"soon after,\\\"\\n\\nLePage also sent a handwritten note to GWH's Board Chair, which,\\n\\nas characterized in the complaint, \\\"referred very negatively to\\n\\nSpeaker Eves\\\" and called him a \\\"hack.\\\" This note was not appended\\n\\nto the complaint. The Board Chair's belief, after reading the\\n\\nnote, was \\\"that GWH would lose $1,060,000 in [discretionary] state\\n\\nfunding if it retained Eves as its new President.\\\" Id.\\n\\n\\n - 9 -\\n\\n On June 8, Governor LePage \\\"sent a public letter to the\\n\\nBoard Chairs of GWH and MeANS, urging that they reconsider.\\\" Id.\\n\\nAccording to the complaint, the letter characterized Eves as \\\"a\\n\\nlongtime opponent of public charter schools\\\" who had fought against\\n\\n\\\"every effort to reform Maine's government.\\\" Id. This letter was\\n\\nalso not appended to the complaint.\\n\\n The GWH Board, \\\"which includes people of various\\n\\npolitical affiliations,\\\" discussed the letter and \\\"agreed that\\n\\ntheir selection of Speaker Eves [had been] well-supported\\n\\nand . . . not based on political considerations.\\\" Id.\\n\\n On June 8, LePage also received a call from Gregory\\n\\nPowell, the Chairman of the Board of Trustees of the Harold Alfond\\n\\nFoundation (\\\"the Foundation\\\"), who was responding to a June 5\\n\\nvoicemail from LePage. The complaint alleges Powell was left with\\n\\nthe impression that LePage was \\\"withdrawing all support,\\\"\\n\\nincluding financial support, from GWH as long as Eves remained as\\n\\nPresident of the organization. The complaint alleges that Powell\\n\\nresponded to the news by sending a letter to GWH's Board on June\\n\\n18, warning them that the Foundation had \\\"serious concern[s]\\n\\n. . . regarding [GWH's] future financial viability\\\" if LePage were\\n\\nto follow through on his threat to withhold the $1,060,000 in\\n\\ndiscretionary state funding. Those concerns, Powell further\\n\\nwarned, made the Foundation uneasy about committing to a $2,750,000\\n\\n\\n\\n\\n - 10 -\\n\\ngrant that the Foundation had been planning to give to GWH.\\n\\nPowell's letter was not appended to the complaint.\\n\\n On or about June 9, the complaint alleges Governor LePage\\n\\ntold the Acting Commissioner of the Department of Education not to\\n\\nsend any more payments to GWH \\\"that [were] not required by law.\\\"\\n\\nThe Commissioner, in response, froze $132,500 in discretionary\\n\\nfunding that was scheduled to be sent to GWH at the beginning of\\n\\nthe next quarter (on July 1), assuming the enacted budget contained\\n\\nan appropriation of those funds. As of June 9, the legislature\\n\\nhad not yet passed the budget or appropriated any funding for GWH.\\n\\nIt would have been a violation of Maine law to have sent the\\n\\n$132,500 to GWH before the budget was final and enacted. See\\n\\nM.R.S.A. tit. 5, § 1543.\\n\\n The lawyers for Eves and Governor LePage spoke on June\\n\\n22. Eves's lawyer asked LePage to withdraw his threats, but LePage\\n\\nrefused to change his stance. However, LePage took no further\\n\\nsteps \\\"to reduce or eliminate the $1,060,000 in discretionary funds\\n\\nallotted in the proposed state budget for GWH.\\\" Eves, 2016 WL\\n\\n1948869, at *5.\\n\\n After that conversation between the attorneys, GWH\\n\\nterminated Speaker Eves's employment contract on June 24, one week\\n\\nbefore his planned July 1 start date. Eves was Speaker of the\\n\\nMaine House at the time. Eves immediately stated publicly that\\n\\n\\\"his firing was caused by LePage's threat to withhold funding.\\\"\\n\\n\\n - 11 -\\n\\nId. Months later, on October 15, GWH's Board Chair stated in a\\n\\nlegislative hearing that Eves's employment would not have been\\n\\nterminated but for Governor LePage's intervention. Some of Eves's\\n\\ncolleagues in the legislature also spoke out. State Senate\\n\\nPresident Mike Thibodeau, a Republican, publicly stated that he\\n\\nwas \\\"very saddened by this situation and shocked by what is being\\n\\nalleged. Nearly all legislators depend on a career outside of the\\n\\nState House to provide for their families.\\\" Id.\\n\\n Initially, Governor LePage declined to confirm or deny\\n\\nthat he had made any statement to influence GWH's decision-making\\n\\nprocess. However, as the complaint alleges, when local reporters\\n\\ninterviewed LePage on June 29 and asked whether he had \\\"threatened\\n\\nto withhold money\\\" from GWH, he responded:\\n\\n Yeah, I did! If I could, I would! Absolutely; why\\n wouldn't I? Tell me why I wouldn't take the taxpayer\\n money, to prevent somebody to go into a school and\\n destroy it. Because his heart's not into doing the\\n right thing for Maine people.\\n\\nIn a radio address on July 7, LePage further explained:\\n\\n [Eves] worked his entire political career to oppose and\\n threaten charter schools in Maine. He is the mouthpiece\\n for the Maine Education Association. Giving taxpayers'\\n money to a person who has fought so hard against charter\\n schools would be unconscionable.\\n\\nAnd in another interview on July 30, LePage called Eves \\\"a plant\\n\\nby the unions to destroy charter schools.\\\" LePage drew an analogy:\\n\\n\\\"[O]ne time I stepped in . . . when a man was beating his wife.\\n\\n\\n\\n\\n - 12 -\\n\\nShould I have stepped in? Legally, no. But I did. And I'm not\\n\\nembarrassed about doing it.\\\"\\n\\nE. Procedural History of This Litigation\\n\\n Eves filed this lawsuit on July 30, 2015, and then filed\\n\\na First Amended Complaint on December 18, 2015. Governor LePage\\n\\nmoved to dismiss the suit on January 5, 2016, arguing in his\\n\\nsupporting memo that the complaint failed to state any claim and\\n\\nthat the subject matter of the lawsuit was \\\"a political dispute\\n\\nthat does not belong in court.\\\" He explicitly asserted, inter\\n\\nalia, that his actions as to Eves were protected by both absolute\\n\\nand qualified immunity. On April 13, 2016, Eves was granted leave\\n\\n(without opposition) to file a Second Amended Complaint.4\\n\\n On May 3, 2016, the district court issued an opinion\\n\\ngranting Governor LePage's motion to dismiss. Eves, 2016 WL\\n\\n1948869, at *1. The court entered judgment for LePage the next\\n\\nday, and Eves filed a notice of appeal that same day.\\n\\n\\n\\n\\n 4 The Second Amended Complaint contained five claims\\nagainst Governor LePage: four federal law counts under 42 U.S.C.\\n§ 1983 for violations of Eves's rights to political affiliation,\\nfree speech, freedom of association, and procedural due process,\\nand a fifth claim under state law for intentional interference\\nwith contract. As relief, Eves requested: (1) a declaratory\\njudgment; (2) an injunction compelling Governor LePage to\\n\\\"permanently withdraw his illegal threat\\\" to GWH and \\\"cease using\\nhis authority to illegally retaliate against Eves or private\\norganizations that are prospective employers or employers of\\nEves\\\"; and (3) damages.\\n\\n\\n - 13 -\\n\\n On November 22, 2016, a divided panel of this court\\n\\naffirmed the district court's dismissal of Eves's equitable\\n\\nclaims, and dismissed his § 1983 damages claims on the basis of\\n\\nqualified immunity. Eves, 842 F.3d at 144-45. It also directed\\n\\nthe district court to dismiss Eves's state law claim without\\n\\nprejudice. Id. at 146. Eves petitioned for rehearing en banc,\\n\\nand his petition was granted on January 19, 2018.\\n\\n Eves has narrowed his claims for en banc review. The\\n\\nconduct by Governor LePage he is now challenging is limited to\\n\\nLePage's alleged threat to withhold discretionary funding, and the\\n\\nstop order that was placed, before the budget was finalized, on\\n\\nGWH's first quarterly payment for fiscal year 2015. Eves is no\\n\\nlonger pursuing damages for his free speech claim, but continues\\n\\nto pursue damages for political affiliation discrimination. Eves\\n\\nis also still pursuing equitable relief, especially declaratory\\n\\nrelief.\\n\\n II.\\n\\n We Hold that Qualified Immunity Bars Eves's Claim for Damages\\n for Political Affiliation Discrimination\\n\\nA. Qualified Immunity Framework\\n\\n The Supreme Court has long established that, when sued\\n\\nin their official capacities, government officials are immune from\\n\\ndamages claims unless \\\"(1) they violated a federal statutory or\\n\\nconstitutional right, and (2) the unlawfulness of their conduct\\n\\n\\n\\n - 14 -\\n\\nwas 'clearly established at the time.'\\\" District of Columbia v.\\n\\nWesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566\\n\\nU.S. 658, 664 (2012)). The second step of the qualified immunity\\n\\ninquiry, in turn, involves several factors.\\n\\n The plaintiff must demonstrate that \\\"the law was\\n\\n'\\\"sufficiently clear\\\" [such] that every \\\"reasonable official would\\n\\nunderstand that what he is doing\\\" is unlawful.'\\\" Id. at 589\\n\\n(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The\\n\\nSupreme Court has \\\"repeatedly told courts\\\" not to define the\\n\\nqualified immunity inquiry \\\"at a high level of generality.\\\" City\\n\\n& Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775-76 (2015) (quoting\\n\\nal-Kidd, 563 U.S. at 742). Rather, clearly established law must\\n\\ndefine \\\"the right allegedly violated . . . in a 'particularized'\\n\\nsense so that the 'contours' of the right are clear to a reasonable\\n\\nofficial.\\\" Reichle, 566 U.S. at 665 (quoting Anderson v.\\n\\nCreighton, 483 U.S. 635, 640 (1987)).\\n\\n Qualified immunity, the Court has reinforced, is\\n\\nintended to \\\"protect[] 'all but the plainly incompetent or those\\n\\nwho knowingly violate the law.'\\\" White v. Pauly, 137 S. Ct. 548,\\n\\n551 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).\\n\\nAccordingly, although there need not be \\\"a case directly on\\n\\npoint, . . . existing precedent must have placed the statutory or\\n\\nconstitutional question beyond debate.\\\" al-Kidd, 563 U.S. at 741.\\n\\nThe Supreme Court has \\\"not yet decided what precedents -- other\\n\\n\\n - 15 -\\n\\nthan [its] own -- qualify as controlling authority.\\\" Wesby, 138\\n\\nS. Ct. at 591 n.8. It is enough \\\"for qualified immunity purposes\\\"\\n\\nthough that under existing Supreme Court case law, it is \\\"at least\\n\\narguable\\\" that LePage's actions were constitutional. Reichle, 566\\n\\nU.S. at 669.\\n\\n The Supreme Court has also repeatedly emphasized that\\n\\nthe qualified immunity inquiry \\\"focus[es] on 'the objective legal\\n\\nreasonableness of an official's acts.'\\\" Crawford-El v. Britton,\\n\\n523 U.S. 574, 590 (1998) (quoting Harlow v. Fitzgerald, 457 U.S.\\n\\n800, 819 (1982)). \\\"Evidence concerning the defendant's subjective\\n\\nintent is simply irrelevant\\\" to the second step of the inquiry.\\n\\nId. at 588. As such, if an objectively reasonable official in\\n\\nGovernor LePage's shoes \\\"might not have known for certain that\\n\\n[his] conduct was unlawful,\\\" then LePage \\\"is immune from\\n\\nliability.\\\" Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017). A\\n\\ndecision of qualified immunity on a motion to dismiss is\\n\\nappropriate here.5\\n\\n\\n 5 We reject Eves's contention that qualified immunity\\nshould be decided at a later stage of litigation, not on a motion\\nto dismiss. That would turn well-settled precedent on its head.\\nThe Supreme Court has repeatedly \\\"stressed the importance of\\nresolving immunity questions at the earliest possible stage [of\\nthe] litigation.\\\" Wood v. Moss, 572 U.S. 744, 755 n.4 (2014)\\n(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).\\nThe Court has affirmed the dismissal of multiple First Amendment\\nclaims on the basis of qualified immunity. See, e.g., Ziglar, 137\\nS. Ct. at 1869; Wood, 572 U.S. at 756-64; Iqbal, 556 U.S. at 686.\\nWe have as well. See, e.g., Air Sunshine, Inc. v. Carl, 663 F.3d\\n27, 32-37 (1st Cir. 2011); Decotiis v. Whittemore, 635 F.3d 22,\\n\\n\\n - 16 -\\n\\nB. Qualified Immunity Analysis\\n\\n We move directly to the second step of the qualified\\n\\nimmunity analysis and ask whether Governor LePage's alleged\\n\\nconduct violated \\\"clearly established\\\" federal law as to political\\n\\naffiliation discrimination. Applying this objective test, we\\n\\nconclude that the law on which Eves relies was not clearly\\n\\nestablished such that a reasonable governor in LePage's situation\\n\\nwould have concluded that the constitutional question and the\\n\\npolicymaker exception was placed beyond doubt in Eves's favor.6\\n\\nThere was no \\\"controlling authority\\\" or even a \\\"consensus of cases\\n\\nof persuasive authority,\\\" Wilson v. Layne, 526 U.S. 603, 617\\n\\n(1999), that would lead to the conclusion that Governor LePage can\\n\\nbe denied immunity.\\n\\n Even if we were to assume that Governor LePage induced\\n\\nGWH to remove Eves solely because Eves was a Democrat -- and not,\\n\\neven in part, because of LePage's view of Eves's policy positions7\\n\\n\\n36-38 (1st Cir. 2011); Torres-Rivera v. Calderón-Serra, 412 F.3d\\n205, 214-15 (1st Cir. 2005).\\n 6 Eves argues that because political discrimination cases\\noften involve \\\"a calculated decision,\\\" and not a split-second\\njudgment call as in some Fourth Amendment cases, a less-protective\\nstandard of qualified immunity should apply. He cites no law to\\nthat effect, and we know of none. As a matter of fact, the\\ninferences from the complaint are that LePage was under some time\\npressure to act (if not a split-second decision), and there were\\nat least two reasons for that: (1) the budget was in the process\\nof being decided on within days, and (2) the date of Eves's\\nappointment was looming.\\n 7 We reiterate that the complaint expressly alleges that\\n\\n\\n - 17 -\\n\\n-- for the reasons that follow, LePage could have reasonably\\n\\nbelieved that the President of GWH was a \\\"policymaker\\\" who could\\n\\nbe lawfully discharged on the basis of his political affiliation.8\\n\\n The Supreme Court has long held, beginning with Elrod v.\\n\\nBurns, 427 U.S. 347 (1976) (plurality opinion), and Branti v.\\n\\nFinkel, 445 U.S. 507 (1980), that there is no right to protection\\n\\non the grounds of political affiliation where political\\n\\naffiliation is legitimately relevant to the employee's job. This\\n\\ncourt has extended the \\\"policymaker exception,\\\" in certain\\n\\ncircumstances, beyond public offices to nongovernment employees.\\n\\nSee Ramírez v. Arlequín, 447 F.3d 19, 23 (1st Cir. 2006); Prisma\\n\\nZona Exploratoria de Puerto Rico, Inc. v. Calderón, 310 F.3d 1, 3,\\n\\n8 (1st Cir. 2002).\\n\\n In Elrod, a plurality of the Supreme Court specifically\\n\\nnoted that consideration of political affiliation for policymaking\\n\\npositions is justified to prevent \\\"representative government\\\" from\\n\\nbeing \\\"undercut by tactics obstructing the implementation of\\n\\n\\nLePage communicated his intent to oppose further discretionary\\nfunding for GWH unless it removed Eves, because Eves was thought\\nby LePage to be beholden to unions, to oppose charter schools, and\\nto seek to undercut the mission of MeANS.\\n 8 LePage did not waive the argument that he is entitled to\\nqualified immunity even if he committed a reasonable mistake of\\nlaw. \\\"The purpose of qualified immunity is to protect reasonable,\\nif mistaken, decision making by government officials\\\" when the law\\nis unclear. López-Quiñones v. P.R. Nat'l Guard, 526 F.3d 23, 27\\n(1st Cir. 2008) (citation omitted). As such, it is sufficient\\nthat LePage argued the law was not clearly established as to\\nwhether the President of GWH is a policymaking position.\\n\\n\\n - 18 -\\n\\npolicies of the . . . administration, policies presumably\\n\\nsanctioned by the electorate.\\\" 427 U.S. at 367. Elrod also\\n\\nrecognized that \\\"[n]o clear line can be drawn between policymaking\\n\\nand nonpolicymaking positions.\\\" Id. Rather, \\\"[t]he nature of\\n\\nthe responsibilities [of the position] is critical.\\\" Id.\\n\\n Branti reaffirmed that consideration of political\\n\\naffiliation is permissible where \\\"affiliation is an appropriate\\n\\nrequirement for the effective performance of the public office\\n\\ninvolved.\\\"9 445 U.S. at 518 (emphasis added). There, the Court\\n\\nheld that two county assistant public defenders, who the lower\\n\\ncourts had found were terminated solely because they were\\n\\nRepublicans, had a viable First Amendment claim against the newly\\n\\nelected public defender. Branti, 445 U.S. at 520. Quoting Elrod\\n\\nin part, the Court reasoned that the assistant public defenders\\n\\nwere not policymakers subject to political discharge because they\\n\\nhad \\\"'very limited, if any, responsibility' with respect to the\\n\\noverall operation of the public defender's office.' They [also]\\n\\ndid not 'act as advisors or formulate plans for the implementation\\n\\nof the broad goals of the office.'\\\" Id. at 511 (quoting Finkel\\n\\nv. Branti, 457 F. Supp. 1284, 1291 (S.D.N.Y. 1978)).\\n\\n\\n 9 A later case extended Branti and Elrod's protections to\\nemployment decisions other than discharge for what were low-level\\nemployees. See Rutan v. Republican Party of Ill., 497 U.S. 62,\\n79 (1990). Rutan would not have provided any notice to LePage\\nthat his actions were unconstitutional. No claim was made there\\nthat such employees held policymaking positions.\\n\\n\\n - 19 -\\n\\n Here, the President of GWH can be reasonably understood\\n\\nto be a policymaker given GWH's statutory mandate to administer a\\n\\npublic entity, the Center for Excellence of At-risk Students, and\\n\\nits choice to do so solely through MeANS. President was the\\n\\nhighest position at GWH. Further, the job description, as set\\n\\nforth in the complaint, could lead a reasonable governor to\\n\\nconclude that the position involved \\\"act[ing] as an adviser\\\" and\\n\\n\\\"formulat[ing] plans for the implementation\\\" of the Center.\\n\\nBranti, 445 U.S. at 511. The job qualifications emphasized\\n\\n\\\"administrative experience in strategic planning . . . and\\n\\nexperience working with legislators, state policy makers, and\\n\\ngovernmental agencies.\\\" (Emphasis added.)\\n\\n Indeed, the complaint itself alleges that Eves was\\n\\nselected specifically for his \\\"statewide policy and leadership\\n\\nexperience as Speaker of the Maine House of Representatives.\\\"\\n\\nCoupled with the fact that the previous GWH President had also\\n\\nbeen the Speaker of the Maine House, this could lead a reasonable\\n\\ngovernor to conclude that policymaking, including working with\\n\\nelected policymakers, was an important aspect of the GWH\\n\\nPresident's job.\\n\\n A reasonable governor could also conclude that the\\n\\nPresident of GWH was \\\"in a position to thwart\\\" the policy\\n\\nobjectives of \\\"the in-party.\\\" Elrod, 427 U.S. at 367. In\\n\\ncarrying out its public function, GWH is mandated by statute to\\n\\n\\n - 20 -\\n\\n\\\"collaborate with the department [of education], public school\\n\\nadministrators and other public and private organizations with an\\n\\ninterest in the support and education of at-risk students.\\\"\\n\\nM.R.S.A. tit. 20-A, § 6952. Given that there is clearly room for\\n\\nprincipled and partisan disagreement about how best to administer\\n\\nMeANS and collaborate with various stakeholders, a reasonable\\n\\ngovernor could conclude that \\\"[political] affiliation is an\\n\\nappropriate requirement\\\" for the position of GWH President.\\n\\nBranti, 445 U.S. at 518. In fact, Governor LePage articulated\\n\\nthis exact concern, as evidenced by allegations in the complaint\\n\\nthat LePage stated Eves would use his office to oppose LePage's\\n\\nagenda of promoting charter schools and to promote policies favored\\n\\nby the teachers' union.\\n\\n Further, the fact that GWH’s funding for MeANS is left\\n\\nentirely to the governor's discretion is yet another reason why a\\n\\nreasonable governor could have believed that the President of GWH\\n\\nwas an important policymaking position. The legislature specified\\n\\nthat the discretionary state funding GWH receives to implement the\\n\\nCenter is expressly subject to the satisfaction of the Commissioner\\n\\nof Education (and by extension, the governor). See M.R.S.A. tit.\\n\\n20-A, § 15689-A.20. This suggests that the operation of MeANS is\\n\\na public function closely tied to the \\\"implementation of policies\\n\\nof [LePage's] administration.\\\" Elrod, 427 U.S. at 367. And a\\n\\nreasonable governor could have believed that a significant reason\\n\\n\\n - 21 -\\n\\nthe funding of the Center was left to whoever was the occupant of\\n\\nthe governor's job was to ensure that, in implementing the Center,\\n\\nGWH would follow that administration's educational policy\\n\\ndirectives.\\n\\n Turning to First Circuit law interpreting the\\n\\npolicymaker exception, we reach the same qualified immunity\\n\\noutcome. Our circuit precedent has consistently held that\\n\\npositions of far less responsibility and significance than that of\\n\\nthe President of GWH were policymaking positions. See O'Connell\\n\\nv. Marrero-Recio, 724 F.3d 117, 120 (1st Cir. 2013) (human\\n\\nresources director of agency); Uphoff Figueroa v. Alejandro, 597\\n\\nF.3d 423, 426 (1st Cir. 2010) (administrator of agency's legal\\n\\noffice); Flynn v. City of Bos., 140 F.3d 42, 45 (1st Cir. 1998)\\n\\n(\\\"the regional director of an administrative agency, the municipal\\n\\nsecretary in a mayor's office, an officer in charge of human\\n\\nresources, a director of public relations, a superintendent of\\n\\npublic works, a director of a city's federal programs office, and\\n\\na director of a satellite office of the Massachusetts Secretary of\\n\\nState\\\" (citations omitted)); Roman Melendez v. Inclan, 826 F.2d\\n\\n130, 133-34 (1st Cir. 1987) (regional director of agency in charge\\n\\nof maintaining public buildings).10 Further, we have held that\\n\\n\\n 10 Roman Melendez in turn cited to eight First Circuit\\ncases:\\n [I]n every case concerning regional directors\\n of government agencies in Puerto Rico, we have\\n\\n\\n - 22 -\\n\\n\\\"the government's policymaking interest [can] override the First\\n\\nAmendment protection against political discrimination, even where\\n\\nthe plaintiff [is] not a government employee.\\\" Ramírez, 447 F.3d\\n\\nat 23.\\n\\n A governor could reasonably have thought that the\\n\\nPresident of GWH was a position to which the policymaker exception\\n\\napplied based on our decision in Prisma Zona, 310 F.3d 1. There,\\n\\nthis court applied the policymaker exception to a private\\n\\norganization to dismiss its First Amendment claim on the merits.\\n\\n\\n\\n\\n concluded, at least for purposes of granting\\n qualified immunity, that a regional director\\n was, in fact, a policymaker. See Echevarria\\n v. Gracia-Anselmi, 823 F.2d 696 (1st Cir.\\n 1987) (regional director of the Right to\\n Employment Administration); Perez Quintana v.\\n Gracia Anselmi, 817 F.2d 891 (1st Cir. 1987)\\n (regional director of the Right to Employment\\n Administration); Rafucci Alvarado v. Zayas,\\n 816 F.2d 818 (1st Cir. 1987) (regional\\n director of the Department of Social\\n Services); Alicea Rosado v. Zayas, 813 F.2d\\n 1263 (1st Cir. 1987) (regional director of the\\n Department of Social Services); Monge Vazquez\\n v. Rohena Betancourt, 813 F.2d 22 (1st Cir.\\n 1987) (regional director of the Department of\\n Natural Resources); Collazo Rivera v. Torres\\n Gaztambide, 812 F.2d 258 (1st Cir. 1987)\\n (regional director of the Rural Housing\\n Administration); Rodriguez v. Munoz, 808 F.2d\\n 138 (1st Cir. 1986) (regional director of the\\n Right to Employment Administration); Jimenez\\n Fuentes v. Torres Gaztambide, 807 F.2d 236\\n (1st Cir. 1986) (regional directors of the\\n Urban Renewal and Housing Corporation).\\n\\n826 F.2d at 134.\\n\\n\\n - 23 -\\n\\nSee id. at 3, 8. The plaintiff in Prisma Zona was slated to\\n\\nreceive state funding \\\"to take over the construction, ownership,\\n\\nand operation\\\" of a children's museum in Puerto Rico. Id. at 3.\\n\\nAfter a gubernatorial election, the new administration reneged on\\n\\nawarding the plaintiff the funding because of its ties to the\\n\\noutgoing governor and his political party. See id. at 4. This\\n\\ncourt held that the plaintiff \\\"[did] not set forth a First\\n\\nAmendment violation even if the facts [were] as alleged\\\" because\\n\\nconsideration of the recipient's political affiliation was\\n\\npermissible. Id. at 8. Specifically, we reasoned:\\n\\n Even in core cases involving politically\\n motivated hirings and firings, the Supreme\\n Court has itself recognized that a wholly\\n antiseptic application of the [policymaker]\\n principle is unrealistic. Instead, party\\n affiliation is an appropriate consideration in\\n hiring and firing decisions with respect to\\n government positions that may be characterized\\n as \\\"policymaking\\\" or \\\"confidential.\\\"\\n\\n Here, Prisma [Zona] seeks to attack a set of\\n decisions related to the possible\\n privatization (whether to do so and through\\n whom) of the operation of a children's museum\\n and directing to it millions of dollars of\\n public monies. Where policy choices of this\\n magnitude are presented, courts ought not be\\n second-guessing how much party politics in the\\n narrower sense may also have played a role.\\n If political considerations are permissible in\\n the hiring and firing of upper-level\\n government employees, surely they are also\\n appropriate in a case like this one. . . .\\n\\n Firing a street sweeper who voted for the\\n loser is one thing; turning over a publicly\\n\\n\\n\\n - 24 -\\n\\n funded $70 million museum to the opposition\\n party is quite another.\\n\\nId. at 7-8 (citations omitted).\\n\\n Prisma Zona makes clear that when private organizations\\n\\ntake public funding to administer public entities without specific\\n\\nrequirements, they become policymakers and may have that funding\\n\\nterminated for political reasons. See id. at 7. Because Eves's\\n\\ncomplaint describes nothing more than that very scenario, it cannot\\n\\nsurvive a motion to dismiss.\\n\\n But even if we looked to the Maine statutory scheme, the\\n\\nresult of the qualified immunity analysis would be the same. Just\\n\\nas the political affiliation of the recipient of government funding\\n\\nwas relevant in Prisma Zona, so too a reasonable governor could\\n\\nhave thought it relevant here. The President of GWH, like Prisma\\n\\nZona, was in charge of administering a large sum of \\\"public monies\\\"\\n\\nto run a public entity. Id. at 7. In fact, GWH was charged by\\n\\nstatute to \\\"administer[]\\\" the Center of Excellence for At-risk\\n\\nStudents, which it has done by using the discretionary state\\n\\nfunding to operate MeANS. See M.R.S.A. tit. 20-A, §§ 6951, 15689-\\n\\nA.20; 2009 Me. Legis. Serv. ch. 296, § 2. Although MeANS has its\\n\\nown principal and board of directors for day-to-day operations,\\n\\nGWH, as the administrator of the Center, is ultimately responsible\\n\\nfor MeANS's compliance with its unique charter school obligations\\n\\nto the state. See id.\\n\\n\\n\\n - 25 -\\n\\n In evaluating whether a position qualifies under the\\n\\npolicymaker exception, our precedent asks whether:\\n\\n (1) \\\"the discharging agency's functions entail\\n 'decisionmaking on issues where there is room\\n for political disagreement on goals or their\\n implementation,'\\\" and (2) \\\"'the particular\\n responsibilities of the plaintiff's position\\n resemble those of a policymaker, privy to\\n confidential information, a communicator, or\\n some other office holder whose function is\\n such that party affiliation is an equally\\n appropriate requirement for continued\\n tenure.'\\\"\\n\\nRosenberg v. City of Everett, 328 F.3d 12, 18 (1st Cir. 2003)\\n\\n(quoting Roldán-Plumey v. Cerezo-Suárez, 115 F.3d 58, 61-62 (1st\\n\\nCir. 1997)).\\n\\n A governor could have reasonably understood Eves's new\\n\\nposition as President of GWH to entail \\\"decisionmaking on issues\\n\\nwhere there is room for political disagreement.\\\" Id. In this\\n\\ncase, there are multiple ways the President of GWH can achieve the\\n\\norganization's ultimate goal of promoting education for at-risk\\n\\nyouth. Moreover, \\\"an issue of special political significance\\\" is\\n\\nat stake, Roman Melendez, 826 F.2d at 133: the success of GWH in\\n\\nimplementing Governor LePage's education policies through the\\n\\noperation of MeANS.11\\n\\n\\n 11 LePage also argues that out-of-circuit precedent\\nsupports granting qualified immunity. The Fifth Circuit held in\\nKinsey v. Salado Independent School District, 950 F.2d 988 (5th\\nCir. 1992) (en banc), that the superintendent of a school district\\nwas a policymaking position, such that the superintendent's claim\\nfor political affiliation discrimination failed on the merits.\\n\\n\\n - 26 -\\n\\n Against this legal backdrop, and faced with these facts\\n\\nparticular to MeANS, GWH, and the state of Maine, a reasonable\\n\\ngovernor could have thought that Eves's political affiliation was\\n\\nrelevant to his performance as President of GWH and that the\\n\\npolicymaker exception applied to the position. At the time of\\n\\nthese events, LePage could have concluded that no law clearly\\n\\nestablished that his communications with GWH rose to the level of\\n\\nunlawful First Amendment retaliation against Speaker Eves.\\n\\n But even if Governor LePage were mistaken as a matter of\\n\\nlaw about whether Eves's position was encompassed by the\\n\\npolicymaking exception, any such mistake was reasonable, and a\\n\\nreasonable mistake of law does not defeat qualified immunity. See\\n\\nal-Kidd, 563 U.S. at 743 (\\\"Qualified immunity gives government\\n\\nofficials breathing room to make reasonable but mistaken judgments\\n\\nabout open legal questions.\\\"); see also López-Quiñones, 526 F.3d\\n\\nat 27-28 (\\\"[A]s the law stood when the decision was made a\\n\\nreasonable official could (albeit mistakenly) have deemed\\n\\n[plaintiff] outside Elrod/Branti's protection.\\\").\\n\\n\\n\\nId. at 996. The majority reasoned that the superintendent was\\nremovable for political reasons because the occupant of the\\nposition possessed the power to \\\"thwart\\\" the School Board's goals.\\nId. Judge Higginbotham also stressed in his concurrence that\\nnothing in the First Amendment obligated the Board to retain a\\nSuperintendent who did not share its policy views. See id. at 998\\n(Higginbotham, J., concurring). The federal district court for\\nthe Eastern District of Michigan held the same with respect to the\\npresident of a community college. See Heath v. Highland Park Sch.\\nDist., 800 F. Supp. 1470, 1477 (E.D. Mich. 1992).\\n\\n\\n - 27 -\\n\\n Eves next turns to the Supreme Court cases Board of\\n\\nCounty Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S.\\n\\n668 (1996), and O'Hare Truck Service, Inc. v. City of Northlake,\\n\\n518 U.S. 712 (1996), to argue that LePage violated Eves's political\\n\\naffiliation rights. But these cases do not clearly prohibit\\n\\nGovernor LePage's actions \\\"in light of the specific context of\\n\\n[this] case.\\\" Mullenix, 136 S. Ct. at 308 (quoting Brosseau v.\\n\\nHaugen, 543 U.S. 194, 198 (2004) (per curiam)).\\n\\n Umbehr and O'Hare do not help Eves because they did not\\n\\ninvolve the application of the policymaker exception, nor could\\n\\nthey have, given their facts. They involved the termination of a\\n\\nbinding commercial agreement with a contractor. In Umbehr, the\\n\\ndefendant Board terminated an automatically renewing contract with\\n\\nthe plaintiff's trash-hauling company in retaliation for the\\n\\nplaintiff's criticisms of a Board member. See 518 U.S. at 671.\\n\\nIn O'Hare, the defendant mayor removed the plaintiff's company\\n\\nfrom a rotation of the city's tow truck services because the\\n\\nplaintiff refused to donate to the mayor's campaign and instead\\n\\nsupported his opponent. See 518 U.S. at 715-16. It was never\\n\\nargued, unlike here, that the plaintiffs in these cases were\\n\\npolicymakers whose exercise of First Amendment rights was relevant\\n\\nto their positions as independent contractors.12\\n\\n\\n 12 In addition to this crucial difference, a reasonable\\ngovernor still could have believed that his actions were\\n\\n\\n - 28 -\\n\\n Eves also cites Agency for International Development v.\\n\\nAlliance for Open Society International, Inc., 570 U.S. 205 (2013)\\n\\n(AID). But his en banc briefing only makes an unadorned reference\\n\\nto AID's applicability to his political affiliation claim. Even\\n\\nif we were to consider Eves's argument, however, AID is far from\\n\\nbeing on all fours with this case and would not have provided\\n\\nLePage the requisite notice to defeat qualified immunity. In AID,\\n\\nthe Supreme Court held that Congress's policy requirement\\n\\n\\\"mandat[ing] that recipients of [statutory] funds explicitly agree\\n\\nwith the Government's policy to oppose prostitution and sex\\n\\ntrafficking,\\\" by signing an agreement to that effect, violated the\\n\\nFirst Amendment because \\\"freedom of speech prohibits the\\n\\ngovernment from telling people what they must say.\\\" Id. at 213\\n\\n(quoting Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547\\n\\nU.S. 47, 61 (2006)). But Eves is the plaintiff here, not GWH.\\n\\nAnd AID would not inform a governor in LePage's situation that\\n\\nthis was not a policymaking position.\\n\\n Finally, Eves contends that El Dia, Inc. v. Rossello,\\n\\n165 F.3d 106, 108 (1st Cir. 1999), which held that it was\\n\\n\\n\\nconstitutional because unlike in Umbehr and O'Hare, the funds at\\nissue here were left entirely to his discretion by statute. That\\nthe legislature chose to condition GWH's funding upon GWH meeting\\nits state-mandated objectives as to MeANS only reinforces the\\nimportance of GWH's public function and the reasonableness of\\nGovernor LePage's belief that the President of GWH was a\\npolicymaking position. His en banc briefing explicitly raised\\nthis defense.\\n\\n\\n - 29 -\\n\\nunconstitutional for a governor to leverage discretionary\\n\\ngovernment advertising to a newspaper to express displeasure over\\n\\nthe paper's critical coverage and to obtain favorable treatment,\\n\\ncontrols. But that case is \\\"simply too factually distinct to\\n\\nspeak clearly to the specific circumstances here.\\\" Mullenix, 136\\n\\nS. Ct. at 312. El Dia simply did not implicate the policymaker\\n\\nexception. Accordingly, a reasonable governor in LePage's shoes\\n\\nwould not have thought that El Dia governed his conduct in this\\n\\nmatter.13\\n\\n * * *\\n\\n Governor LePage, for all of these reasons, was entitled\\n\\nto qualified immunity. Accordingly, we dismiss the damages claims\\n\\nagainst him.\\n\\n III.\\n\\n We Hold that There Are No Remaining Equitable or State Law\\n Claims\\n\\n We reinstate Parts III and IV of our prior panel opinion\\n\\nand hold again that Eves's claims for equitable relief and his\\n\\nstate law claim must be dismissed. See SEC v. Tambone, 597 F.3d\\n\\n\\n\\n\\n 13 As to the out-of-circuit cases that Eves cites, they are\\nfactually distinguishable, and some were, in any event, published\\nafter LePage's conduct at issue, see Backpage.com, LLC v. Dart,\\n807 F.3d 229 (7th Cir. 2015). At the very least, the Supreme\\nCourt has underscored that \\\"[w]hen the courts are divided . . . a\\nreasonable official lacks the notice required before imposing\\nliability.\\\" Ziglar, 137 S. Ct. at 1868.\\n\\n\\n - 30 -\\n\\n436, 450 (1st Cir. 2010) (en banc) (reinstating portions of\\n\\nwithdrawn panel opinion); United States v. Vega-Santiago, 519 F.3d\\n\\n1, 6 (1st Cir. 2008) (en banc) (same).\\n\\n Eves argues that we did not especially discuss his claim\\n\\nfor declaratory relief in our prior opinion. We do so below and\\n\\nhold that the district court correctly dismissed his request for\\n\\ndeclaratory relief as moot.\\n\\n \\\"[T]o warrant the issuance of a declaratory judgment,\\\"\\n\\nEves must demonstrate that there remains \\\"a substantial\\n\\ncontroversy . . . of sufficient immediacy and reality.\\\" Unión de\\n\\nEmpleados de Muelles de P.R., Inc. v. Int'l Longshoremen's Ass'n,\\n\\n884 F.3d 48, 58 (1st Cir. 2018) (quoting Am. Civil Liberties Union\\n\\nof Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 54\\n\\n(1st Cir. 2013) (ACLUM)). He cannot do so. As such,\\n\\n\\\"pronouncing\\\" whether LePage's \\\"past actions . . . were right or\\n\\nwrong,\\\" would be \\\"merely advisory.\\\" ACLUM, 705 F.3d at 53 (quoting\\n\\nSpencer v. Kemna, 523 U.S. 1, 18 (1998)). Federal courts should\\n\\nnot issue such advisory opinions. Id.\\n\\n IV.\\n\\n Conclusion\\n\\n Our holding today is narrow and fact-bound: LePage is\\n\\nentitled to qualified immunity on Eves's political affiliation\\n\\ndiscrimination claim under the policymaker exception.\\n\\n\\n\\n\\n - 31 -\\n\\n The district court's judgment is affirmed with respect\\n\\nto the dismissal of Eves's federal and state law claims.\\n\\n\\n\\n — Concurring Opinion Follows —\\n\\n\\n\\n\\n - 32 -\\n\\n THOMPSON, Circuit Judge, with whom TORRUELLA and BARRON,\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408543/\", \"author_raw\": \"Judge Kayatta is recused and did not participate in\"}, {\"author\": \"Circuit Judges, join, concurring\", \"type\": \"concurrence\", \"text\": \"Circuit Judges, join, concurring.\\n\\n According to Eves's complaint (whose well-pled\\n\\nallegations we must accept), Governor LePage pressured GWH into\\n\\nfiring Eves by threatening to cut off GWH's state funding —\\n\\npressure LePage applied principally because he views Eves as a\\n\\npolitical enemy.14 To get anywhere, though, Eves must overcome\\n\\nthe hurdle of qualified immunity. See District of Columbia v.\\n\\nWesby, 138 S. Ct. 577, 589 (2018). Which means he must demonstrate\\n\\nthat (1) LePage's conduct violated the First Amendment and that\\n\\n(2) clearly-established law showed as much. See id. If Eves\\n\\nstumbles at either step, his lawsuit is over. See Pearson v.\\n\\nCallahan, 555 U.S. 223, 236 (2009).\\n\\n The en banc opinion starts and stops at step (2) — i.e.,\\n\\nthe decision assumes that even if Governor LePage got Eves fired\\n\\nbecause of Eves's political leanings, no clearly-established law\\n\\nprevented LePage from thinking Eves held the kind of policymaking\\n\\njob at GWH for which political affiliation was a legitimate\\n\\ncredential. And given the unique relationship that existed\\n\\nbetween GWH, the Center, and MeANS, I'm fully on board with the\\n\\nopinion's policymaker-driven conclusion.\\n\\n\\n 14 Following the en banc opinion's lead, I sometimes refer to\\nLePage and Eves as Governor LePage and Speaker Eves — even though\\nLePage left office in January 2019 and Eves left office in December\\n2016.\\n\\n\\n - 33 -\\n\\n Take note, however: if the policymaker exception hadn't\\n\\nbeen in play, I'd have no trouble concluding that in the\\n\\ncircumstances of this case, Eves sufficiently pled a violation of\\n\\nhis constitutional right. Allow me to explain.\\n\\n I\\n\\n In qualified-immunity cases, courts can (as intimated\\n\\nabove) jettison a constitutional claim for either of two reasons\\n\\n— because the claimed constitutional right doesn't exist, step\\n\\n(1); or because the constitutional right wasn't clearly\\n\\nestablished when the alleged misconduct occurred, step (2). Id.\\n\\nAdmittedly, courts may address the two steps of the qualified-\\n\\nimmunity inquiry in any order. Id. But reflexively granting\\n\\nqualified immunity without first deciding whether the complained-\\n\\nof conduct offends the Constitution (i.e., resolving cases solely\\n\\nat step (2)) results in fewer and fewer courts establishing\\n\\n\\\"constitutional precedent,\\\" let alone the kind of clearly-\\n\\nestablished precedent needed to overcome a qualified-immunity\\n\\nclaim — a phenomenon known as \\\"constitutional stagnation.\\\" See\\n\\nid. at 232. And this phenomenon can put plaintiffs like Eves in\\n\\na vicious cycle: they \\\"must produce precedent even as fewer courts\\n\\nare producing precedent\\\"; \\\"[i]mportant constitutional questions go\\n\\nunanswered precisely because those questions are yet unanswered\\\";\\n\\nand \\\"[c]ourts then rely on that judicial silence to conclude\\n\\nthere's no equivalent case on the books\\\" and thus no violation of\\n\\n\\n - 34 -\\n\\nclearly-established law. See Zadeh v. Robinson, 902 F.3d 483, 499\\n\\n(5th Cir. 2018) (Willett, J., concurring dubitante).\\n\\n What can break the cycle, however, is starting with step\\n\\n(1) — the constitutional-violation step, an approach courts should\\n\\ntake in cases involving a recurring fact pattern where (a) help on\\n\\nthe constitutionality of the contested practice is needed and\\n\\n(b) the practice is likely to be contested only in the qualified-\\n\\nimmunity context. See Camreta v. Greene, 563 U.S. 692, 705-06,\\n\\n706 n.5 (2011).15 And having thought about this case a lot, I\\n\\nbelieve deciding whether LePage infracted the Constitution would\\n\\nadvance the law's development: if not resolved, the First\\n\\nAmendment issues pressed here could arise again and again — indeed,\\n\\nit's clear LePage's briefs suggest public officials think they are\\n\\nfreer to keep funds from private entities than the First Amendment\\n\\nactually allows. See Pearson, 555 U.S. at 237 (noting that\\n\\n\\n\\n\\n 15 Conversely, judges should resolve a case exclusively at\\nstep (2) — the clearly-established-law step — where, for example,\\nthe step (1) issue \\\"is so factbound that the decision\\\" on the\\nconstitutional-violation question \\\"provides little guidance for\\nfuture cases,\\\" Pearson, 555 U.S. at 237; \\\"a higher court\\\" may \\\"soon\\n. . . decide[]\\\" the issue, id. at 238; \\\"qualified immunity is\\nasserted at the pleading stage\\\" and \\\"the precise factual basis for\\nthe . . . claim . . . may be hard to identify,\\\" id. at 238-39;\\ndealing with step (1) creates \\\"a risk of bad decisionmaking\\\"\\nbecause the briefing is poor, id. at 239; discussing both steps\\nrisks \\\"bad decisionmaking\\\" because the court may believe the law\\nisn't clearly established and so give scant thought to whether the\\nconstitutional right exists, id.; and \\\"it is plain that a\\nconstitutional right is not clearly established but far from\\nobvious whether in fact there is such a right,\\\" id. at 237.\\n\\n\\n - 35 -\\n\\nqualified immunity's step (1) \\\"is intended to further the\\n\\ndevelopment of constitutional precedent\\\").\\n\\n So on to step (1).\\n\\n II\\n\\n A\\n\\n Eves basically claims Governor LePage promised to put\\n\\nGWH out of business unless it dumped him as president, all because\\n\\nLePage didn't like his politics. The en banc opinion mentions\\n\\nsome of the operative complaint's allegations of political\\n\\nvendetta-ism. Other allegations noted in the complaint but not\\n\\nthe en banc decision include:\\n\\n \\\"Governor LePage knew that the unexpected loss of the\\n\\n $1,060,000 in discretionary state funding for [GWH] would\\n\\n also jeopardize another $2,750,000 in private funding for\\n\\n [GWH] from the Harold Alfond Foundation,\\\" and he \\\"knew\\\" too\\n\\n \\\"that the combined loss of the $1,060,000 in state funding\\n\\n and $2,750,000 in funding from [the] Harold Alfond Foundation\\n\\n would likely force [GWH] out of existence.\\\"\\n\\n \\\"Because of LePage's blackmail, [GWH] was forced to fire\\n\\n [Eves] without cause . . . .\\\"\\n\\n \\\"After [GWH] fired Eves, LePage released on schedule all of\\n\\n the quarterly installments for the $1,060,000 in\\n\\n discretionary state funds for [GWH] included in the\\n\\n [relevant] budget.\\\"\\n\\n\\n - 36 -\\n\\n \\\"The [GWH] Board Chair testified\\\" before a legislative\\n\\n oversight committee that \\\"Speaker Eves would be its President\\n\\n today except for Governor LePage's threats to withhold\\n\\n $1,060,000 in budgeted state funding unless Speaker Eves was\\n\\n fired.\\\"16\\n\\n B\\n\\n Moving from the facts to the law, we've known since the\\n\\n1970s that the First Amendment protects \\\"nonpolicymaking,\\n\\nnonconfidential\\\" public employees from suffering adverse\\n\\nemployment consequences because of their \\\"political beliefs.\\\" See\\n\\nElrod v. Burns, 427 U.S. 347, 375 (1976) (Stewart, J., concurring\\n\\nin the judgment); see also Branti v. Finkel, 445 U.S. 507, 518\\n\\n(1980). \\\"Non\\\" is a key qualifier, because (as relevant here) if\\n\\nthe effective performance of a public employee's job requires\\n\\n\\\"political loyalty\\\" — \\\"either because the job involves the making\\n\\nof policy and thus the exercise of political judgment . . ., or\\n\\nbecause it . . . gives the [job] holder access to . . .\\n\\n\\n 16\\n In outlining the complaint's allegations, the en banc\\nopinion repeatedly says that Eves failed to attach certain letters\\nto his pleading — for instance, the decision notes that LePage\\n\\\"sent a handwritten note to GWH's Board Chair, which as\\ncharacterized in the complaint, 'referred very negatively to\\nSpeaker Eves' and called him a 'hack,'\\\" but adds that Eves did not\\n\\\"append[]\\\" the note to the complaint. True enough, but\\nirrelevant. As I understand it, Eves's not attaching these\\nmissives plays no part in the en banc opinion's decisional\\ncalculus. Which makes sense, because the opinion doesn't cite\\n(and I've not found) any case suggesting (never mind holding) that\\nhe had to include these letters with his pleading.\\n\\n\\n - 37 -\\n\\nconfidential, politically sensitive thoughts\\\" — then and only then\\n\\nwill the First Amendment permit a political firing. See Riley v.\\n\\nBlagojevich, 425 F.3d 357, 359 (7th Cir. 2005) (Posner, J.) (citing\\n\\nElrod and Branti). This is called the \\\"policymaker\\\" exception to\\n\\nthe rule against political discrimination. See, e.g., Wilbur v.\\n\\nMahan, 3 F.3d 214, 217 (7th Cir. 1993) (Posner, J.) (discussing\\n\\nElrod and Branti, among other decisions, and noting that the\\n\\npolicymaker exception \\\"reflect[s] a recognition that some\\n\\npatronage hiring may be essential to democratic government,\\\" for\\n\\n\\\"elected officials cannot implement the policies that they were\\n\\nelected to carry out, and hence the will of the electorate cannot\\n\\nbe effectuated, unless the officials can [have] their political\\n\\nallies in the most sensitive jobs\\\").17\\n\\n Also critically, we've known since the 1990s — thanks to\\n\\na pair of contractor-speech cases, O'Hare Truck Service, Inc. v.\\n\\nCity of Northlake, 518 U.S. 712 (1996), and Board of County\\n\\nCommissioners v. Umbehr, 518 U.S. 668 (1996) — that courts\\n\\noccasionally treat nonpublic employees like public employees in\\n\\napplying the rule against political discrimination. See generally\\n\\n\\n 17Don't be fooled by the \\\"policymaker\\\" moniker. Anyone who\\nleads an organization (be it public or private) is a policymaker\\nin one sense, since she (supposedly) sets policy for the\\norganization. But that alone doesn't make her a policymaker for\\nFirst Amendment purposes — what counts is whether her duties make\\npolitical loyalty a suitable \\\"requirement for the effective\\nperformance\\\" of the job, like they do for a close advisor to a\\ngovernment official. See Branti, 445 U.S. at 518.\\n\\n\\n - 38 -\\n\\nUmbehr, 518 U.S. at 677 (employing the Court's \\\"existing framework\\n\\nfor government employee cases to independent contractors\\\"). Which\\n\\nmeans courts occasionally treat certain nonpublic employees like\\n\\npolicymakers too. See Ramírez v. Arlequín, 447 F.3d 19, 23 (1st\\n\\nCir. 2006) (citing Prisma Zona Exploratoria de Puerto Rico, Inc.\\n\\nv. Calderón, 310 F.3d 1 (1st Cir. 2002)).\\n\\n C\\n\\n Leaving aside for a moment the relevance of the\\n\\npolicymaker exception, I think Eves's complaint — alleging that\\n\\nGovernor LePage bullied GWH into canning Eves because of Eves's\\n\\npolitical affiliation — adequately pleads a constitutional\\n\\nviolation, when viewed through the correct legal lens. And none\\n\\nof LePage's arguments to the contrary hits home.\\n\\n 1\\n\\n Yes, the at-issue funds were to go to a private entity\\n\\nas an exercise of Governor LePage's discretionary grant-making\\n\\npower — a fact LePage harps on. But that hardly means the First\\n\\nAmendment places no limits on the exercise of that discretion.\\n\\nJust consider the contract cases. Neither involved the actual\\n\\nbreach of an existing contract. One involved the government's\\n\\ndiscretionary decision not to renew a contract. See Umbehr, 518\\n\\nU.S. at 671. The other involved the government's discretionary\\n\\ndecision to remove a company from an approved list of contractors.\\n\\nSee O'Hare Truck Serv., 518 U.S. at 714-15. So — and not to put\\n\\n\\n - 39 -\\n\\ntoo fine a point on it — the cases themselves involved\\n\\ndiscretionary decisions not to spend government money on certain\\n\\nvendors. Yet the Supreme Court still thought these discretionary\\n\\ncalls could be sufficiently coercive to ground a political-\\n\\ndiscrimination claim. And the Court has never held that\\n\\ngovernment-imposed conditions on discretionary grant funding —\\n\\nwhich is exactly what we have here — are categorically immune from\\n\\nFirst Amendment challenges. See generally Agency for Int'l Dev.\\n\\nv. Alliance for Open Soc'y Int'l, Inc., 570 U.S. 205, 214 (2013)\\n\\n(stating that \\\"[i]n some cases, a funding condition can result in\\n\\nan unconstitutional burden on First Amendment rights\\\").18\\n\\n 2\\n\\n Governor LePage plays up the fact that the funds he\\n\\nwould've impounded hadn't yet been appropriated — what we have, he\\n\\nemphasizes, is a threatened funding cut-off, rather than an actual\\n\\none. But this fact alone doesn't give him carte blanche to base\\n\\nhis funding decisions on the partisan affiliation of the entity's\\n\\nchosen leader. Take, for example, a case from a sibling circuit\\n\\nwhere the governor publicly \\\"threaten[ed] a political rival and\\n\\nprominent businessman\\\" with greater regulatory scrutiny simply\\n\\n\\n 18\\n The situation of course might be different in a case where,\\nunlike here, the government chooses not to grant funds to an entity\\nthat hasn't previously received and relied on a particular funding\\nsource. See Prisma Zona Exploratoria de Puerto Rico, Inc., 310\\nF.3d at 7 & n.3 (noting that the Supreme Court hasn't spoken\\ndefinitively on that issue, and collecting circuit cases).\\n\\n\\n - 40 -\\n\\nbecause the businessman publicly opposed one of his proposals.\\n\\nSee Blankenship v. Manchin, 471 F.3d 523, 525-27 (4th Cir. 2006).\\n\\nAs the circuit court persuasively explained, an official's\\n\\nthreatened use of governmental power may be coercive enough to\\n\\nsupport a First Amendment retaliation claim if the threatened\\n\\naction is sufficiently \\\"imminent.\\\" See id. at 533.\\n\\n And I know no reason why a threat to impound funds must\\n\\nbe deemed inherently noncoercive and thus completely immune from\\n\\nFirst Amendment scrutiny just because the threat hasn't been\\n\\nactualized. A threat to regulate, after all, is accomplished\\n\\nmerely through words. And even if it never takes actual effect,\\n\\nit can be a powerful means of exercising coercive governmental\\n\\npower, because of the harm that'll necessarily follow if the\\n\\nthreat's recipient doesn't take it seriously — ultimately it's\\n\\ncoercion that matters for First Amendment purposes, not the\\n\\nparticular means by which coercion is exercised. See Ramírez, 447\\n\\nF.3d at 22 (holding that a government generally \\\"may not coerce\\n\\npersons into supporting a political party or punish them for\\n\\nexercising their right of association\\\").\\n\\n So if the threatened funding cut-off is similarly likely\\n\\nto exert undue influence on the funding recipient, then I can't\\n\\nsee why the First Amendment wouldn't limit the grounds on which\\n\\nthe government could base the cut-off. And Eves has alleged that\\n\\nthe threatened cut-off was coercive in just that way, given GWH's\\n\\n\\n - 41 -\\n\\npast reliance on the at-issue funds and its dependence on those\\n\\nfunds for its future operations. It's thus reasonable to conclude\\n\\n— at least under the facts alleged — that LePage made the threat\\n\\nprecisely because of the influence that he thought the threat would\\n\\nhave on GWH.\\n\\n 3\\n\\n Governor LePage notes how the target of his threats\\n\\nwasn't the person the funding recipient (GWH) selected as its\\n\\npresident (Eves) but rather the funding recipient itself. That\\n\\nLePage conditioned his threat on GWH's dumping Eves because of\\n\\nEves's party affiliation confirms he based his threat on Eves's\\n\\nparty affiliation — so this fact doesn't show the absence of a\\n\\nFirst Amendment violation, despite what LePage thinks. Anyway,\\n\\nto hold otherwise would simply encourage executives to maneuver\\n\\naround the constitutional limits the Supreme Court cases establish\\n\\n— as would our silence on whether such a funding condition is\\n\\npermissible.19\\n\\n On to step (2) then, the clearly-established-law step.\\n\\n\\n\\n 19LePage also says that regardless of the First Amendment's\\nprotections, he's safeguarded from suit under the doctrine of\\n\\\"absolute legislative immunity,\\\" see Bogan v. Scott-Harris, 523\\nU.S. 44, 54 (1998) — an argument not addressed in the en banc\\nopinion. Sure, LePage made his threats during the new budget's\\npassage. But his threats concerned the executive action he'd take\\nafter the budget's enactment — i.e., using his disbursement\\ndiscretion to not fund GWH. Which is why I agree with the district\\ncourt that absolute legislative immunity doesn't apply here.\\n\\n\\n - 42 -\\n\\n III\\n\\n A\\n\\n A right is \\\"clearly established\\\" if it's \\\"sufficiently\\n\\nclear that every reasonable official would have understood that\\n\\nwhat he is doing violates that right.\\\" Ashcroft v. al-Kidd, 563\\n\\nU.S. 731, 741 (2011) (citation and internal quotation marks\\n\\nomitted). This is a fair-warning standard — officials are liable\\n\\n\\\"for violating bright lines, not . . . for making bad guesses in\\n\\ngray areas.\\\" Belsito Commc'ns, Inc. v. Decker, 845 F.3d 13, 23\\n\\n(1st Cir. 2016) (quoting Rivera-Corraliza v. Morales, 794 F.3d\\n\\n208, 215 (1st Cir. 2015)); see also al–Kidd, 563 U.S. at 746\\n\\n(Kennedy, J., concurring) (emphasizing that qualified immunity\\n\\napplies if defendants have no \\\"'fair and clear warning' of what\\n\\nthe Constitution requires\\\" (quoting United States v. Lanier, 520\\n\\nU.S. 259, 271 (1997))).\\n\\n A factually on-point precedent certainly helps in\\n\\ndeciding what reasonable officials would know. But it's \\\"not\\n\\nnecessary . . . that the very action in question has previously\\n\\nbeen held unlawful.\\\" Ziglar v. Abbasi, 137 S. Ct. 1843, 1866\\n\\n(2017) (citation and internal quotation marks omitted). Rather,\\n\\nofficials lose their qualified immunity, \\\"even in novel factual\\n\\ncircumstances,\\\" if they committed a \\\"clear\\\" constitutional\\n\\nviolation, see Hope v. Pelzer, 536 U.S. 730, 738-39, 741 (2002) —\\n\\nas a case of ours pithily put it, when the \\\"coerciveness\\\" of the\\n\\n\\n - 43 -\\n\\nofficials' actions is \\\"patently\\\" obvious, \\\"no particular case\\\"\\n\\n(let alone a completely-on-point one) must've \\\"existed to put\\\"\\n\\nreasonable officials \\\"on notice\\\" of the actions'\\n\\n\\\"unconstitutionality.\\\" See Marrero-Méndez v. Calixto-Rodríguez,\\n\\n830 F.3d 38, 47 (1st Cir. 2016) (citation and internal quotations\\n\\nmarks omitted).\\n\\n And that's as it should be. \\\"[T]he easiest cases,\\\"\\n\\ncommon sense tells us, \\\"don't even arise.\\\" See K.H. ex rel. Murphy\\n\\nv. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (Posner, J.). For\\n\\nexample, there's \\\"never been a section 1983 case accusing welfare\\n\\nofficials of selling foster children into slavery.\\\" Id. Yet it\\n\\ndoesn't \\\"follow that if such a case arose, the officials would be\\n\\nimmune from damages liability because no previous case had found\\n\\nliability in those circumstances.\\\" Id.\\n\\n What matters ultimately is whether \\\"the relevant legal\\n\\nrights and obligations [were] particularized enough that a\\n\\nreasonable official\\\" could \\\"extrapolate from them and conclude\\n\\nthat a certain course of conduct will violate the law.\\\" See Savard\\n\\nv. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003) (en banc) (opinion\\n\\nof Selya, J., joined by Boudin, C.J., and Lynch and Howard, JJ.).\\n\\nAnd to that subject I now turn.\\n\\n B\\n\\n From the First Amendment decisions arrayed above (long\\n\\non the books when LePage acted) a sensible governor could\\n\\n\\n - 44 -\\n\\nextrapolate that he couldn't use his discretionary-spending power\\n\\nto intimidate a private entity into firing his political adversary,\\n\\njust to stick it to his adversary — unless (and to repeat) the\\n\\nadversary's job was a policymaking position. And a sensible\\n\\ngovernor could also surmise as much from a First Circuit opinion\\n\\n(issued well before the events in question), El Día, Inc. v.\\n\\nRosselló, 165 F.3d 106 (1st Cir. 1999).\\n\\n El Día, Inc. owns and publishes a Spanish-language daily\\n\\nnewspaper called El Nueva Día. Id. at 108. In 1997, El Nueva Día\\n\\nran some articles criticizing Puerto Rico's then-governor and his\\n\\nadministration. Id. Not willing to take this lying down, the\\n\\ngovernor and other officials ordered nearly two-dozen commonwealth\\n\\nagencies to stop advertising in El Nueva Día. Id. El Día, Inc.\\n\\nthen sued the responsible officials in federal court, alleging\\n\\nrestriction of its First Amendment rights. Id. Convinced the\\n\\ndefendants' actions, if proven, would violate clearly-established\\n\\nlaw, the district judge denied them qualified immunity at the\\n\\nmotion-to-dismiss stage. Id.\\n\\n Asking for a reversal, the defendants insisted that no\\n\\n\\\"'clearly established' First Amendment law\\\" barred them from\\n\\npulling discretionary \\\"government advertising\\\" from the paper as\\n\\npunishment for its less-than-flattering write-ups. See id. Not\\n\\nso, we said in 1999 (years before the happenings in Eves's case),\\n\\nin words that resonate here: \\\"[i]t would seem obvious that using\\n\\n\\n - 45 -\\n\\ngovernment funds\\\" as a stick to punish First Amendment activity\\n\\noffends the Constitution because \\\"[c]learly established law\\n\\nprohibits the government from conditioning the revocation of\\n\\nbenefits on a basis that infringes constitutionally protected\\n\\ninterests.\\\" Id. at 109-10. And for support we cited several\\n\\nSupreme Court opinions, including Umbehr. Id. at 110.\\n\\n Again putting aside the policymaker exception, I can't\\n\\nsee how the Governor of Puerto Rico (among other officials) — who\\n\\ndid basically the same thing alleged here (political retaliation\\n\\nthrough the withholding of discretionary funds) — could've known\\n\\nfrom the caselaw that his conduct crossed a constitutional line\\n\\nbut Governor LePage couldn't have.\\n\\n IV\\n\\n The only question left then is whether Eves held a\\n\\npolicymaking job with GWH, thus making his party affiliation\\n\\nsomething LePage could rely on in threatening to defund GWH. And\\n\\non that highly fact-dependent question, I agree with the en banc\\n\\ndecision on these points (fyi, I've lifted the following quotes\\n\\nfrom the en banc decision, though the emphasis is mine):\\n\\n Maine's legislature \\\"designated\\\" GWH \\\"the nonprofit\\n\\n charitable corporation with a public purpose to implement the\\n\\n Center,\\\" \\\"designat[ed]\\\" the Center \\\"a public entity,\\\" and\\n\\n left the governor with \\\"discretion to fund the Center.\\\"\\n\\n\\n\\n\\n - 46 -\\n\\n Also, and of great importance to me, \\\"GWH fulfills its public\\n\\n function of implementing the Center only by administering\\n\\n MeANS\\\" — indeed, Eves's counsel candidly (and commendably)\\n\\n \\\"conceded\\\" at en banc \\\"oral argument that the operation of\\n\\n MeANS is the only way in which the Center has been\\n\\n implemented.\\\"\\n\\n Plus, Eves identifies no clearly-established law that would\\n\\n deter a reasonable governor from believing the job of GWH\\n\\n president resembled that of \\\"a policymaker given GWH's\\n\\n statutory mandate to administer a public entity, the Center\\n\\n . . ., and its choice to do so solely through MeANS.\\\"20\\n\\n And after much reflection, I agree with the en banc\\n\\nopinion that in the \\\"unique\\\" circumstances of this case, a\\n\\nlevelheaded governor could've believed, even if wrongly, that the\\n\\njob of GWH president — the very \\\"highest\\\" post at GWH — resembled\\n\\nthat of a policymaker. Which suffices to secure qualified\\n\\nimmunity for LePage.\\n\\n\\n\\n\\n 20\\n Given how fact-dependent the policymaker analysis here is,\\nI agree with the en banc opinion that we — in exercising our sound\\ndiscretion — can decide the issue at step (2) of the qualified-\\nimmunity test. See Pearson, 555 U.S. at 236-37.\\n\\n\\n - 47 -\\n\\n V\\n\\n Circling back to first principles, I close with a\\n\\ncautionary note — one worth making given all the state-funds-\\n\\nreceiving entities out there.21\\n\\n The First Amendment typically bars public officials from\\n\\nthreatening to cut off funds to a previously-funded entity unless\\n\\nthe entity picks a leader to their liking — I say \\\"typically,\\\"\\n\\nbecause of the policymaker exception to the ban on politically-\\n\\nbased personnel decisions. See, e.g., Elrod, 427 U.S. at 355, 367\\n\\n(stressing that an official's conditioning employment on political\\n\\nloyalty is tantamount to a system of \\\"coerced belief,\\\" and\\n\\nconcluding that \\\"patronage dismissals\\\" are limited under the First\\n\\nAmendment to \\\"policymaking positions\\\"). And against the legal\\n\\nbackdrop discussed above, Eves's allegations (that Governor LePage\\n\\ncoercively engineered his firing from GWH as political payback)\\n\\nstate a sufficient First Amendment claim — but for the policymaker\\n\\nexception, which the en banc opinion correctly applies in declaring\\n\\nLePage qualifiedly immune.\\n\\n\\n\\n\\n 21 As examples, Eves's complaint mentions \\\"the Maine\\nAssociation of Substance Abuse Programs, Inc.; the Family Violence\\nAssistance Project; Bowdoin College; the Lobster Conservancy; the\\nMaine Island Trail Association; Next Step for Victims of Domestic\\nViolence[;] and Trout Unlimited\\\"; \\\"Maine Public Radio[;] all of\\nMaine's hospitals and nursing homes[;] and many of its homeless\\nshelters, social service providers, and private high schools.\\\"\\n\\n\\n - 48 -\\n\\n Let's never forget, though, that the policymaker\\n\\nexception is exactly what its name implies: an exception — and a\\n\\n\\\"narrow\\\" one at that — to the clearly-established rule against\\n\\npolitically-motivated firings. See Borzilleri v. Mosby, 874 F.3d\\n\\n187, 191 (4th Cir. 2017). And in dealing with the First Amendment\\n\\n— which protects some of our most cherished rights, see Williams\\n\\nv. Rhodes, 393 U.S. 23, 30-31 (1968) — courts must be ever-vigilant\\n\\nin ensuring that this limited exception doesn't swallow the rule.\\n\\nAnything less would deal a serious blow to the fundamental\\n\\nprinciples of our democracy.\\n\\n\\n\\n\\n - 49 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408543/\", \"author_raw\": \"Circuit Judges, join, concurring\"}]}"},"judge1":{"kind":"string","value":"HOWARD"},"judge2":{"kind":"string","value":"TORRUELLA"},"judge3":{"kind":"string","value":"STAHL"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"LYNCH; THOMPSON; KAYATTA; BARRON"},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4631290/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Mark W. EVES, Plaintiff, Appellant, v. Paul R. LEPAGE, Defendant, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\nNo. 16-1492\n\n MARK W. EVES,\n\n Plaintiff, Appellant,\n\n v.\n\n PAUL R. LEPAGE,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n [Hon. George Z. Singal, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Torruella, Stahl, Lynch, Thompson, Kayatta, and Barron,\n Circuit Judges.\n\n\n David G. Webbert, with whom Carol J. Garvan and Johnson,\nWebbert & Young, LLP were on brief, for appellant.\n Patrick Strawbridge, with whom Bryan K. Weir, Caroline A.\nCook, and Consovoy McCarthy Park PLLC were on brief, for appellee.\n\n\n Opinion En Banc\n\n\n\n June 19, 2019\n\n\n\n\n \n Judge Kayatta is recused and did not participate in\nconsideration of this matter.\n\n LYNCH, Circuit Judge. This court took this case en\n\nbanc, which then caused the withdrawal of the panel opinion, Eves\n\nv. LePage, 842 F.3d 133 (1st Cir. 2016), while we reconsidered the\n\ncase. A divided panel there had affirmed the district court's\n\ndismissal of this First Amendment retaliation suit brought by the\n\nthen-Speaker of Maine's House of Representatives, Mark Eves,\n\nagainst the then-Governor of Maine, Paul LePage.1 Eves alleged\n\nthat, while governor, LePage leveraged discretionary state\n\nfunding, in a yet unpassed state budget, to coerce an organization,\n\nGood Will-Hinckley (\"GWH\"), to terminate Eves's upcoming\n\nemployment as its President.\n\n In his en banc petition, Eves has narrowed his legal\n\nclaims by dropping all damages claims for the alleged violation of\n\nhis free speech rights by LePage. Eves continues to pursue damages\n\nagainst LePage for his claim of political affiliation\n\ndiscrimination, which is now the only damages claim before us.\n\n The en banc court holds that LePage, on these unique\n\nfacts, is entitled to qualified immunity because a reasonable\n\ngovernor in LePage's situation could have believed Eves's position\n\nas the new President of GWH to be a policymaking position for which\n\npolitical affiliation was relevant. We do not reach LePage's\n\n\n\n\n 1 LePage left office on January 2, 2019, and Eves left\noffice on December 2, 2016. We nonetheless generally refer to\nthem as Governor LePage and Speaker Eves.\n\n\n - 2 -\n\narguments that he is also entitled to immunity on other grounds.\n\nWe also reinstate in part our prior panel opinion and affirm the\n\ndismissal of this action.\n\n I.\n\n Background\n\n The qualified immunity issues presented in this case are\n\nultimately issues of law, which receive de novo review. Elder v.\n\nHolloway, 510 U.S. 510, 516 (1994). Like the district court, we\n\nassume the truth of the complaint's well-pleaded facts and draw\n\nall reasonable inferences in Eves's favor.2 See Ashcroft v. Iqbal,\n\n556 U.S. 662, 678-79 (2009); Feliciano-Hernández v. Pereira-\n\nCastillo, 663 F.3d 527, 532 (1st Cir. 2011) (quoting New York v.\n\nAmgen Inc., 652 F.3d 103, 109 (1st Cir. 2011)).\n\nA. Maine's Government and Budget Process\n\n We begin with background information on Maine law as of\n\nJune 2015, the time of the events in this case, and other facts as\n\nfound by the district court.\n\n\n\n\n 2 We consider Eves's Second Amended complaint (\"the\ncomplaint\"), documents annexed to it, materials fairly\nincorporated within the complaint, and Maine state law, which is\nsubject to judicial notice. See Rodi v. S. New Eng. Sch. of Law,\n389 F.3d 5, 12 (1st Cir. 2004). We do not consider materials not\nin the complaint, which the district court held could not be\nproperly considered. Eves has not appealed from that portion of\nthe district court's decision and has waived any argument on the\nissue.\n\n\n - 3 -\n\n Serving in the Maine Legislature is not a full-time job\n\nfor most representatives. The legislature typically sits twice\n\nin each session: once from December to June in year one, then again\n\nfrom January to April in year two. See Me. Rev. Stat. Ann.\n\n(\"M.R.S.A.\") tit. 3, § 2. A legislator's salary was $24,056,\n\nspread over the two years, plus a $38 per diem, when the\n\nlegislature was active, \"for housing or mileage and tolls.\" Eves\n\nv. LePage, No. 1:15-cv-300, 2016 WL 1948869, at *2 (D. Me. May 3,\n\n2016). Most legislators have at least one other source of income,\n\noften in the private sector. Id. In fact, \"[n]early all\n\nlegislators depend on a career outside of the State House to\n\nprovide for their families.\" Id. at *5 (relaying statement by\n\nMaine Senate President Mike Thibodeau).\n\n Maine's biennial budget process starts when the\n\nDepartment of Administrative and Financial Services \"prepare[s]\n\nand submit[s] . . . a state budget document\" to the governor,\n\nhaving considered submissions from various agencies and policy\n\ncommittees. M.R.S.A. tit. 5, § 1662. The governor then reviews\n\nthe draft budget, alters it, and sends it to the legislature before\n\nthe statutory deadline \"in January of the first regular legislative\n\nsession.\" Id. § 1666. The legislature must \"enact a budget no\n\nlater than 30 days prior to the date of adjournment prescribed\" by\n\nlaw. Id. § 1666-A. The legislature's proposed budget then\n\nreturns to the governor, who has line-item veto power, permitting\n\n\n - 4 -\n\nhim to reduce \"any dollar amount\" in the budget. Me. Const. art.\n\nIV, pt. 3, § 2-A. The legislature can override any such line-item\n\nvetoes with a simple majority of both the House and the Senate.\n\nId. The governor can also veto the entire budget, like any other\n\npiece of legislation, in which case a two-thirds majority of both\n\nthe House and Senate is necessary to override the veto. Id. art.\n\nIV, pt. 3, § 2.\n\n The events in this case, which occurred mostly in June\n\n2015, arose in the midst of the biennial budget process and\n\ninvolved serious political conflict between Governor LePage and\n\nthe legislature. The complaint sets forth reports from others\n\nabout statements LePage made about Speaker Eves. Those\n\nstatements, which are at the heart of this case, occurred on June\n\n5, June 8, and June 9, before the legislature had passed any\n\nbudget. The complaint also sets forth allegations about later\n\nstatements by LePage on June 29, July 7, and July 30 as to his\n\nreasons for his actions.\n\n In a press conference on May 29, 2015, LePage stated\n\nthat he planned to veto \"every bill sponsored by a Democrat\" for\n\nthe rest of his term in office \"unless the Legislature agreed to\n\nsupport his plan to have a referendum vote on eliminating Maine's\n\nincome tax.\" Eves, 2016 WL 1948869, at *4. LePage did, in fact,\n\nveto ten bills on June 8, 2015, stating that he had done so purely\n\nbecause of their Democratic sponsorship.\n\n\n - 5 -\n\n After the legislature passed a budget on June 17, 2015,\n\nLePage issued sixty-four line-item vetoes, each of which the\n\nlegislature overrode on June 18 and 19, 2015. On June 29, 2015,\n\nLePage vetoed the entire budget. The legislature also overrode\n\nthat veto on June 30, enacting the budget for fiscal years 2016\n\nand 2017 into law. The enacted budget included discretionary\n\nfunding for GWH, which was disbursed to GWH after Speaker Eves's\n\ncontract with GWH was terminated.\n\nB. Good Will-Hinckley, The Center of Excellence for At-risk\n Students (\"the Center\"), and The Maine Academy of Natural\n Sciences (\"MeANS\")\n\n GWH is a nonprofit charitable organization, which serves\n\na public purpose, located in Fairfield, Maine. The nonprofit aims\n\nto provide services to at-risk children throughout the state.\n\nFounded in 1889 as a \"farm, school and home for needy boys,\" GWH\n\nnow has a broader mission and a portfolio encompassing a \"college\n\nstep-up program,\" a \"Learning Center for youth with emotional or\n\nbehavioral challenges,\" a nutrition program, a library, and a\n\nmuseum. Id. at *2. The organization has long depended on both\n\nprivate donations and government grants.\n\n GWH was designated by the Maine Legislature in 2009 \"to\n\nserve as the nonprofit charitable corporation with a public purpose\n\nto implement the Center of Excellence for At-risk Students,\" a\n\nstatutorily-established public entity. Id. at *3; see 2009 Me.\n\nLegis. Serv. Ch. 296 (West) (codified at M.R.S.A. tit. 20-A,\n\n\n - 6 -\n\n§§ 6951-54). The legislature gave the governor discretion to fund\n\nthe Center. See M.R.S.A. tit. 20-A, § 15689-A.20. In order to\n\nimplement the Center, GWH opened a charter school in 2012, called\n\nthe Maine Academy of Natural Sciences (\"MeANS\"), which it continues\n\nto operate. Eves's counsel conceded at oral argument that the\n\noperation of MeANS is the only way in which the Center has been\n\nimplemented.\n\n The complaint is silent as to whether MeANS is considered\n\na \"public\" charter school and whether state funding intended for\n\nMeANS is simply passed on from GWH to MeANS as such. The complaint\n\ncontains no allegations as to the exact legal relationship between\n\nthe Center, MeANS, and GWH, and no allegations as to any contracts\n\nbetween them. Nor has Eves appended to the complaint any such\n\ncontracts, nor quoted from them. However, three things are clear:\n\n(1) although MeANS has its own board and principal, the school\n\nrelies on \"discretionary state funding pursuant to its [statutory]\n\ndesignation as 'the Center for Excellence for At-risk Students,'\"\n\nEves, 2016 WL 1948869, at *3 (citing M.R.S.A. tit. 20-A, § 15689-\n\nA.20); (2) GWH fulfills its public function of implementing the\n\nCenter only by administering MeANS, see 2009 Me. Legis. Serv. Ch.\n\n296, § 2; and (3) the Center is, by legislative designation, a\n\npublic entity, see id.\n\n The Maine state budget for fiscal years 2014 and 2015\n\n-- which covered the period from July 1, 2013 to June 30, 2015 --\n\n\n - 7 -\n\nhad allocated $1,060,000 in discretionary funding to GWH for the\n\npurpose of operating MeANS. Governor LePage disbursed all of the\n\ndiscretionary funding in that period; however, during that period,\n\nGWH was under a different President: first, Glenn Cummings, who\n\nwas himself a former Speaker of the Maine House and a Democrat,\n\nand then under an interim President, Richard Abramson. The 2015–\n\n2017 budget under debate in spring 2015 contained a discretionary\n\nappropriation of $1,060,000 to GWH to be paid in quarterly\n\ninstallments, as in previous years.\n\nC. Selection of Speaker Eves as President of GWH\n\n GWH began searching for a successor after Glenn Cummings\n\nresigned as President of GWH in September 2014. Eves, who was\n\nthen Speaker of the Maine House, was one of the nineteen\n\napplicants.3\n\n GWH's eight-member search committee interviewed Eves on\n\nApril 24, 2015. He visited the campus as one of three finalists,\n\nand on April 30, the GWH Senior Leadership Team unanimously\n\nrecommended him as the best of the three. The Team's memo \"cited\n\nhis 'extensive clinical experience,' his 'balance of executive\n\nadministration and fundraising experience,' and his 'leadership\n\n\n 3 Eves had served as a representative in the House since\n2008, and was Speaker for four terms from 2012 to 2016. Eves also\nhad fifteen years of professional experience in behavioral health\nand family therapy, in both clinical and administrative roles.\nSince moving from Kentucky to Maine in 2003, Eves worked in that\nfield, even while serving in the legislature.\n\n\n - 8 -\n\nstyle and polished approach' as reasons\" for their conclusion.\n\nEves, 2016 WL 1948869, at *3. After Eves interviewed with the\n\nfull boards of GWH and MeANS on May 15, GWH's Board voted\n\nunanimously to offer him the job of GWH President.\n\n On June 5, 2015, Eves, who was then still the Speaker of\n\nthe Maine House, entered into a two-year employment agreement with\n\nGWH, beginning on July 1, 2015. Id. at *4. That agreement\n\ncontained a \"for-cause termination provision,\" and \"no conditions\n\nor contingencies\" related to any actions or funding decisions by\n\nthe State. Id. Most of Eves's employment at GWH would overlap\n\nwith his final term as Speaker. GWH announced Eves as its new\n\nPresident on June 9.\n\nD. Governor LePage's Intervention\n\n On June 5, Governor LePage learned that GWH had decided\n\nto hire Speaker Eves and promptly called GWH's interim President.\n\nId. According to the complaint, LePage stated \"that he was\n\nextremely upset\" about the news and \"used profanity to describe\n\n[Speaker Eves] and his work.\" That same day or \"soon after,\"\n\nLePage also sent a handwritten note to GWH's Board Chair, which,\n\nas characterized in the complaint, \"referred very negatively to\n\nSpeaker Eves\" and called him a \"hack.\" This note was not appended\n\nto the complaint. The Board Chair's belief, after reading the\n\nnote, was \"that GWH would lose $1,060,000 in [discretionary] state\n\nfunding if it retained Eves as its new President.\" Id.\n\n\n - 9 -\n\n On June 8, Governor LePage \"sent a public letter to the\n\nBoard Chairs of GWH and MeANS, urging that they reconsider.\" Id.\n\nAccording to the complaint, the letter characterized Eves as \"a\n\nlongtime opponent of public charter schools\" who had fought against\n\n\"every effort to reform Maine's government.\" Id. This letter was\n\nalso not appended to the complaint.\n\n The GWH Board, \"which includes people of various\n\npolitical affiliations,\" discussed the letter and \"agreed that\n\ntheir selection of Speaker Eves [had been] well-supported\n\nand . . . not based on political considerations.\" Id.\n\n On June 8, LePage also received a call from Gregory\n\nPowell, the Chairman of the Board of Trustees of the Harold Alfond\n\nFoundation (\"the Foundation\"), who was responding to a June 5\n\nvoicemail from LePage. The complaint alleges Powell was left with\n\nthe impression that LePage was \"withdrawing all support,\"\n\nincluding financial support, from GWH as long as Eves remained as\n\nPresident of the organization. The complaint alleges that Powell\n\nresponded to the news by sending a letter to GWH's Board on June\n\n18, warning them that the Foundation had \"serious concern[s]\n\n. . . regarding [GWH's] future financial viability\" if LePage were\n\nto follow through on his threat to withhold the $1,060,000 in\n\ndiscretionary state funding. Those concerns, Powell further\n\nwarned, made the Foundation uneasy about committing to a $2,750,000\n\n\n\n\n - 10 -\n\ngrant that the Foundation had been planning to give to GWH.\n\nPowell's letter was not appended to the complaint.\n\n On or about June 9, the complaint alleges Governor LePage\n\ntold the Acting Commissioner of the Department of Education not to\n\nsend any more payments to GWH \"that [were] not required by law.\"\n\nThe Commissioner, in response, froze $132,500 in discretionary\n\nfunding that was scheduled to be sent to GWH at the beginning of\n\nthe next quarter (on July 1), assuming the enacted budget contained\n\nan appropriation of those funds. As of June 9, the legislature\n\nhad not yet passed the budget or appropriated any funding for GWH.\n\nIt would have been a violation of Maine law to have sent the\n\n$132,500 to GWH before the budget was final and enacted. See\n\nM.R.S.A. tit. 5, § 1543.\n\n The lawyers for Eves and Governor LePage spoke on June\n\n22. Eves's lawyer asked LePage to withdraw his threats, but LePage\n\nrefused to change his stance. However, LePage took no further\n\nsteps \"to reduce or eliminate the $1,060,000 in discretionary funds\n\nallotted in the proposed state budget for GWH.\" Eves, 2016 WL\n\n1948869, at *5.\n\n After that conversation between the attorneys, GWH\n\nterminated Speaker Eves's employment contract on June 24, one week\n\nbefore his planned July 1 start date. Eves was Speaker of the\n\nMaine House at the time. Eves immediately stated publicly that\n\n\"his firing was caused by LePage's threat to withhold funding.\"\n\n\n - 11 -\n\nId. Months later, on October 15, GWH's Board Chair stated in a\n\nlegislative hearing that Eves's employment would not have been\n\nterminated but for Governor LePage's intervention. Some of Eves's\n\ncolleagues in the legislature also spoke out. State Senate\n\nPresident Mike Thibodeau, a Republican, publicly stated that he\n\nwas \"very saddened by this situation and shocked by what is being\n\nalleged. Nearly all legislators depend on a career outside of the\n\nState House to provide for their families.\" Id.\n\n Initially, Governor LePage declined to confirm or deny\n\nthat he had made any statement to influence GWH's decision-making\n\nprocess. However, as the complaint alleges, when local reporters\n\ninterviewed LePage on June 29 and asked whether he had \"threatened\n\nto withhold money\" from GWH, he responded:\n\n Yeah, I did! If I could, I would! Absolutely; why\n wouldn't I? Tell me why I wouldn't take the taxpayer\n money, to prevent somebody to go into a school and\n destroy it. Because his heart's not into doing the\n right thing for Maine people.\n\nIn a radio address on July 7, LePage further explained:\n\n [Eves] worked his entire political career to oppose and\n threaten charter schools in Maine. He is the mouthpiece\n for the Maine Education Association. Giving taxpayers'\n money to a person who has fought so hard against charter\n schools would be unconscionable.\n\nAnd in another interview on July 30, LePage called Eves \"a plant\n\nby the unions to destroy charter schools.\" LePage drew an analogy:\n\n\"[O]ne time I stepped in . . . when a man was beating his wife.\n\n\n\n\n - 12 -\n\nShould I have stepped in? Legally, no. But I did. And I'm not\n\nembarrassed about doing it.\"\n\nE. Procedural History of This Litigation\n\n Eves filed this lawsuit on July 30, 2015, and then filed\n\na First Amended Complaint on December 18, 2015. Governor LePage\n\nmoved to dismiss the suit on January 5, 2016, arguing in his\n\nsupporting memo that the complaint failed to state any claim and\n\nthat the subject matter of the lawsuit was \"a political dispute\n\nthat does not belong in court.\" He explicitly asserted, inter\n\nalia, that his actions as to Eves were protected by both absolute\n\nand qualified immunity. On April 13, 2016, Eves was granted leave\n\n(without opposition) to file a Second Amended Complaint.4\n\n On May 3, 2016, the district court issued an opinion\n\ngranting Governor LePage's motion to dismiss. Eves, 2016 WL\n\n1948869, at *1. The court entered judgment for LePage the next\n\nday, and Eves filed a notice of appeal that same day.\n\n\n\n\n 4 The Second Amended Complaint contained five claims\nagainst Governor LePage: four federal law counts under 42 U.S.C.\n§ 1983 for violations of Eves's rights to political affiliation,\nfree speech, freedom of association, and procedural due process,\nand a fifth claim under state law for intentional interference\nwith contract. As relief, Eves requested: (1) a declaratory\njudgment; (2) an injunction compelling Governor LePage to\n\"permanently withdraw his illegal threat\" to GWH and \"cease using\nhis authority to illegally retaliate against Eves or private\norganizations that are prospective employers or employers of\nEves\"; and (3) damages.\n\n\n - 13 -\n\n On November 22, 2016, a divided panel of this court\n\naffirmed the district court's dismissal of Eves's equitable\n\nclaims, and dismissed his § 1983 damages claims on the basis of\n\nqualified immunity. Eves, 842 F.3d at 144-45. It also directed\n\nthe district court to dismiss Eves's state law claim without\n\nprejudice. Id. at 146. Eves petitioned for rehearing en banc,\n\nand his petition was granted on January 19, 2018.\n\n Eves has narrowed his claims for en banc review. The\n\nconduct by Governor LePage he is now challenging is limited to\n\nLePage's alleged threat to withhold discretionary funding, and the\n\nstop order that was placed, before the budget was finalized, on\n\nGWH's first quarterly payment for fiscal year 2015. Eves is no\n\nlonger pursuing damages for his free speech claim, but continues\n\nto pursue damages for political affiliation discrimination. Eves\n\nis also still pursuing equitable relief, especially declaratory\n\nrelief.\n\n II.\n\n We Hold that Qualified Immunity Bars Eves's Claim for Damages\n for Political Affiliation Discrimination\n\nA. Qualified Immunity Framework\n\n The Supreme Court has long established that, when sued\n\nin their official capacities, government officials are immune from\n\ndamages claims unless \"(1) they violated a federal statutory or\n\nconstitutional right, and (2) the unlawfulness of their conduct\n\n\n\n - 14 -\n\nwas 'clearly established at the time.'\" District of Columbia v.\n\nWesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566\n\nU.S. 658, 664 (2012)). The second step of the qualified immunity\n\ninquiry, in turn, involves several factors.\n\n The plaintiff must demonstrate that \"the law was\n\n'\"sufficiently clear\" [such] that every \"reasonable official would\n\nunderstand that what he is doing\" is unlawful.'\" Id. at 589\n\n(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The\n\nSupreme Court has \"repeatedly told courts\" not to define the\n\nqualified immunity inquiry \"at a high level of generality.\" City\n\n& Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775-76 (2015) (quoting\n\nal-Kidd, 563 U.S. at 742). Rather, clearly established law must\n\ndefine \"the right allegedly violated . . . in a 'particularized'\n\nsense so that the 'contours' of the right are clear to a reasonable\n\nofficial.\" Reichle, 566 U.S. at 665 (quoting Anderson v.\n\nCreighton, 483 U.S. 635, 640 (1987)).\n\n Qualified immunity, the Court has reinforced, is\n\nintended to \"protect[] 'all but the plainly incompetent or those\n\nwho knowingly violate the law.'\" White v. Pauly, 137 S. Ct. 548,\n\n551 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).\n\nAccordingly, although there need not be \"a case directly on\n\npoint, . . . existing precedent must have placed the statutory or\n\nconstitutional question beyond debate.\" al-Kidd, 563 U.S. at 741.\n\nThe Supreme Court has \"not yet decided what precedents -- other\n\n\n - 15 -\n\nthan [its] own -- qualify as controlling authority.\" Wesby, 138\n\nS. Ct. at 591 n.8. It is enough \"for qualified immunity purposes\"\n\nthough that under existing Supreme Court case law, it is \"at least\n\narguable\" that LePage's actions were constitutional. Reichle, 566\n\nU.S. at 669.\n\n The Supreme Court has also repeatedly emphasized that\n\nthe qualified immunity inquiry \"focus[es] on 'the objective legal\n\nreasonableness of an official's acts.'\" Crawford-El v. Britton,\n\n523 U.S. 574, 590 (1998) (quoting Harlow v. Fitzgerald, 457 U.S.\n\n800, 819 (1982)). \"Evidence concerning the defendant's subjective\n\nintent is simply irrelevant\" to the second step of the inquiry.\n\nId. at 588. As such, if an objectively reasonable official in\n\nGovernor LePage's shoes \"might not have known for certain that\n\n[his] conduct was unlawful,\" then LePage \"is immune from\n\nliability.\" Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017). A\n\ndecision of qualified immunity on a motion to dismiss is\n\nappropriate here.5\n\n\n 5 We reject Eves's contention that qualified immunity\nshould be decided at a later stage of litigation, not on a motion\nto dismiss. That would turn well-settled precedent on its head.\nThe Supreme Court has repeatedly \"stressed the importance of\nresolving immunity questions at the earliest possible stage [of\nthe] litigation.\" Wood v. Moss, 572 U.S. 744, 755 n.4 (2014)\n(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).\nThe Court has affirmed the dismissal of multiple First Amendment\nclaims on the basis of qualified immunity. See, e.g., Ziglar, 137\nS. Ct. at 1869; Wood, 572 U.S. at 756-64; Iqbal, 556 U.S. at 686.\nWe have as well. See, e.g., Air Sunshine, Inc. v. Carl, 663 F.3d\n27, 32-37 (1st Cir. 2011); Decotiis v. Whittemore, 635 F.3d 22,\n\n\n - 16 -\n\nB. Qualified Immunity Analysis\n\n We move directly to the second step of the qualified\n\nimmunity analysis and ask whether Governor LePage's alleged\n\nconduct violated \"clearly established\" federal law as to political\n\naffiliation discrimination. Applying this objective test, we\n\nconclude that the law on which Eves relies was not clearly\n\nestablished such that a reasonable governor in LePage's situation\n\nwould have concluded that the constitutional question and the\n\npolicymaker exception was placed beyond doubt in Eves's favor.6\n\nThere was no \"controlling authority\" or even a \"consensus of cases\n\nof persuasive authority,\" Wilson v. Layne, 526 U.S. 603, 617\n\n(1999), that would lead to the conclusion that Governor LePage can\n\nbe denied immunity.\n\n Even if we were to assume that Governor LePage induced\n\nGWH to remove Eves solely because Eves was a Democrat -- and not,\n\neven in part, because of LePage's view of Eves's policy positions7\n\n\n36-38 (1st Cir. 2011); Torres-Rivera v. Calderón-Serra, 412 F.3d\n205, 214-15 (1st Cir. 2005).\n 6 Eves argues that because political discrimination cases\noften involve \"a calculated decision,\" and not a split-second\njudgment call as in some Fourth Amendment cases, a less-protective\nstandard of qualified immunity should apply. He cites no law to\nthat effect, and we know of none. As a matter of fact, the\ninferences from the complaint are that LePage was under some time\npressure to act (if not a split-second decision), and there were\nat least two reasons for that: (1) the budget was in the process\nof being decided on within days, and (2) the date of Eves's\nappointment was looming.\n 7 We reiterate that the complaint expressly alleges that\n\n\n - 17 -\n\n-- for the reasons that follow, LePage could have reasonably\n\nbelieved that the President of GWH was a \"policymaker\" who could\n\nbe lawfully discharged on the basis of his political affiliation.8\n\n The Supreme Court has long held, beginning with Elrod v.\n\nBurns, 427 U.S. 347 (1976) (plurality opinion), and Branti v.\n\nFinkel, 445 U.S. 507 (1980), that there is no right to protection\n\non the grounds of political affiliation where political\n\naffiliation is legitimately relevant to the employee's job. This\n\ncourt has extended the \"policymaker exception,\" in certain\n\ncircumstances, beyond public offices to nongovernment employees.\n\nSee Ramírez v. Arlequín, 447 F.3d 19, 23 (1st Cir. 2006); Prisma\n\nZona Exploratoria de Puerto Rico, Inc. v. Calderón, 310 F.3d 1, 3,\n\n8 (1st Cir. 2002).\n\n In Elrod, a plurality of the Supreme Court specifically\n\nnoted that consideration of political affiliation for policymaking\n\npositions is justified to prevent \"representative government\" from\n\nbeing \"undercut by tactics obstructing the implementation of\n\n\nLePage communicated his intent to oppose further discretionary\nfunding for GWH unless it removed Eves, because Eves was thought\nby LePage to be beholden to unions, to oppose charter schools, and\nto seek to undercut the mission of MeANS.\n 8 LePage did not waive the argument that he is entitled to\nqualified immunity even if he committed a reasonable mistake of\nlaw. \"The purpose of qualified immunity is to protect reasonable,\nif mistaken, decision making by government officials\" when the law\nis unclear. López-Quiñones v. P.R. Nat'l Guard, 526 F.3d 23, 27\n(1st Cir. 2008) (citation omitted). As such, it is sufficient\nthat LePage argued the law was not clearly established as to\nwhether the President of GWH is a policymaking position.\n\n\n - 18 -\n\npolicies of the . . . administration, policies presumably\n\nsanctioned by the electorate.\" 427 U.S. at 367. Elrod also\n\nrecognized that \"[n]o clear line can be drawn between policymaking\n\nand nonpolicymaking positions.\" Id. Rather, \"[t]he nature of\n\nthe responsibilities [of the position] is critical.\" Id.\n\n Branti reaffirmed that consideration of political\n\naffiliation is permissible where \"affiliation is an appropriate\n\nrequirement for the effective performance of the public office\n\ninvolved.\"9 445 U.S. at 518 (emphasis added). There, the Court\n\nheld that two county assistant public defenders, who the lower\n\ncourts had found were terminated solely because they were\n\nRepublicans, had a viable First Amendment claim against the newly\n\nelected public defender. Branti, 445 U.S. at 520. Quoting Elrod\n\nin part, the Court reasoned that the assistant public defenders\n\nwere not policymakers subject to political discharge because they\n\nhad \"'very limited, if any, responsibility' with respect to the\n\noverall operation of the public defender's office.' They [also]\n\ndid not 'act as advisors or formulate plans for the implementation\n\nof the broad goals of the office.'\" Id. at 511 (quoting Finkel\n\nv. Branti, 457 F. Supp. 1284, 1291 (S.D.N.Y. 1978)).\n\n\n 9 A later case extended Branti and Elrod's protections to\nemployment decisions other than discharge for what were low-level\nemployees. See Rutan v. Republican Party of Ill., 497 U.S. 62,\n79 (1990). Rutan would not have provided any notice to LePage\nthat his actions were unconstitutional. No claim was made there\nthat such employees held policymaking positions.\n\n\n - 19 -\n\n Here, the President of GWH can be reasonably understood\n\nto be a policymaker given GWH's statutory mandate to administer a\n\npublic entity, the Center for Excellence of At-risk Students, and\n\nits choice to do so solely through MeANS. President was the\n\nhighest position at GWH. Further, the job description, as set\n\nforth in the complaint, could lead a reasonable governor to\n\nconclude that the position involved \"act[ing] as an adviser\" and\n\n\"formulat[ing] plans for the implementation\" of the Center.\n\nBranti, 445 U.S. at 511. The job qualifications emphasized\n\n\"administrative experience in strategic planning . . . and\n\nexperience working with legislators, state policy makers, and\n\ngovernmental agencies.\" (Emphasis added.)\n\n Indeed, the complaint itself alleges that Eves was\n\nselected specifically for his \"statewide policy and leadership\n\nexperience as Speaker of the Maine House of Representatives.\"\n\nCoupled with the fact that the previous GWH President had also\n\nbeen the Speaker of the Maine House, this could lead a reasonable\n\ngovernor to conclude that policymaking, including working with\n\nelected policymakers, was an important aspect of the GWH\n\nPresident's job.\n\n A reasonable governor could also conclude that the\n\nPresident of GWH was \"in a position to thwart\" the policy\n\nobjectives of \"the in-party.\" Elrod, 427 U.S. at 367. In\n\ncarrying out its public function, GWH is mandated by statute to\n\n\n - 20 -\n\n\"collaborate with the department [of education], public school\n\nadministrators and other public and private organizations with an\n\ninterest in the support and education of at-risk students.\"\n\nM.R.S.A. tit. 20-A, § 6952. Given that there is clearly room for\n\nprincipled and partisan disagreement about how best to administer\n\nMeANS and collaborate with various stakeholders, a reasonable\n\ngovernor could conclude that \"[political] affiliation is an\n\nappropriate requirement\" for the position of GWH President.\n\nBranti, 445 U.S. at 518. In fact, Governor LePage articulated\n\nthis exact concern, as evidenced by allegations in the complaint\n\nthat LePage stated Eves would use his office to oppose LePage's\n\nagenda of promoting charter schools and to promote policies favored\n\nby the teachers' union.\n\n Further, the fact that GWH’s funding for MeANS is left\n\nentirely to the governor's discretion is yet another reason why a\n\nreasonable governor could have believed that the President of GWH\n\nwas an important policymaking position. The legislature specified\n\nthat the discretionary state funding GWH receives to implement the\n\nCenter is expressly subject to the satisfaction of the Commissioner\n\nof Education (and by extension, the governor). See M.R.S.A. tit.\n\n20-A, § 15689-A.20. This suggests that the operation of MeANS is\n\na public function closely tied to the \"implementation of policies\n\nof [LePage's] administration.\" Elrod, 427 U.S. at 367. And a\n\nreasonable governor could have believed that a significant reason\n\n\n - 21 -\n\nthe funding of the Center was left to whoever was the occupant of\n\nthe governor's job was to ensure that, in implementing the Center,\n\nGWH would follow that administration's educational policy\n\ndirectives.\n\n Turning to First Circuit law interpreting the\n\npolicymaker exception, we reach the same qualified immunity\n\noutcome. Our circuit precedent has consistently held that\n\npositions of far less responsibility and significance than that of\n\nthe President of GWH were policymaking positions. See O'Connell\n\nv. Marrero-Recio, 724 F.3d 117, 120 (1st Cir. 2013) (human\n\nresources director of agency); Uphoff Figueroa v. Alejandro, 597\n\nF.3d 423, 426 (1st Cir. 2010) (administrator of agency's legal\n\noffice); Flynn v. City of Bos., 140 F.3d 42, 45 (1st Cir. 1998)\n\n(\"the regional director of an administrative agency, the municipal\n\nsecretary in a mayor's office, an officer in charge of human\n\nresources, a director of public relations, a superintendent of\n\npublic works, a director of a city's federal programs office, and\n\na director of a satellite office of the Massachusetts Secretary of\n\nState\" (citations omitted)); Roman Melendez v. Inclan, 826 F.2d\n\n130, 133-34 (1st Cir. 1987) (regional director of agency in charge\n\nof maintaining public buildings).10 Further, we have held that\n\n\n 10 Roman Melendez in turn cited to eight First Circuit\ncases:\n [I]n every case concerning regional directors\n of government agencies in Puerto Rico, we have\n\n\n - 22 -\n\n\"the government's policymaking interest [can] override the First\n\nAmendment protection against political discrimination, even where\n\nthe plaintiff [is] not a government employee.\" Ramírez, 447 F.3d\n\nat 23.\n\n A governor could reasonably have thought that the\n\nPresident of GWH was a position to which the policymaker exception\n\napplied based on our decision in Prisma Zona, 310 F.3d 1. There,\n\nthis court applied the policymaker exception to a private\n\norganization to dismiss its First Amendment claim on the merits.\n\n\n\n\n concluded, at least for purposes of granting\n qualified immunity, that a regional director\n was, in fact, a policymaker. See Echevarria\n v. Gracia-Anselmi, 823 F.2d 696 (1st Cir.\n 1987) (regional director of the Right to\n Employment Administration); Perez Quintana v.\n Gracia Anselmi, 817 F.2d 891 (1st Cir. 1987)\n (regional director of the Right to Employment\n Administration); Rafucci Alvarado v. Zayas,\n 816 F.2d 818 (1st Cir. 1987) (regional\n director of the Department of Social\n Services); Alicea Rosado v. Zayas, 813 F.2d\n 1263 (1st Cir. 1987) (regional director of the\n Department of Social Services); Monge Vazquez\n v. Rohena Betancourt, 813 F.2d 22 (1st Cir.\n 1987) (regional director of the Department of\n Natural Resources); Collazo Rivera v. Torres\n Gaztambide, 812 F.2d 258 (1st Cir. 1987)\n (regional director of the Rural Housing\n Administration); Rodriguez v. Munoz, 808 F.2d\n 138 (1st Cir. 1986) (regional director of the\n Right to Employment Administration); Jimenez\n Fuentes v. Torres Gaztambide, 807 F.2d 236\n (1st Cir. 1986) (regional directors of the\n Urban Renewal and Housing Corporation).\n\n826 F.2d at 134.\n\n\n - 23 -\n\nSee id. at 3, 8. The plaintiff in Prisma Zona was slated to\n\nreceive state funding \"to take over the construction, ownership,\n\nand operation\" of a children's museum in Puerto Rico. Id. at 3.\n\nAfter a gubernatorial election, the new administration reneged on\n\nawarding the plaintiff the funding because of its ties to the\n\noutgoing governor and his political party. See id. at 4. This\n\ncourt held that the plaintiff \"[did] not set forth a First\n\nAmendment violation even if the facts [were] as alleged\" because\n\nconsideration of the recipient's political affiliation was\n\npermissible. Id. at 8. Specifically, we reasoned:\n\n Even in core cases involving politically\n motivated hirings and firings, the Supreme\n Court has itself recognized that a wholly\n antiseptic application of the [policymaker]\n principle is unrealistic. Instead, party\n affiliation is an appropriate consideration in\n hiring and firing decisions with respect to\n government positions that may be characterized\n as \"policymaking\" or \"confidential.\"\n\n Here, Prisma [Zona] seeks to attack a set of\n decisions related to the possible\n privatization (whether to do so and through\n whom) of the operation of a children's museum\n and directing to it millions of dollars of\n public monies. Where policy choices of this\n magnitude are presented, courts ought not be\n second-guessing how much party politics in the\n narrower sense may also have played a role.\n If political considerations are permissible in\n the hiring and firing of upper-level\n government employees, surely they are also\n appropriate in a case like this one. . . .\n\n Firing a street sweeper who voted for the\n loser is one thing; turning over a publicly\n\n\n\n - 24 -\n\n funded $70 million museum to the opposition\n party is quite another.\n\nId. at 7-8 (citations omitted).\n\n Prisma Zona makes clear that when private organizations\n\ntake public funding to administer public entities without specific\n\nrequirements, they become policymakers and may have that funding\n\nterminated for political reasons. See id. at 7. Because Eves's\n\ncomplaint describes nothing more than that very scenario, it cannot\n\nsurvive a motion to dismiss.\n\n But even if we looked to the Maine statutory scheme, the\n\nresult of the qualified immunity analysis would be the same. Just\n\nas the political affiliation of the recipient of government funding\n\nwas relevant in Prisma Zona, so too a reasonable governor could\n\nhave thought it relevant here. The President of GWH, like Prisma\n\nZona, was in charge of administering a large sum of \"public monies\"\n\nto run a public entity. Id. at 7. In fact, GWH was charged by\n\nstatute to \"administer[]\" the Center of Excellence for At-risk\n\nStudents, which it has done by using the discretionary state\n\nfunding to operate MeANS. See M.R.S.A. tit. 20-A, §§ 6951, 15689-\n\nA.20; 2009 Me. Legis. Serv. ch. 296, § 2. Although MeANS has its\n\nown principal and board of directors for day-to-day operations,\n\nGWH, as the administrator of the Center, is ultimately responsible\n\nfor MeANS's compliance with its unique charter school obligations\n\nto the state. See id.\n\n\n\n - 25 -\n\n In evaluating whether a position qualifies under the\n\npolicymaker exception, our precedent asks whether:\n\n (1) \"the discharging agency's functions entail\n 'decisionmaking on issues where there is room\n for political disagreement on goals or their\n implementation,'\" and (2) \"'the particular\n responsibilities of the plaintiff's position\n resemble those of a policymaker, privy to\n confidential information, a communicator, or\n some other office holder whose function is\n such that party affiliation is an equally\n appropriate requirement for continued\n tenure.'\"\n\nRosenberg v. City of Everett, 328 F.3d 12, 18 (1st Cir. 2003)\n\n(quoting Roldán-Plumey v. Cerezo-Suárez, 115 F.3d 58, 61-62 (1st\n\nCir. 1997)).\n\n A governor could have reasonably understood Eves's new\n\nposition as President of GWH to entail \"decisionmaking on issues\n\nwhere there is room for political disagreement.\" Id. In this\n\ncase, there are multiple ways the President of GWH can achieve the\n\norganization's ultimate goal of promoting education for at-risk\n\nyouth. Moreover, \"an issue of special political significance\" is\n\nat stake, Roman Melendez, 826 F.2d at 133: the success of GWH in\n\nimplementing Governor LePage's education policies through the\n\noperation of MeANS.11\n\n\n 11 LePage also argues that out-of-circuit precedent\nsupports granting qualified immunity. The Fifth Circuit held in\nKinsey v. Salado Independent School District, 950 F.2d 988 (5th\nCir. 1992) (en banc), that the superintendent of a school district\nwas a policymaking position, such that the superintendent's claim\nfor political affiliation discrimination failed on the merits.\n\n\n - 26 -\n\n Against this legal backdrop, and faced with these facts\n\nparticular to MeANS, GWH, and the state of Maine, a reasonable\n\ngovernor could have thought that Eves's political affiliation was\n\nrelevant to his performance as President of GWH and that the\n\npolicymaker exception applied to the position. At the time of\n\nthese events, LePage could have concluded that no law clearly\n\nestablished that his communications with GWH rose to the level of\n\nunlawful First Amendment retaliation against Speaker Eves.\n\n But even if Governor LePage were mistaken as a matter of\n\nlaw about whether Eves's position was encompassed by the\n\npolicymaking exception, any such mistake was reasonable, and a\n\nreasonable mistake of law does not defeat qualified immunity. See\n\nal-Kidd, 563 U.S. at 743 (\"Qualified immunity gives government\n\nofficials breathing room to make reasonable but mistaken judgments\n\nabout open legal questions.\"); see also López-Quiñones, 526 F.3d\n\nat 27-28 (\"[A]s the law stood when the decision was made a\n\nreasonable official could (albeit mistakenly) have deemed\n\n[plaintiff] outside Elrod/Branti's protection.\").\n\n\n\nId. at 996. The majority reasoned that the superintendent was\nremovable for political reasons because the occupant of the\nposition possessed the power to \"thwart\" the School Board's goals.\nId. Judge Higginbotham also stressed in his concurrence that\nnothing in the First Amendment obligated the Board to retain a\nSuperintendent who did not share its policy views. See id. at 998\n(Higginbotham, J., concurring). The federal district court for\nthe Eastern District of Michigan held the same with respect to the\npresident of a community college. See Heath v. Highland Park Sch.\nDist., 800 F. Supp. 1470, 1477 (E.D. Mich. 1992).\n\n\n - 27 -\n\n Eves next turns to the Supreme Court cases Board of\n\nCounty Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S.\n\n668 (1996), and O'Hare Truck Service, Inc. v. City of Northlake,\n\n518 U.S. 712 (1996), to argue that LePage violated Eves's political\n\naffiliation rights. But these cases do not clearly prohibit\n\nGovernor LePage's actions \"in light of the specific context of\n\n[this] case.\" Mullenix, 136 S. Ct. at 308 (quoting Brosseau v.\n\nHaugen, 543 U.S. 194, 198 (2004) (per curiam)).\n\n Umbehr and O'Hare do not help Eves because they did not\n\ninvolve the application of the policymaker exception, nor could\n\nthey have, given their facts. They involved the termination of a\n\nbinding commercial agreement with a contractor. In Umbehr, the\n\ndefendant Board terminated an automatically renewing contract with\n\nthe plaintiff's trash-hauling company in retaliation for the\n\nplaintiff's criticisms of a Board member. See 518 U.S. at 671.\n\nIn O'Hare, the defendant mayor removed the plaintiff's company\n\nfrom a rotation of the city's tow truck services because the\n\nplaintiff refused to donate to the mayor's campaign and instead\n\nsupported his opponent. See 518 U.S. at 715-16. It was never\n\nargued, unlike here, that the plaintiffs in these cases were\n\npolicymakers whose exercise of First Amendment rights was relevant\n\nto their positions as independent contractors.12\n\n\n 12 In addition to this crucial difference, a reasonable\ngovernor still could have believed that his actions were\n\n\n - 28 -\n\n Eves also cites Agency for International Development v.\n\nAlliance for Open Society International, Inc., 570 U.S. 205 (2013)\n\n(AID). But his en banc briefing only makes an unadorned reference\n\nto AID's applicability to his political affiliation claim. Even\n\nif we were to consider Eves's argument, however, AID is far from\n\nbeing on all fours with this case and would not have provided\n\nLePage the requisite notice to defeat qualified immunity. In AID,\n\nthe Supreme Court held that Congress's policy requirement\n\n\"mandat[ing] that recipients of [statutory] funds explicitly agree\n\nwith the Government's policy to oppose prostitution and sex\n\ntrafficking,\" by signing an agreement to that effect, violated the\n\nFirst Amendment because \"freedom of speech prohibits the\n\ngovernment from telling people what they must say.\" Id. at 213\n\n(quoting Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547\n\nU.S. 47, 61 (2006)). But Eves is the plaintiff here, not GWH.\n\nAnd AID would not inform a governor in LePage's situation that\n\nthis was not a policymaking position.\n\n Finally, Eves contends that El Dia, Inc. v. Rossello,\n\n165 F.3d 106, 108 (1st Cir. 1999), which held that it was\n\n\n\nconstitutional because unlike in Umbehr and O'Hare, the funds at\nissue here were left entirely to his discretion by statute. That\nthe legislature chose to condition GWH's funding upon GWH meeting\nits state-mandated objectives as to MeANS only reinforces the\nimportance of GWH's public function and the reasonableness of\nGovernor LePage's belief that the President of GWH was a\npolicymaking position. His en banc briefing explicitly raised\nthis defense.\n\n\n - 29 -\n\nunconstitutional for a governor to leverage discretionary\n\ngovernment advertising to a newspaper to express displeasure over\n\nthe paper's critical coverage and to obtain favorable treatment,\n\ncontrols. But that case is \"simply too factually distinct to\n\nspeak clearly to the specific circumstances here.\" Mullenix, 136\n\nS. Ct. at 312. El Dia simply did not implicate the policymaker\n\nexception. Accordingly, a reasonable governor in LePage's shoes\n\nwould not have thought that El Dia governed his conduct in this\n\nmatter.13\n\n * * *\n\n Governor LePage, for all of these reasons, was entitled\n\nto qualified immunity. Accordingly, we dismiss the damages claims\n\nagainst him.\n\n III.\n\n We Hold that There Are No Remaining Equitable or State Law\n Claims\n\n We reinstate Parts III and IV of our prior panel opinion\n\nand hold again that Eves's claims for equitable relief and his\n\nstate law claim must be dismissed. See SEC v. Tambone, 597 F.3d\n\n\n\n\n 13 As to the out-of-circuit cases that Eves cites, they are\nfactually distinguishable, and some were, in any event, published\nafter LePage's conduct at issue, see Backpage.com, LLC v. Dart,\n807 F.3d 229 (7th Cir. 2015). At the very least, the Supreme\nCourt has underscored that \"[w]hen the courts are divided . . . a\nreasonable official lacks the notice required before imposing\nliability.\" Ziglar, 137 S. Ct. at 1868.\n\n\n - 30 -\n\n436, 450 (1st Cir. 2010) (en banc) (reinstating portions of\n\nwithdrawn panel opinion); United States v. Vega-Santiago, 519 F.3d\n\n1, 6 (1st Cir. 2008) (en banc) (same).\n\n Eves argues that we did not especially discuss his claim\n\nfor declaratory relief in our prior opinion. We do so below and\n\nhold that the district court correctly dismissed his request for\n\ndeclaratory relief as moot.\n\n \"[T]o warrant the issuance of a declaratory judgment,\"\n\nEves must demonstrate that there remains \"a substantial\n\ncontroversy . . . of sufficient immediacy and reality.\" Unión de\n\nEmpleados de Muelles de P.R., Inc. v. Int'l Longshoremen's Ass'n,\n\n884 F.3d 48, 58 (1st Cir. 2018) (quoting Am. Civil Liberties Union\n\nof Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 54\n\n(1st Cir. 2013) (ACLUM)). He cannot do so. As such,\n\n\"pronouncing\" whether LePage's \"past actions . . . were right or\n\nwrong,\" would be \"merely advisory.\" ACLUM, 705 F.3d at 53 (quoting\n\nSpencer v. Kemna, 523 U.S. 1, 18 (1998)). Federal courts should\n\nnot issue such advisory opinions. Id.\n\n IV.\n\n Conclusion\n\n Our holding today is narrow and fact-bound: LePage is\n\nentitled to qualified immunity on Eves's political affiliation\n\ndiscrimination claim under the policymaker exception.\n\n\n\n\n - 31 -\n\n The district court's judgment is affirmed with respect\n\nto the dismissal of Eves's federal and state law claims.\n\n\n\n — Concurring Opinion Follows —\n\n\n\n\n - 32 -\n\n THOMPSON, Circuit Judge, with whom TORRUELLA and BARRON,\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Mark W. EVES, Plaintiff, Appellant, v. Paul R. LEPAGE, Defendant, Appellee.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\nNo. 16-1492\\n\\n MARK W. EVES,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n PAUL R. LEPAGE,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n [Hon. George Z. Singal, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Torruella, Stahl, Lynch, Thompson, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n David G. Webbert, with whom Carol J. Garvan and Johnson,\\nWebbert & Young, LLP were on brief, for appellant.\\n Patrick Strawbridge, with whom Bryan K. Weir, Caroline A.\\nCook, and Consovoy McCarthy Park PLLC were on brief, for appellee.\\n\\n\\n Opinion En Banc\\n\\n\\n\\n June 19, 2019\\n\\n\\n\\n\\n \\n Judge Kayatta is recused and did not participate in\\nconsideration of this matter.\\n\\n LYNCH, Circuit Judge. This court took this case en\\n\\nbanc, which then caused the withdrawal of the panel opinion, Eves\\n\\nv. LePage, 842 F.3d 133 (1st Cir. 2016), while we reconsidered the\\n\\ncase. A divided panel there had affirmed the district court's\\n\\ndismissal of this First Amendment retaliation suit brought by the\\n\\nthen-Speaker of Maine's House of Representatives, Mark Eves,\\n\\nagainst the then-Governor of Maine, Paul LePage.1 Eves alleged\\n\\nthat, while governor, LePage leveraged discretionary state\\n\\nfunding, in a yet unpassed state budget, to coerce an organization,\\n\\nGood Will-Hinckley (\\\"GWH\\\"), to terminate Eves's upcoming\\n\\nemployment as its President.\\n\\n In his en banc petition, Eves has narrowed his legal\\n\\nclaims by dropping all damages claims for the alleged violation of\\n\\nhis free speech rights by LePage. Eves continues to pursue damages\\n\\nagainst LePage for his claim of political affiliation\\n\\ndiscrimination, which is now the only damages claim before us.\\n\\n The en banc court holds that LePage, on these unique\\n\\nfacts, is entitled to qualified immunity because a reasonable\\n\\ngovernor in LePage's situation could have believed Eves's position\\n\\nas the new President of GWH to be a policymaking position for which\\n\\npolitical affiliation was relevant. We do not reach LePage's\\n\\n\\n\\n\\n 1 LePage left office on January 2, 2019, and Eves left\\noffice on December 2, 2016. We nonetheless generally refer to\\nthem as Governor LePage and Speaker Eves.\\n\\n\\n - 2 -\\n\\narguments that he is also entitled to immunity on other grounds.\\n\\nWe also reinstate in part our prior panel opinion and affirm the\\n\\ndismissal of this action.\\n\\n I.\\n\\n Background\\n\\n The qualified immunity issues presented in this case are\\n\\nultimately issues of law, which receive de novo review. Elder v.\\n\\nHolloway, 510 U.S. 510, 516 (1994). Like the district court, we\\n\\nassume the truth of the complaint's well-pleaded facts and draw\\n\\nall reasonable inferences in Eves's favor.2 See Ashcroft v. Iqbal,\\n\\n556 U.S. 662, 678-79 (2009); Feliciano-Hernández v. Pereira-\\n\\nCastillo, 663 F.3d 527, 532 (1st Cir. 2011) (quoting New York v.\\n\\nAmgen Inc., 652 F.3d 103, 109 (1st Cir. 2011)).\\n\\nA. Maine's Government and Budget Process\\n\\n We begin with background information on Maine law as of\\n\\nJune 2015, the time of the events in this case, and other facts as\\n\\nfound by the district court.\\n\\n\\n\\n\\n 2 We consider Eves's Second Amended complaint (\\\"the\\ncomplaint\\\"), documents annexed to it, materials fairly\\nincorporated within the complaint, and Maine state law, which is\\nsubject to judicial notice. See Rodi v. S. New Eng. Sch. of Law,\\n389 F.3d 5, 12 (1st Cir. 2004). We do not consider materials not\\nin the complaint, which the district court held could not be\\nproperly considered. Eves has not appealed from that portion of\\nthe district court's decision and has waived any argument on the\\nissue.\\n\\n\\n - 3 -\\n\\n Serving in the Maine Legislature is not a full-time job\\n\\nfor most representatives. The legislature typically sits twice\\n\\nin each session: once from December to June in year one, then again\\n\\nfrom January to April in year two. See Me. Rev. Stat. Ann.\\n\\n(\\\"M.R.S.A.\\\") tit. 3, § 2. A legislator's salary was $24,056,\\n\\nspread over the two years, plus a $38 per diem, when the\\n\\nlegislature was active, \\\"for housing or mileage and tolls.\\\" Eves\\n\\nv. LePage, No. 1:15-cv-300, 2016 WL 1948869, at *2 (D. Me. May 3,\\n\\n2016). Most legislators have at least one other source of income,\\n\\noften in the private sector. Id. In fact, \\\"[n]early all\\n\\nlegislators depend on a career outside of the State House to\\n\\nprovide for their families.\\\" Id. at *5 (relaying statement by\\n\\nMaine Senate President Mike Thibodeau).\\n\\n Maine's biennial budget process starts when the\\n\\nDepartment of Administrative and Financial Services \\\"prepare[s]\\n\\nand submit[s] . . . a state budget document\\\" to the governor,\\n\\nhaving considered submissions from various agencies and policy\\n\\ncommittees. M.R.S.A. tit. 5, § 1662. The governor then reviews\\n\\nthe draft budget, alters it, and sends it to the legislature before\\n\\nthe statutory deadline \\\"in January of the first regular legislative\\n\\nsession.\\\" Id. § 1666. The legislature must \\\"enact a budget no\\n\\nlater than 30 days prior to the date of adjournment prescribed\\\" by\\n\\nlaw. Id. § 1666-A. The legislature's proposed budget then\\n\\nreturns to the governor, who has line-item veto power, permitting\\n\\n\\n - 4 -\\n\\nhim to reduce \\\"any dollar amount\\\" in the budget. Me. Const. art.\\n\\nIV, pt. 3, § 2-A. The legislature can override any such line-item\\n\\nvetoes with a simple majority of both the House and the Senate.\\n\\nId. The governor can also veto the entire budget, like any other\\n\\npiece of legislation, in which case a two-thirds majority of both\\n\\nthe House and Senate is necessary to override the veto. Id. art.\\n\\nIV, pt. 3, § 2.\\n\\n The events in this case, which occurred mostly in June\\n\\n2015, arose in the midst of the biennial budget process and\\n\\ninvolved serious political conflict between Governor LePage and\\n\\nthe legislature. The complaint sets forth reports from others\\n\\nabout statements LePage made about Speaker Eves. Those\\n\\nstatements, which are at the heart of this case, occurred on June\\n\\n5, June 8, and June 9, before the legislature had passed any\\n\\nbudget. The complaint also sets forth allegations about later\\n\\nstatements by LePage on June 29, July 7, and July 30 as to his\\n\\nreasons for his actions.\\n\\n In a press conference on May 29, 2015, LePage stated\\n\\nthat he planned to veto \\\"every bill sponsored by a Democrat\\\" for\\n\\nthe rest of his term in office \\\"unless the Legislature agreed to\\n\\nsupport his plan to have a referendum vote on eliminating Maine's\\n\\nincome tax.\\\" Eves, 2016 WL 1948869, at *4. LePage did, in fact,\\n\\nveto ten bills on June 8, 2015, stating that he had done so purely\\n\\nbecause of their Democratic sponsorship.\\n\\n\\n - 5 -\\n\\n After the legislature passed a budget on June 17, 2015,\\n\\nLePage issued sixty-four line-item vetoes, each of which the\\n\\nlegislature overrode on June 18 and 19, 2015. On June 29, 2015,\\n\\nLePage vetoed the entire budget. The legislature also overrode\\n\\nthat veto on June 30, enacting the budget for fiscal years 2016\\n\\nand 2017 into law. The enacted budget included discretionary\\n\\nfunding for GWH, which was disbursed to GWH after Speaker Eves's\\n\\ncontract with GWH was terminated.\\n\\nB. Good Will-Hinckley, The Center of Excellence for At-risk\\n Students (\\\"the Center\\\"), and The Maine Academy of Natural\\n Sciences (\\\"MeANS\\\")\\n\\n GWH is a nonprofit charitable organization, which serves\\n\\na public purpose, located in Fairfield, Maine. The nonprofit aims\\n\\nto provide services to at-risk children throughout the state.\\n\\nFounded in 1889 as a \\\"farm, school and home for needy boys,\\\" GWH\\n\\nnow has a broader mission and a portfolio encompassing a \\\"college\\n\\nstep-up program,\\\" a \\\"Learning Center for youth with emotional or\\n\\nbehavioral challenges,\\\" a nutrition program, a library, and a\\n\\nmuseum. Id. at *2. The organization has long depended on both\\n\\nprivate donations and government grants.\\n\\n GWH was designated by the Maine Legislature in 2009 \\\"to\\n\\nserve as the nonprofit charitable corporation with a public purpose\\n\\nto implement the Center of Excellence for At-risk Students,\\\" a\\n\\nstatutorily-established public entity. Id. at *3; see 2009 Me.\\n\\nLegis. Serv. Ch. 296 (West) (codified at M.R.S.A. tit. 20-A,\\n\\n\\n - 6 -\\n\\n§§ 6951-54). The legislature gave the governor discretion to fund\\n\\nthe Center. See M.R.S.A. tit. 20-A, § 15689-A.20. In order to\\n\\nimplement the Center, GWH opened a charter school in 2012, called\\n\\nthe Maine Academy of Natural Sciences (\\\"MeANS\\\"), which it continues\\n\\nto operate. Eves's counsel conceded at oral argument that the\\n\\noperation of MeANS is the only way in which the Center has been\\n\\nimplemented.\\n\\n The complaint is silent as to whether MeANS is considered\\n\\na \\\"public\\\" charter school and whether state funding intended for\\n\\nMeANS is simply passed on from GWH to MeANS as such. The complaint\\n\\ncontains no allegations as to the exact legal relationship between\\n\\nthe Center, MeANS, and GWH, and no allegations as to any contracts\\n\\nbetween them. Nor has Eves appended to the complaint any such\\n\\ncontracts, nor quoted from them. However, three things are clear:\\n\\n(1) although MeANS has its own board and principal, the school\\n\\nrelies on \\\"discretionary state funding pursuant to its [statutory]\\n\\ndesignation as 'the Center for Excellence for At-risk Students,'\\\"\\n\\nEves, 2016 WL 1948869, at *3 (citing M.R.S.A. tit. 20-A, § 15689-\\n\\nA.20); (2) GWH fulfills its public function of implementing the\\n\\nCenter only by administering MeANS, see 2009 Me. Legis. Serv. Ch.\\n\\n296, § 2; and (3) the Center is, by legislative designation, a\\n\\npublic entity, see id.\\n\\n The Maine state budget for fiscal years 2014 and 2015\\n\\n-- which covered the period from July 1, 2013 to June 30, 2015 --\\n\\n\\n - 7 -\\n\\nhad allocated $1,060,000 in discretionary funding to GWH for the\\n\\npurpose of operating MeANS. Governor LePage disbursed all of the\\n\\ndiscretionary funding in that period; however, during that period,\\n\\nGWH was under a different President: first, Glenn Cummings, who\\n\\nwas himself a former Speaker of the Maine House and a Democrat,\\n\\nand then under an interim President, Richard Abramson. The 2015–\\n\\n2017 budget under debate in spring 2015 contained a discretionary\\n\\nappropriation of $1,060,000 to GWH to be paid in quarterly\\n\\ninstallments, as in previous years.\\n\\nC. Selection of Speaker Eves as President of GWH\\n\\n GWH began searching for a successor after Glenn Cummings\\n\\nresigned as President of GWH in September 2014. Eves, who was\\n\\nthen Speaker of the Maine House, was one of the nineteen\\n\\napplicants.3\\n\\n GWH's eight-member search committee interviewed Eves on\\n\\nApril 24, 2015. He visited the campus as one of three finalists,\\n\\nand on April 30, the GWH Senior Leadership Team unanimously\\n\\nrecommended him as the best of the three. The Team's memo \\\"cited\\n\\nhis 'extensive clinical experience,' his 'balance of executive\\n\\nadministration and fundraising experience,' and his 'leadership\\n\\n\\n 3 Eves had served as a representative in the House since\\n2008, and was Speaker for four terms from 2012 to 2016. Eves also\\nhad fifteen years of professional experience in behavioral health\\nand family therapy, in both clinical and administrative roles.\\nSince moving from Kentucky to Maine in 2003, Eves worked in that\\nfield, even while serving in the legislature.\\n\\n\\n - 8 -\\n\\nstyle and polished approach' as reasons\\\" for their conclusion.\\n\\nEves, 2016 WL 1948869, at *3. After Eves interviewed with the\\n\\nfull boards of GWH and MeANS on May 15, GWH's Board voted\\n\\nunanimously to offer him the job of GWH President.\\n\\n On June 5, 2015, Eves, who was then still the Speaker of\\n\\nthe Maine House, entered into a two-year employment agreement with\\n\\nGWH, beginning on July 1, 2015. Id. at *4. That agreement\\n\\ncontained a \\\"for-cause termination provision,\\\" and \\\"no conditions\\n\\nor contingencies\\\" related to any actions or funding decisions by\\n\\nthe State. Id. Most of Eves's employment at GWH would overlap\\n\\nwith his final term as Speaker. GWH announced Eves as its new\\n\\nPresident on June 9.\\n\\nD. Governor LePage's Intervention\\n\\n On June 5, Governor LePage learned that GWH had decided\\n\\nto hire Speaker Eves and promptly called GWH's interim President.\\n\\nId. According to the complaint, LePage stated \\\"that he was\\n\\nextremely upset\\\" about the news and \\\"used profanity to describe\\n\\n[Speaker Eves] and his work.\\\" That same day or \\\"soon after,\\\"\\n\\nLePage also sent a handwritten note to GWH's Board Chair, which,\\n\\nas characterized in the complaint, \\\"referred very negatively to\\n\\nSpeaker Eves\\\" and called him a \\\"hack.\\\" This note was not appended\\n\\nto the complaint. The Board Chair's belief, after reading the\\n\\nnote, was \\\"that GWH would lose $1,060,000 in [discretionary] state\\n\\nfunding if it retained Eves as its new President.\\\" Id.\\n\\n\\n - 9 -\\n\\n On June 8, Governor LePage \\\"sent a public letter to the\\n\\nBoard Chairs of GWH and MeANS, urging that they reconsider.\\\" Id.\\n\\nAccording to the complaint, the letter characterized Eves as \\\"a\\n\\nlongtime opponent of public charter schools\\\" who had fought against\\n\\n\\\"every effort to reform Maine's government.\\\" Id. This letter was\\n\\nalso not appended to the complaint.\\n\\n The GWH Board, \\\"which includes people of various\\n\\npolitical affiliations,\\\" discussed the letter and \\\"agreed that\\n\\ntheir selection of Speaker Eves [had been] well-supported\\n\\nand . . . not based on political considerations.\\\" Id.\\n\\n On June 8, LePage also received a call from Gregory\\n\\nPowell, the Chairman of the Board of Trustees of the Harold Alfond\\n\\nFoundation (\\\"the Foundation\\\"), who was responding to a June 5\\n\\nvoicemail from LePage. The complaint alleges Powell was left with\\n\\nthe impression that LePage was \\\"withdrawing all support,\\\"\\n\\nincluding financial support, from GWH as long as Eves remained as\\n\\nPresident of the organization. The complaint alleges that Powell\\n\\nresponded to the news by sending a letter to GWH's Board on June\\n\\n18, warning them that the Foundation had \\\"serious concern[s]\\n\\n. . . regarding [GWH's] future financial viability\\\" if LePage were\\n\\nto follow through on his threat to withhold the $1,060,000 in\\n\\ndiscretionary state funding. Those concerns, Powell further\\n\\nwarned, made the Foundation uneasy about committing to a $2,750,000\\n\\n\\n\\n\\n - 10 -\\n\\ngrant that the Foundation had been planning to give to GWH.\\n\\nPowell's letter was not appended to the complaint.\\n\\n On or about June 9, the complaint alleges Governor LePage\\n\\ntold the Acting Commissioner of the Department of Education not to\\n\\nsend any more payments to GWH \\\"that [were] not required by law.\\\"\\n\\nThe Commissioner, in response, froze $132,500 in discretionary\\n\\nfunding that was scheduled to be sent to GWH at the beginning of\\n\\nthe next quarter (on July 1), assuming the enacted budget contained\\n\\nan appropriation of those funds. As of June 9, the legislature\\n\\nhad not yet passed the budget or appropriated any funding for GWH.\\n\\nIt would have been a violation of Maine law to have sent the\\n\\n$132,500 to GWH before the budget was final and enacted. See\\n\\nM.R.S.A. tit. 5, § 1543.\\n\\n The lawyers for Eves and Governor LePage spoke on June\\n\\n22. Eves's lawyer asked LePage to withdraw his threats, but LePage\\n\\nrefused to change his stance. However, LePage took no further\\n\\nsteps \\\"to reduce or eliminate the $1,060,000 in discretionary funds\\n\\nallotted in the proposed state budget for GWH.\\\" Eves, 2016 WL\\n\\n1948869, at *5.\\n\\n After that conversation between the attorneys, GWH\\n\\nterminated Speaker Eves's employment contract on June 24, one week\\n\\nbefore his planned July 1 start date. Eves was Speaker of the\\n\\nMaine House at the time. Eves immediately stated publicly that\\n\\n\\\"his firing was caused by LePage's threat to withhold funding.\\\"\\n\\n\\n - 11 -\\n\\nId. Months later, on October 15, GWH's Board Chair stated in a\\n\\nlegislative hearing that Eves's employment would not have been\\n\\nterminated but for Governor LePage's intervention. Some of Eves's\\n\\ncolleagues in the legislature also spoke out. State Senate\\n\\nPresident Mike Thibodeau, a Republican, publicly stated that he\\n\\nwas \\\"very saddened by this situation and shocked by what is being\\n\\nalleged. Nearly all legislators depend on a career outside of the\\n\\nState House to provide for their families.\\\" Id.\\n\\n Initially, Governor LePage declined to confirm or deny\\n\\nthat he had made any statement to influence GWH's decision-making\\n\\nprocess. However, as the complaint alleges, when local reporters\\n\\ninterviewed LePage on June 29 and asked whether he had \\\"threatened\\n\\nto withhold money\\\" from GWH, he responded:\\n\\n Yeah, I did! If I could, I would! Absolutely; why\\n wouldn't I? Tell me why I wouldn't take the taxpayer\\n money, to prevent somebody to go into a school and\\n destroy it. Because his heart's not into doing the\\n right thing for Maine people.\\n\\nIn a radio address on July 7, LePage further explained:\\n\\n [Eves] worked his entire political career to oppose and\\n threaten charter schools in Maine. He is the mouthpiece\\n for the Maine Education Association. Giving taxpayers'\\n money to a person who has fought so hard against charter\\n schools would be unconscionable.\\n\\nAnd in another interview on July 30, LePage called Eves \\\"a plant\\n\\nby the unions to destroy charter schools.\\\" LePage drew an analogy:\\n\\n\\\"[O]ne time I stepped in . . . when a man was beating his wife.\\n\\n\\n\\n\\n - 12 -\\n\\nShould I have stepped in? Legally, no. But I did. And I'm not\\n\\nembarrassed about doing it.\\\"\\n\\nE. Procedural History of This Litigation\\n\\n Eves filed this lawsuit on July 30, 2015, and then filed\\n\\na First Amended Complaint on December 18, 2015. Governor LePage\\n\\nmoved to dismiss the suit on January 5, 2016, arguing in his\\n\\nsupporting memo that the complaint failed to state any claim and\\n\\nthat the subject matter of the lawsuit was \\\"a political dispute\\n\\nthat does not belong in court.\\\" He explicitly asserted, inter\\n\\nalia, that his actions as to Eves were protected by both absolute\\n\\nand qualified immunity. On April 13, 2016, Eves was granted leave\\n\\n(without opposition) to file a Second Amended Complaint.4\\n\\n On May 3, 2016, the district court issued an opinion\\n\\ngranting Governor LePage's motion to dismiss. Eves, 2016 WL\\n\\n1948869, at *1. The court entered judgment for LePage the next\\n\\nday, and Eves filed a notice of appeal that same day.\\n\\n\\n\\n\\n 4 The Second Amended Complaint contained five claims\\nagainst Governor LePage: four federal law counts under 42 U.S.C.\\n§ 1983 for violations of Eves's rights to political affiliation,\\nfree speech, freedom of association, and procedural due process,\\nand a fifth claim under state law for intentional interference\\nwith contract. As relief, Eves requested: (1) a declaratory\\njudgment; (2) an injunction compelling Governor LePage to\\n\\\"permanently withdraw his illegal threat\\\" to GWH and \\\"cease using\\nhis authority to illegally retaliate against Eves or private\\norganizations that are prospective employers or employers of\\nEves\\\"; and (3) damages.\\n\\n\\n - 13 -\\n\\n On November 22, 2016, a divided panel of this court\\n\\naffirmed the district court's dismissal of Eves's equitable\\n\\nclaims, and dismissed his § 1983 damages claims on the basis of\\n\\nqualified immunity. Eves, 842 F.3d at 144-45. It also directed\\n\\nthe district court to dismiss Eves's state law claim without\\n\\nprejudice. Id. at 146. Eves petitioned for rehearing en banc,\\n\\nand his petition was granted on January 19, 2018.\\n\\n Eves has narrowed his claims for en banc review. The\\n\\nconduct by Governor LePage he is now challenging is limited to\\n\\nLePage's alleged threat to withhold discretionary funding, and the\\n\\nstop order that was placed, before the budget was finalized, on\\n\\nGWH's first quarterly payment for fiscal year 2015. Eves is no\\n\\nlonger pursuing damages for his free speech claim, but continues\\n\\nto pursue damages for political affiliation discrimination. Eves\\n\\nis also still pursuing equitable relief, especially declaratory\\n\\nrelief.\\n\\n II.\\n\\n We Hold that Qualified Immunity Bars Eves's Claim for Damages\\n for Political Affiliation Discrimination\\n\\nA. Qualified Immunity Framework\\n\\n The Supreme Court has long established that, when sued\\n\\nin their official capacities, government officials are immune from\\n\\ndamages claims unless \\\"(1) they violated a federal statutory or\\n\\nconstitutional right, and (2) the unlawfulness of their conduct\\n\\n\\n\\n - 14 -\\n\\nwas 'clearly established at the time.'\\\" District of Columbia v.\\n\\nWesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566\\n\\nU.S. 658, 664 (2012)). The second step of the qualified immunity\\n\\ninquiry, in turn, involves several factors.\\n\\n The plaintiff must demonstrate that \\\"the law was\\n\\n'\\\"sufficiently clear\\\" [such] that every \\\"reasonable official would\\n\\nunderstand that what he is doing\\\" is unlawful.'\\\" Id. at 589\\n\\n(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The\\n\\nSupreme Court has \\\"repeatedly told courts\\\" not to define the\\n\\nqualified immunity inquiry \\\"at a high level of generality.\\\" City\\n\\n& Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775-76 (2015) (quoting\\n\\nal-Kidd, 563 U.S. at 742). Rather, clearly established law must\\n\\ndefine \\\"the right allegedly violated . . . in a 'particularized'\\n\\nsense so that the 'contours' of the right are clear to a reasonable\\n\\nofficial.\\\" Reichle, 566 U.S. at 665 (quoting Anderson v.\\n\\nCreighton, 483 U.S. 635, 640 (1987)).\\n\\n Qualified immunity, the Court has reinforced, is\\n\\nintended to \\\"protect[] 'all but the plainly incompetent or those\\n\\nwho knowingly violate the law.'\\\" White v. Pauly, 137 S. Ct. 548,\\n\\n551 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).\\n\\nAccordingly, although there need not be \\\"a case directly on\\n\\npoint, . . . existing precedent must have placed the statutory or\\n\\nconstitutional question beyond debate.\\\" al-Kidd, 563 U.S. at 741.\\n\\nThe Supreme Court has \\\"not yet decided what precedents -- other\\n\\n\\n - 15 -\\n\\nthan [its] own -- qualify as controlling authority.\\\" Wesby, 138\\n\\nS. Ct. at 591 n.8. It is enough \\\"for qualified immunity purposes\\\"\\n\\nthough that under existing Supreme Court case law, it is \\\"at least\\n\\narguable\\\" that LePage's actions were constitutional. Reichle, 566\\n\\nU.S. at 669.\\n\\n The Supreme Court has also repeatedly emphasized that\\n\\nthe qualified immunity inquiry \\\"focus[es] on 'the objective legal\\n\\nreasonableness of an official's acts.'\\\" Crawford-El v. Britton,\\n\\n523 U.S. 574, 590 (1998) (quoting Harlow v. Fitzgerald, 457 U.S.\\n\\n800, 819 (1982)). \\\"Evidence concerning the defendant's subjective\\n\\nintent is simply irrelevant\\\" to the second step of the inquiry.\\n\\nId. at 588. As such, if an objectively reasonable official in\\n\\nGovernor LePage's shoes \\\"might not have known for certain that\\n\\n[his] conduct was unlawful,\\\" then LePage \\\"is immune from\\n\\nliability.\\\" Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017). A\\n\\ndecision of qualified immunity on a motion to dismiss is\\n\\nappropriate here.5\\n\\n\\n 5 We reject Eves's contention that qualified immunity\\nshould be decided at a later stage of litigation, not on a motion\\nto dismiss. That would turn well-settled precedent on its head.\\nThe Supreme Court has repeatedly \\\"stressed the importance of\\nresolving immunity questions at the earliest possible stage [of\\nthe] litigation.\\\" Wood v. Moss, 572 U.S. 744, 755 n.4 (2014)\\n(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).\\nThe Court has affirmed the dismissal of multiple First Amendment\\nclaims on the basis of qualified immunity. See, e.g., Ziglar, 137\\nS. Ct. at 1869; Wood, 572 U.S. at 756-64; Iqbal, 556 U.S. at 686.\\nWe have as well. See, e.g., Air Sunshine, Inc. v. Carl, 663 F.3d\\n27, 32-37 (1st Cir. 2011); Decotiis v. Whittemore, 635 F.3d 22,\\n\\n\\n - 16 -\\n\\nB. Qualified Immunity Analysis\\n\\n We move directly to the second step of the qualified\\n\\nimmunity analysis and ask whether Governor LePage's alleged\\n\\nconduct violated \\\"clearly established\\\" federal law as to political\\n\\naffiliation discrimination. Applying this objective test, we\\n\\nconclude that the law on which Eves relies was not clearly\\n\\nestablished such that a reasonable governor in LePage's situation\\n\\nwould have concluded that the constitutional question and the\\n\\npolicymaker exception was placed beyond doubt in Eves's favor.6\\n\\nThere was no \\\"controlling authority\\\" or even a \\\"consensus of cases\\n\\nof persuasive authority,\\\" Wilson v. Layne, 526 U.S. 603, 617\\n\\n(1999), that would lead to the conclusion that Governor LePage can\\n\\nbe denied immunity.\\n\\n Even if we were to assume that Governor LePage induced\\n\\nGWH to remove Eves solely because Eves was a Democrat -- and not,\\n\\neven in part, because of LePage's view of Eves's policy positions7\\n\\n\\n36-38 (1st Cir. 2011); Torres-Rivera v. Calderón-Serra, 412 F.3d\\n205, 214-15 (1st Cir. 2005).\\n 6 Eves argues that because political discrimination cases\\noften involve \\\"a calculated decision,\\\" and not a split-second\\njudgment call as in some Fourth Amendment cases, a less-protective\\nstandard of qualified immunity should apply. He cites no law to\\nthat effect, and we know of none. As a matter of fact, the\\ninferences from the complaint are that LePage was under some time\\npressure to act (if not a split-second decision), and there were\\nat least two reasons for that: (1) the budget was in the process\\nof being decided on within days, and (2) the date of Eves's\\nappointment was looming.\\n 7 We reiterate that the complaint expressly alleges that\\n\\n\\n - 17 -\\n\\n-- for the reasons that follow, LePage could have reasonably\\n\\nbelieved that the President of GWH was a \\\"policymaker\\\" who could\\n\\nbe lawfully discharged on the basis of his political affiliation.8\\n\\n The Supreme Court has long held, beginning with Elrod v.\\n\\nBurns, 427 U.S. 347 (1976) (plurality opinion), and Branti v.\\n\\nFinkel, 445 U.S. 507 (1980), that there is no right to protection\\n\\non the grounds of political affiliation where political\\n\\naffiliation is legitimately relevant to the employee's job. This\\n\\ncourt has extended the \\\"policymaker exception,\\\" in certain\\n\\ncircumstances, beyond public offices to nongovernment employees.\\n\\nSee Ramírez v. Arlequín, 447 F.3d 19, 23 (1st Cir. 2006); Prisma\\n\\nZona Exploratoria de Puerto Rico, Inc. v. Calderón, 310 F.3d 1, 3,\\n\\n8 (1st Cir. 2002).\\n\\n In Elrod, a plurality of the Supreme Court specifically\\n\\nnoted that consideration of political affiliation for policymaking\\n\\npositions is justified to prevent \\\"representative government\\\" from\\n\\nbeing \\\"undercut by tactics obstructing the implementation of\\n\\n\\nLePage communicated his intent to oppose further discretionary\\nfunding for GWH unless it removed Eves, because Eves was thought\\nby LePage to be beholden to unions, to oppose charter schools, and\\nto seek to undercut the mission of MeANS.\\n 8 LePage did not waive the argument that he is entitled to\\nqualified immunity even if he committed a reasonable mistake of\\nlaw. \\\"The purpose of qualified immunity is to protect reasonable,\\nif mistaken, decision making by government officials\\\" when the law\\nis unclear. López-Quiñones v. P.R. Nat'l Guard, 526 F.3d 23, 27\\n(1st Cir. 2008) (citation omitted). As such, it is sufficient\\nthat LePage argued the law was not clearly established as to\\nwhether the President of GWH is a policymaking position.\\n\\n\\n - 18 -\\n\\npolicies of the . . . administration, policies presumably\\n\\nsanctioned by the electorate.\\\" 427 U.S. at 367. Elrod also\\n\\nrecognized that \\\"[n]o clear line can be drawn between policymaking\\n\\nand nonpolicymaking positions.\\\" Id. Rather, \\\"[t]he nature of\\n\\nthe responsibilities [of the position] is critical.\\\" Id.\\n\\n Branti reaffirmed that consideration of political\\n\\naffiliation is permissible where \\\"affiliation is an appropriate\\n\\nrequirement for the effective performance of the public office\\n\\ninvolved.\\\"9 445 U.S. at 518 (emphasis added). There, the Court\\n\\nheld that two county assistant public defenders, who the lower\\n\\ncourts had found were terminated solely because they were\\n\\nRepublicans, had a viable First Amendment claim against the newly\\n\\nelected public defender. Branti, 445 U.S. at 520. Quoting Elrod\\n\\nin part, the Court reasoned that the assistant public defenders\\n\\nwere not policymakers subject to political discharge because they\\n\\nhad \\\"'very limited, if any, responsibility' with respect to the\\n\\noverall operation of the public defender's office.' They [also]\\n\\ndid not 'act as advisors or formulate plans for the implementation\\n\\nof the broad goals of the office.'\\\" Id. at 511 (quoting Finkel\\n\\nv. Branti, 457 F. Supp. 1284, 1291 (S.D.N.Y. 1978)).\\n\\n\\n 9 A later case extended Branti and Elrod's protections to\\nemployment decisions other than discharge for what were low-level\\nemployees. See Rutan v. Republican Party of Ill., 497 U.S. 62,\\n79 (1990). Rutan would not have provided any notice to LePage\\nthat his actions were unconstitutional. No claim was made there\\nthat such employees held policymaking positions.\\n\\n\\n - 19 -\\n\\n Here, the President of GWH can be reasonably understood\\n\\nto be a policymaker given GWH's statutory mandate to administer a\\n\\npublic entity, the Center for Excellence of At-risk Students, and\\n\\nits choice to do so solely through MeANS. President was the\\n\\nhighest position at GWH. Further, the job description, as set\\n\\nforth in the complaint, could lead a reasonable governor to\\n\\nconclude that the position involved \\\"act[ing] as an adviser\\\" and\\n\\n\\\"formulat[ing] plans for the implementation\\\" of the Center.\\n\\nBranti, 445 U.S. at 511. The job qualifications emphasized\\n\\n\\\"administrative experience in strategic planning . . . and\\n\\nexperience working with legislators, state policy makers, and\\n\\ngovernmental agencies.\\\" (Emphasis added.)\\n\\n Indeed, the complaint itself alleges that Eves was\\n\\nselected specifically for his \\\"statewide policy and leadership\\n\\nexperience as Speaker of the Maine House of Representatives.\\\"\\n\\nCoupled with the fact that the previous GWH President had also\\n\\nbeen the Speaker of the Maine House, this could lead a reasonable\\n\\ngovernor to conclude that policymaking, including working with\\n\\nelected policymakers, was an important aspect of the GWH\\n\\nPresident's job.\\n\\n A reasonable governor could also conclude that the\\n\\nPresident of GWH was \\\"in a position to thwart\\\" the policy\\n\\nobjectives of \\\"the in-party.\\\" Elrod, 427 U.S. at 367. In\\n\\ncarrying out its public function, GWH is mandated by statute to\\n\\n\\n - 20 -\\n\\n\\\"collaborate with the department [of education], public school\\n\\nadministrators and other public and private organizations with an\\n\\ninterest in the support and education of at-risk students.\\\"\\n\\nM.R.S.A. tit. 20-A, § 6952. Given that there is clearly room for\\n\\nprincipled and partisan disagreement about how best to administer\\n\\nMeANS and collaborate with various stakeholders, a reasonable\\n\\ngovernor could conclude that \\\"[political] affiliation is an\\n\\nappropriate requirement\\\" for the position of GWH President.\\n\\nBranti, 445 U.S. at 518. In fact, Governor LePage articulated\\n\\nthis exact concern, as evidenced by allegations in the complaint\\n\\nthat LePage stated Eves would use his office to oppose LePage's\\n\\nagenda of promoting charter schools and to promote policies favored\\n\\nby the teachers' union.\\n\\n Further, the fact that GWH’s funding for MeANS is left\\n\\nentirely to the governor's discretion is yet another reason why a\\n\\nreasonable governor could have believed that the President of GWH\\n\\nwas an important policymaking position. The legislature specified\\n\\nthat the discretionary state funding GWH receives to implement the\\n\\nCenter is expressly subject to the satisfaction of the Commissioner\\n\\nof Education (and by extension, the governor). See M.R.S.A. tit.\\n\\n20-A, § 15689-A.20. This suggests that the operation of MeANS is\\n\\na public function closely tied to the \\\"implementation of policies\\n\\nof [LePage's] administration.\\\" Elrod, 427 U.S. at 367. And a\\n\\nreasonable governor could have believed that a significant reason\\n\\n\\n - 21 -\\n\\nthe funding of the Center was left to whoever was the occupant of\\n\\nthe governor's job was to ensure that, in implementing the Center,\\n\\nGWH would follow that administration's educational policy\\n\\ndirectives.\\n\\n Turning to First Circuit law interpreting the\\n\\npolicymaker exception, we reach the same qualified immunity\\n\\noutcome. Our circuit precedent has consistently held that\\n\\npositions of far less responsibility and significance than that of\\n\\nthe President of GWH were policymaking positions. See O'Connell\\n\\nv. Marrero-Recio, 724 F.3d 117, 120 (1st Cir. 2013) (human\\n\\nresources director of agency); Uphoff Figueroa v. Alejandro, 597\\n\\nF.3d 423, 426 (1st Cir. 2010) (administrator of agency's legal\\n\\noffice); Flynn v. City of Bos., 140 F.3d 42, 45 (1st Cir. 1998)\\n\\n(\\\"the regional director of an administrative agency, the municipal\\n\\nsecretary in a mayor's office, an officer in charge of human\\n\\nresources, a director of public relations, a superintendent of\\n\\npublic works, a director of a city's federal programs office, and\\n\\na director of a satellite office of the Massachusetts Secretary of\\n\\nState\\\" (citations omitted)); Roman Melendez v. Inclan, 826 F.2d\\n\\n130, 133-34 (1st Cir. 1987) (regional director of agency in charge\\n\\nof maintaining public buildings).10 Further, we have held that\\n\\n\\n 10 Roman Melendez in turn cited to eight First Circuit\\ncases:\\n [I]n every case concerning regional directors\\n of government agencies in Puerto Rico, we have\\n\\n\\n - 22 -\\n\\n\\\"the government's policymaking interest [can] override the First\\n\\nAmendment protection against political discrimination, even where\\n\\nthe plaintiff [is] not a government employee.\\\" Ramírez, 447 F.3d\\n\\nat 23.\\n\\n A governor could reasonably have thought that the\\n\\nPresident of GWH was a position to which the policymaker exception\\n\\napplied based on our decision in Prisma Zona, 310 F.3d 1. There,\\n\\nthis court applied the policymaker exception to a private\\n\\norganization to dismiss its First Amendment claim on the merits.\\n\\n\\n\\n\\n concluded, at least for purposes of granting\\n qualified immunity, that a regional director\\n was, in fact, a policymaker. See Echevarria\\n v. Gracia-Anselmi, 823 F.2d 696 (1st Cir.\\n 1987) (regional director of the Right to\\n Employment Administration); Perez Quintana v.\\n Gracia Anselmi, 817 F.2d 891 (1st Cir. 1987)\\n (regional director of the Right to Employment\\n Administration); Rafucci Alvarado v. Zayas,\\n 816 F.2d 818 (1st Cir. 1987) (regional\\n director of the Department of Social\\n Services); Alicea Rosado v. Zayas, 813 F.2d\\n 1263 (1st Cir. 1987) (regional director of the\\n Department of Social Services); Monge Vazquez\\n v. Rohena Betancourt, 813 F.2d 22 (1st Cir.\\n 1987) (regional director of the Department of\\n Natural Resources); Collazo Rivera v. Torres\\n Gaztambide, 812 F.2d 258 (1st Cir. 1987)\\n (regional director of the Rural Housing\\n Administration); Rodriguez v. Munoz, 808 F.2d\\n 138 (1st Cir. 1986) (regional director of the\\n Right to Employment Administration); Jimenez\\n Fuentes v. Torres Gaztambide, 807 F.2d 236\\n (1st Cir. 1986) (regional directors of the\\n Urban Renewal and Housing Corporation).\\n\\n826 F.2d at 134.\\n\\n\\n - 23 -\\n\\nSee id. at 3, 8. The plaintiff in Prisma Zona was slated to\\n\\nreceive state funding \\\"to take over the construction, ownership,\\n\\nand operation\\\" of a children's museum in Puerto Rico. Id. at 3.\\n\\nAfter a gubernatorial election, the new administration reneged on\\n\\nawarding the plaintiff the funding because of its ties to the\\n\\noutgoing governor and his political party. See id. at 4. This\\n\\ncourt held that the plaintiff \\\"[did] not set forth a First\\n\\nAmendment violation even if the facts [were] as alleged\\\" because\\n\\nconsideration of the recipient's political affiliation was\\n\\npermissible. Id. at 8. Specifically, we reasoned:\\n\\n Even in core cases involving politically\\n motivated hirings and firings, the Supreme\\n Court has itself recognized that a wholly\\n antiseptic application of the [policymaker]\\n principle is unrealistic. Instead, party\\n affiliation is an appropriate consideration in\\n hiring and firing decisions with respect to\\n government positions that may be characterized\\n as \\\"policymaking\\\" or \\\"confidential.\\\"\\n\\n Here, Prisma [Zona] seeks to attack a set of\\n decisions related to the possible\\n privatization (whether to do so and through\\n whom) of the operation of a children's museum\\n and directing to it millions of dollars of\\n public monies. Where policy choices of this\\n magnitude are presented, courts ought not be\\n second-guessing how much party politics in the\\n narrower sense may also have played a role.\\n If political considerations are permissible in\\n the hiring and firing of upper-level\\n government employees, surely they are also\\n appropriate in a case like this one. . . .\\n\\n Firing a street sweeper who voted for the\\n loser is one thing; turning over a publicly\\n\\n\\n\\n - 24 -\\n\\n funded $70 million museum to the opposition\\n party is quite another.\\n\\nId. at 7-8 (citations omitted).\\n\\n Prisma Zona makes clear that when private organizations\\n\\ntake public funding to administer public entities without specific\\n\\nrequirements, they become policymakers and may have that funding\\n\\nterminated for political reasons. See id. at 7. Because Eves's\\n\\ncomplaint describes nothing more than that very scenario, it cannot\\n\\nsurvive a motion to dismiss.\\n\\n But even if we looked to the Maine statutory scheme, the\\n\\nresult of the qualified immunity analysis would be the same. Just\\n\\nas the political affiliation of the recipient of government funding\\n\\nwas relevant in Prisma Zona, so too a reasonable governor could\\n\\nhave thought it relevant here. The President of GWH, like Prisma\\n\\nZona, was in charge of administering a large sum of \\\"public monies\\\"\\n\\nto run a public entity. Id. at 7. In fact, GWH was charged by\\n\\nstatute to \\\"administer[]\\\" the Center of Excellence for At-risk\\n\\nStudents, which it has done by using the discretionary state\\n\\nfunding to operate MeANS. See M.R.S.A. tit. 20-A, §§ 6951, 15689-\\n\\nA.20; 2009 Me. Legis. Serv. ch. 296, § 2. Although MeANS has its\\n\\nown principal and board of directors for day-to-day operations,\\n\\nGWH, as the administrator of the Center, is ultimately responsible\\n\\nfor MeANS's compliance with its unique charter school obligations\\n\\nto the state. See id.\\n\\n\\n\\n - 25 -\\n\\n In evaluating whether a position qualifies under the\\n\\npolicymaker exception, our precedent asks whether:\\n\\n (1) \\\"the discharging agency's functions entail\\n 'decisionmaking on issues where there is room\\n for political disagreement on goals or their\\n implementation,'\\\" and (2) \\\"'the particular\\n responsibilities of the plaintiff's position\\n resemble those of a policymaker, privy to\\n confidential information, a communicator, or\\n some other office holder whose function is\\n such that party affiliation is an equally\\n appropriate requirement for continued\\n tenure.'\\\"\\n\\nRosenberg v. City of Everett, 328 F.3d 12, 18 (1st Cir. 2003)\\n\\n(quoting Roldán-Plumey v. Cerezo-Suárez, 115 F.3d 58, 61-62 (1st\\n\\nCir. 1997)).\\n\\n A governor could have reasonably understood Eves's new\\n\\nposition as President of GWH to entail \\\"decisionmaking on issues\\n\\nwhere there is room for political disagreement.\\\" Id. In this\\n\\ncase, there are multiple ways the President of GWH can achieve the\\n\\norganization's ultimate goal of promoting education for at-risk\\n\\nyouth. Moreover, \\\"an issue of special political significance\\\" is\\n\\nat stake, Roman Melendez, 826 F.2d at 133: the success of GWH in\\n\\nimplementing Governor LePage's education policies through the\\n\\noperation of MeANS.11\\n\\n\\n 11 LePage also argues that out-of-circuit precedent\\nsupports granting qualified immunity. The Fifth Circuit held in\\nKinsey v. Salado Independent School District, 950 F.2d 988 (5th\\nCir. 1992) (en banc), that the superintendent of a school district\\nwas a policymaking position, such that the superintendent's claim\\nfor political affiliation discrimination failed on the merits.\\n\\n\\n - 26 -\\n\\n Against this legal backdrop, and faced with these facts\\n\\nparticular to MeANS, GWH, and the state of Maine, a reasonable\\n\\ngovernor could have thought that Eves's political affiliation was\\n\\nrelevant to his performance as President of GWH and that the\\n\\npolicymaker exception applied to the position. At the time of\\n\\nthese events, LePage could have concluded that no law clearly\\n\\nestablished that his communications with GWH rose to the level of\\n\\nunlawful First Amendment retaliation against Speaker Eves.\\n\\n But even if Governor LePage were mistaken as a matter of\\n\\nlaw about whether Eves's position was encompassed by the\\n\\npolicymaking exception, any such mistake was reasonable, and a\\n\\nreasonable mistake of law does not defeat qualified immunity. See\\n\\nal-Kidd, 563 U.S. at 743 (\\\"Qualified immunity gives government\\n\\nofficials breathing room to make reasonable but mistaken judgments\\n\\nabout open legal questions.\\\"); see also López-Quiñones, 526 F.3d\\n\\nat 27-28 (\\\"[A]s the law stood when the decision was made a\\n\\nreasonable official could (albeit mistakenly) have deemed\\n\\n[plaintiff] outside Elrod/Branti's protection.\\\").\\n\\n\\n\\nId. at 996. The majority reasoned that the superintendent was\\nremovable for political reasons because the occupant of the\\nposition possessed the power to \\\"thwart\\\" the School Board's goals.\\nId. Judge Higginbotham also stressed in his concurrence that\\nnothing in the First Amendment obligated the Board to retain a\\nSuperintendent who did not share its policy views. See id. at 998\\n(Higginbotham, J., concurring). The federal district court for\\nthe Eastern District of Michigan held the same with respect to the\\npresident of a community college. See Heath v. Highland Park Sch.\\nDist., 800 F. Supp. 1470, 1477 (E.D. Mich. 1992).\\n\\n\\n - 27 -\\n\\n Eves next turns to the Supreme Court cases Board of\\n\\nCounty Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S.\\n\\n668 (1996), and O'Hare Truck Service, Inc. v. City of Northlake,\\n\\n518 U.S. 712 (1996), to argue that LePage violated Eves's political\\n\\naffiliation rights. But these cases do not clearly prohibit\\n\\nGovernor LePage's actions \\\"in light of the specific context of\\n\\n[this] case.\\\" Mullenix, 136 S. Ct. at 308 (quoting Brosseau v.\\n\\nHaugen, 543 U.S. 194, 198 (2004) (per curiam)).\\n\\n Umbehr and O'Hare do not help Eves because they did not\\n\\ninvolve the application of the policymaker exception, nor could\\n\\nthey have, given their facts. They involved the termination of a\\n\\nbinding commercial agreement with a contractor. In Umbehr, the\\n\\ndefendant Board terminated an automatically renewing contract with\\n\\nthe plaintiff's trash-hauling company in retaliation for the\\n\\nplaintiff's criticisms of a Board member. See 518 U.S. at 671.\\n\\nIn O'Hare, the defendant mayor removed the plaintiff's company\\n\\nfrom a rotation of the city's tow truck services because the\\n\\nplaintiff refused to donate to the mayor's campaign and instead\\n\\nsupported his opponent. See 518 U.S. at 715-16. It was never\\n\\nargued, unlike here, that the plaintiffs in these cases were\\n\\npolicymakers whose exercise of First Amendment rights was relevant\\n\\nto their positions as independent contractors.12\\n\\n\\n 12 In addition to this crucial difference, a reasonable\\ngovernor still could have believed that his actions were\\n\\n\\n - 28 -\\n\\n Eves also cites Agency for International Development v.\\n\\nAlliance for Open Society International, Inc., 570 U.S. 205 (2013)\\n\\n(AID). But his en banc briefing only makes an unadorned reference\\n\\nto AID's applicability to his political affiliation claim. Even\\n\\nif we were to consider Eves's argument, however, AID is far from\\n\\nbeing on all fours with this case and would not have provided\\n\\nLePage the requisite notice to defeat qualified immunity. In AID,\\n\\nthe Supreme Court held that Congress's policy requirement\\n\\n\\\"mandat[ing] that recipients of [statutory] funds explicitly agree\\n\\nwith the Government's policy to oppose prostitution and sex\\n\\ntrafficking,\\\" by signing an agreement to that effect, violated the\\n\\nFirst Amendment because \\\"freedom of speech prohibits the\\n\\ngovernment from telling people what they must say.\\\" Id. at 213\\n\\n(quoting Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547\\n\\nU.S. 47, 61 (2006)). But Eves is the plaintiff here, not GWH.\\n\\nAnd AID would not inform a governor in LePage's situation that\\n\\nthis was not a policymaking position.\\n\\n Finally, Eves contends that El Dia, Inc. v. Rossello,\\n\\n165 F.3d 106, 108 (1st Cir. 1999), which held that it was\\n\\n\\n\\nconstitutional because unlike in Umbehr and O'Hare, the funds at\\nissue here were left entirely to his discretion by statute. That\\nthe legislature chose to condition GWH's funding upon GWH meeting\\nits state-mandated objectives as to MeANS only reinforces the\\nimportance of GWH's public function and the reasonableness of\\nGovernor LePage's belief that the President of GWH was a\\npolicymaking position. His en banc briefing explicitly raised\\nthis defense.\\n\\n\\n - 29 -\\n\\nunconstitutional for a governor to leverage discretionary\\n\\ngovernment advertising to a newspaper to express displeasure over\\n\\nthe paper's critical coverage and to obtain favorable treatment,\\n\\ncontrols. But that case is \\\"simply too factually distinct to\\n\\nspeak clearly to the specific circumstances here.\\\" Mullenix, 136\\n\\nS. Ct. at 312. El Dia simply did not implicate the policymaker\\n\\nexception. Accordingly, a reasonable governor in LePage's shoes\\n\\nwould not have thought that El Dia governed his conduct in this\\n\\nmatter.13\\n\\n * * *\\n\\n Governor LePage, for all of these reasons, was entitled\\n\\nto qualified immunity. Accordingly, we dismiss the damages claims\\n\\nagainst him.\\n\\n III.\\n\\n We Hold that There Are No Remaining Equitable or State Law\\n Claims\\n\\n We reinstate Parts III and IV of our prior panel opinion\\n\\nand hold again that Eves's claims for equitable relief and his\\n\\nstate law claim must be dismissed. See SEC v. Tambone, 597 F.3d\\n\\n\\n\\n\\n 13 As to the out-of-circuit cases that Eves cites, they are\\nfactually distinguishable, and some were, in any event, published\\nafter LePage's conduct at issue, see Backpage.com, LLC v. Dart,\\n807 F.3d 229 (7th Cir. 2015). At the very least, the Supreme\\nCourt has underscored that \\\"[w]hen the courts are divided . . . a\\nreasonable official lacks the notice required before imposing\\nliability.\\\" Ziglar, 137 S. Ct. at 1868.\\n\\n\\n - 30 -\\n\\n436, 450 (1st Cir. 2010) (en banc) (reinstating portions of\\n\\nwithdrawn panel opinion); United States v. Vega-Santiago, 519 F.3d\\n\\n1, 6 (1st Cir. 2008) (en banc) (same).\\n\\n Eves argues that we did not especially discuss his claim\\n\\nfor declaratory relief in our prior opinion. We do so below and\\n\\nhold that the district court correctly dismissed his request for\\n\\ndeclaratory relief as moot.\\n\\n \\\"[T]o warrant the issuance of a declaratory judgment,\\\"\\n\\nEves must demonstrate that there remains \\\"a substantial\\n\\ncontroversy . . . of sufficient immediacy and reality.\\\" Unión de\\n\\nEmpleados de Muelles de P.R., Inc. v. Int'l Longshoremen's Ass'n,\\n\\n884 F.3d 48, 58 (1st Cir. 2018) (quoting Am. Civil Liberties Union\\n\\nof Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 54\\n\\n(1st Cir. 2013) (ACLUM)). He cannot do so. As such,\\n\\n\\\"pronouncing\\\" whether LePage's \\\"past actions . . . were right or\\n\\nwrong,\\\" would be \\\"merely advisory.\\\" ACLUM, 705 F.3d at 53 (quoting\\n\\nSpencer v. Kemna, 523 U.S. 1, 18 (1998)). Federal courts should\\n\\nnot issue such advisory opinions. Id.\\n\\n IV.\\n\\n Conclusion\\n\\n Our holding today is narrow and fact-bound: LePage is\\n\\nentitled to qualified immunity on Eves's political affiliation\\n\\ndiscrimination claim under the policymaker exception.\\n\\n\\n\\n\\n - 31 -\\n\\n The district court's judgment is affirmed with respect\\n\\nto the dismissal of Eves's federal and state law claims.\\n\\n\\n\\n — Concurring Opinion Follows —\\n\\n\\n\\n\\n - 32 -\\n\\n THOMPSON, Circuit Judge, with whom TORRUELLA and BARRON,\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2380,"cells":{"id":{"kind":"number","value":4631526,"string":"4,631,526"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Maine Pooled Disability Trust v. Hamilton"},"decision_date":{"kind":"string","value":"2019-06-20"},"docket_number":{"kind":"string","value":"18-1223P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before Thompson, Kayatta, and Barron, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"KAYATTA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1223\\n\\n MAINE POOLED DISABILITY TRUST;\\n\\n Plaintiff, Appellant,\\n\\n YVONNE R. RICHARDSON, by her Conservator Barbara Carlin,\\n\\n Plaintiff,\\n\\n v.\\n\\n RICKER HAMILTON, in his official capacity as Commissioner of\\n Maine Department of Health and Human Services,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. John A. Woodcock, Jr., U.S. District Judge]\\n\\n\\n Before\\n\\n Thompson, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Ron M. Landsman, with whom Landsman Law Group, Rene H.\\nReixach, Jr., Woods, Oviatt, Gilman, LLP, Richard L. O'Meara, and\\nMurray, Plumb & Murray were on brief, for appellant.\\n Thaddeus A. Heuer, with whom Dean Richlin, Jeremy W.\\nMeisinger, and Foley Hoag, LLP were on brief, for National Academy\\nof Elder Law Attorneys and Guardian Community Trust, amicus curiae.\\n David Scott Hamilton and Dennis M. Sandoval, APLC on brief\\nfor Special Needs Alliance, amicus curiae.\\n Christopher C. Taub, Assistant Attorney General of Maine,\\nwith whom Janet T. Mills, Attorney General of Maine, and Susan P.\\n\\nHerman, Deputy Attorney General of Maine, were on brief, for\\nappellee.\\n Joseph H. Hunt, Assistant Attorney General, Halsey B. Frank,\\nU.S. Attorney, Alisa B. Klein, Attorney, Civil Division, Appellate\\nStaff, Casen B. Ross, Attorney, Civil Division, Appellate Staff,\\nRobert P. Charrow, General Counsel, U.S. Department of Health and\\nHuman Services, Janice L. Hoffman, Associate General Counsel, U.S.\\nDepartment of Health and Human Services, Susan Maxson Lyons, Deputy\\nAssociate General Counsel for Litigation, U.S. Department of\\nHealth and Human Services, David L Hoskins, Attorney, U.S.\\nDepartment of Health and Human Services, W. Charles Bailey, Jr.,\\nAttorney, U.S. Department of Health and Human Services, on brief\\nfor the United States of America, amicus curiae.\\n\\n\\n June 20, 2019\\n\\n KAYATTA, Circuit Judge. This case concerns transfers of\\n\\nassets by individuals age sixty-five or older into what are called\\n\\n\\\"pooled special needs trusts.\\\" The issue posed is whether such\\n\\ntransfers are among those transfers that the Medicaid statute\\n\\ncounts against eligibility for long-term care benefits. The\\n\\ndistrict court held that they are. For the following reasons, we\\n\\nagree.\\n\\n I.\\n\\n The pertinent facts are straightforward and materially\\n\\nundisputed.\\n\\n Yvonne R. Richardson is an elderly resident of\\n\\nSt. Joseph's Manor nursing facility in Portland, Maine. At the\\n\\ntime of the complaint, Richardson was eighty-seven years old and\\n\\nreceiving Medicaid benefits to help pay for the cost of her long-\\n\\nterm care. See generally 42 U.S.C. § 1396p(c)(1)(C)(i)(I)\\n\\n(listing covered long-term care benefits, including nursing\\n\\nfacility services). In January 2017, Richardson's conservator,\\n\\nBarbara Carlin, deposited $38,500 of the proceeds from the sale of\\n\\nRichardson's former home into an account with Maine Pooled\\n\\nDisability Trust (\\\"MPDT\\\"), a pooled special needs trust\\n\\nestablished pursuant to 42 U.S.C. § 1396p(d)(4)(C).\\n\\n Pooled special needs trusts allow disabled individuals\\n\\nwith relatively small amounts of money to pool their resources for\\n\\ninvestment and management purposes. Lewis v. Alexander, 685 F.3d\\n\\n\\n - 3 -\\n\\n325, 333 (3d Cir. 2012). They are designed to \\\"provide for\\n\\nexpenses that assistance programs such as Medicaid do not cover.\\\"\\n\\nId. (quoting Sullivan v. County of Suffolk, 174 F.3d 282, 284 (2d\\n\\nCir. 1999)). Richardson hoped to use her MPDT funds to pay for\\n\\n\\\"modest expenditures\\\" not covered by Medicaid \\\"that would greatly\\n\\nimprove her quality of life,\\\" such as large-print word-search and\\n\\ncrossword puzzle books, new clothing, sweets, manicures,\\n\\nmagazines, and a radio. She also intended to hire a private\\n\\ncaregiver who could take her on excursions outside the nursing\\n\\nfacility.\\n\\n Following Richardson's deposit of funds into her MPDT\\n\\naccount, the Maine Department of Health and Human Services\\n\\n(\\\"MDHHS\\\") issued a notice threatening to suspend Medicaid coverage\\n\\nfor her care at St. Joseph's Manor for \\\"3.53 months\\\" because\\n\\n\\\"[a]ssets were transferred\\\" and she \\\"did not get something of equal\\n\\nvalue\\\" in exchange. See 42 U.S.C. § 1396p(c)(1)(A) (penalizing an\\n\\ninstitutionalized individual's \\\"dispos[al] of assets for less than\\n\\nfair market value\\\"). In response, Richardson requested an\\n\\nadministrative hearing. She and MPDT also filed this lawsuit in\\n\\nfederal court challenging MDHHS's decision to suspend her Medicaid\\n\\ncoverage. The hearing officer subsequently stayed state\\n\\nadministrative proceedings pending resolution of the lawsuit.\\n\\nRichardson will continue to receive Medicaid benefits until the\\n\\nadministrative review of MDHHS's decision is complete.\\n\\n\\n - 4 -\\n\\n Richardson and MPDT's complaint included two counts, but\\n\\nonly the second is at issue here.1 That count asserts a claim\\n\\nunder 42 U.S.C. § 1983, seeking a declaration and injunction\\n\\npredicated on the assertion that Richardson's transfer of assets\\n\\ninto a pooled special needs trust is not a transfer that affects\\n\\nMedicaid eligibility. The district court dismissed the complaint\\n\\nunder Federal Rule of Civil Procedure 12(b)(6). Richardson, 2018\\n\\nWL 1077275, at *18.\\n\\n In so doing, the district court ruled that Richardson\\n\\nhad standing to challenge the decision to suspend her Medicaid\\n\\ncoverage, but her claim was not yet ripe because \\\"[a]ny penalty\\n\\n(and related adverse impact on [Richardson's] benefits) ha[d] been\\n\\nstayed pending her administrative appeal,\\\" such that her claims\\n\\n\\\"lack[ed] sufficient finality and definiteness\\\" for judicial\\n\\nreview. Id. at *4–5. The district court determined that MPDT had\\n\\nassociational standing and that MPDT's contention that MDHHS's\\n\\nruling was currently causing MPDT to lose both enrollees and funds\\n\\nrendered its claim ripe for adjudication. Finally, the district\\n\\n\\n\\n 1 The district court dismissed Count I, which alleged that\\nRichardson and \\\"others similarly situated\\\" in fact \\\"receive fair\\nmarket value from the expenditures the [MPDT] can make on their\\nbehalf\\\" and therefore should incur no transfer penalty, because it\\nwas premised on two provisions of the Medicaid statute that the\\ncourt found to be unenforceable under 42 U.S.C. § 1983. Richardson\\nex rel. Carlin v. Hamilton, No. 2:17-CV-00134-JAW, 2018 WL 1077275,\\nat *1, 13 (D. Me. Feb. 27, 2018). On appeal, MPDT does not contest\\nthat ruling.\\n\\n\\n - 5 -\\n\\ncourt ruled that MDHHS correctly applied the governing statute in\\n\\nconsidering transfers to pooled special needs trusts in\\n\\ndetermining eligibility.\\n\\n MPDT alone filed a timely notice of appeal. No party\\n\\ndisputes that MPDT has standing or that its claim is ripe. Nor do\\n\\nwe see any reason to question either standing or ripeness sua\\n\\nsponte. As the district court observed, because \\\"(1) one of MPDT's\\n\\nmembers, [Richardson], has standing to [sue]; (2) the interests at\\n\\nstake . . . are germane to MPDT's purpose; and (3) the relief\\n\\nrequested does not require the participation of other MPDT\\n\\nbeneficiaries in this litigation,\\\" id. at *9, MPDT has standing to\\n\\nbring its claims on behalf of its beneficiaries. See Council of\\n\\nIns. Agents & Brokers v. Juarbe-Jiménez, 443 F.3d 103, 108 (1st\\n\\nCir. 2006). And as to ripeness, no one cites any reason to doubt\\n\\nthat, as the district court found, MDHHS's ruling currently harms\\n\\nMPDT. We therefore proceed to the merits of the order granting\\n\\nMDHHS's motion to dismiss Count II, which we review \\\"de novo,\\n\\napplying the same criteria as the district court.\\\" Germanowski v.\\n\\nHarris, 854 F.3d 68, 71 (1st Cir. 2017) (quoting Carrero-Ojeda v.\\n\\nAutoridad de Energía Eléctrica, 755 F.3d 711, 717 (1st Cir. 2014)).\\n\\n II.\\n\\n Medicaid is a \\\"health insurance program for low-income\\n\\nindividuals . . . funded by both the federal government and state\\n\\ngovernments.\\\" Massachusetts v. Sebelius, 638 F.3d 24, 26 (1st\\n\\n\\n - 6 -\\n\\nCir. 2011) (citing 42 U.S.C. § 1396 et seq.). Medicaid is supposed\\n\\nto be a \\\"payer of last resort,\\\" id. (quoting Ark. Dep't of Health\\n\\n& Human Servs. v. Ahlborn, 547 U.S. 268, 291 (2006)), and Medicaid\\n\\neligibility criteria generally take an applicant's income and\\n\\nwealth into account, see Lewis, 685 F.3d at 332.\\n\\n Under Medicaid's prior asset-counting rules, inventive\\n\\n\\\"lawyers and financial planners . . . devised various ways to\\n\\n'shield' wealthier [applicants'] assets,\\\" including by placing\\n\\nassets in trusts. Johnson v. Guhl, 357 F.3d 403, 405 (3d Cir.\\n\\n2004). So, Congress amended the Medicaid scheme, aiming, as a\\n\\ngeneral matter, to treat trusts as assets available to\\n\\nbeneficiaries, thus counting against Medicaid eligibility. Lewis,\\n\\n685 F.3d at 333; see also Omnibus Budget Reconciliation Act of\\n\\n1993, Pub. L. No. 103–66, 107 Stat. 312 (1993) (\\\"OBRA\\\").\\n\\n Although state participation in Medicaid is voluntary,\\n\\nparticipating states must adopt plans that meet certain\\n\\nrequirements that federal statutes and regulations impose. See\\n\\nArmstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1382\\n\\n(2015). Failure to comply may jeopardize federal funds. See 42\\n\\nU.S.C. § 1396a(a). Among these requirements, states must \\\"comply\\n\\nwith the provisions of section 1396p . . . with respect\\n\\nto . . . transfers of assets . . . and [the] treatment of certain\\n\\ntrusts.\\\" 42 U.S.C. § 1396a(a)(18). This case turns on the\\n\\n\\n\\n\\n - 7 -\\n\\nrelationship between two particular provisions of section 1396p:\\n\\nThe Trust Provision and the Transfer Provision.\\n\\n A.\\n\\n The Trust Provision, section 1396p(d), sets forth\\n\\nseveral general rules addressing the treatment of assets held in\\n\\ntrust (the trust corpus) and the treatment of payments out of\\n\\ntrusts. Assets in revocable trusts are considered resources\\n\\navailable to the applicant for purposes of determining his or her\\n\\nentitlement to benefits. Id. § 1396p(d)(1), (3)(A)(i). Payments\\n\\nfrom such trusts are considered either income of the applicant or\\n\\nassets disposed of by the applicant under the Transfer Provision.\\n\\nId. § 1396p(d)(3)(A)(ii), (iii). Assets in irrevocable trusts are\\n\\nalso considered available resources to the extent that payments\\n\\ncould be made from such trusts for the applicant's benefit. Id.\\n\\n§ 1396p(d)(3)(B)(i). And payments from these trusts are likewise\\n\\nconsidered either income or transferred assets. Id.\\n\\n§ 1396p(d)(3)(B)(i)(I), (II). Further, portions of irrevocable\\n\\ntrusts from which no payment could be made to the applicant are\\n\\nconsidered transferred assets, and the value of the trust for\\n\\npurposes of the Transfer Provision is determined by including the\\n\\namount of any payments made from such portion of the trust. Id.\\n\\n§ 1396p(d)(3)(B)(ii).\\n\\n These rules governing the treatment of trust corpuses\\n\\nand payments out of trusts do not apply universally. The 1993 OBRA\\n\\n\\n - 8 -\\n\\namendments exempted three types of trusts for disabled individuals\\n\\n-- special needs trusts, Medicaid income trusts, and pooled special\\n\\nneeds trusts -- from the eligibility rules set out in the Trust\\n\\nProvision. See id. § 1396p(d)(4)(A), (B), (C). This case\\n\\nconcerns pooled special needs trusts.\\n\\n A pooled special needs trust \\\"contain[s] the assets of\\n\\nan individual who is disabled (as defined in [42 U.S.C.\\n\\n§ 1382c(a)(3)]).\\\" Id. § 1396p(d)(4)(C). To qualify, such trusts\\n\\nmust meet the following conditions:\\n\\n (i) The trust is established and managed by a\\n nonprofit association.\\n\\n (ii) A separate account is maintained for each\\n beneficiary of the trust, but, for purposes of\\n investment and management of funds, the trust\\n pools these accounts.\\n\\n (iii) Accounts in the trust are established\\n solely for the benefit of individuals who are\\n disabled . . . by the parent, grandparent, or\\n legal guardian of such individuals, by such\\n individuals, or by a court.\\n\\n (iv) To the extent that amounts remaining in\\n the beneficiary's account upon the death of\\n the beneficiary are not retained by the trust,\\n the trust pays to the State from such\\n remaining amounts in the account an amount\\n equal to the total amount of medical\\n assistance paid on behalf of the beneficiary\\n under the State plan under this subchapter.\\n\\nId. No one disputes on this appeal that MPDT satisfies these\\n\\nconditions.\\n\\n\\n\\n\\n - 9 -\\n\\n B.\\n\\n The Transfer Provision, section 1396p(c), also sets\\n\\nforth a broad general rule: If an applicant or that person's\\n\\nspouse \\\"disposes of assets for less than fair market value on or\\n\\nafter the look-back date,\\\" the applicant is ineligible for\\n\\nservices, including long-term nursing care, for a period of time\\n\\nbased on the value of the assets disposed. Id. § 1396p(c)(1)(A).\\n\\nFor an institutionalized individual, the look-back date is a date\\n\\nup to sixty months before the first date as of which the individual\\n\\nis both institutionalized and has applied for benefits. Id.\\n\\n§ 1396p(c)(1)(B)(i)–(ii). Essentially, this means that if a\\n\\nperson disposes of assets for less than fair market value while\\n\\nreceiving benefits or shortly before applying for benefits, the\\n\\ndisposition will postpone eligibility. In short, you can't make\\n\\nyourself eligible for Medicaid faster by disposing of your assets\\n\\nunless you act before the look-back date. Here, there is no\\n\\ndispute that Richardson's transfer of assets occurred after the\\n\\nlook-back date.\\n\\n The Transfer Provision also contains a list of\\n\\nexceptions to its general rule governing the disposition of assets.\\n\\nEspecially relevant here are the two exceptions provided by\\n\\nsubsections 1396p(c)(2)(B)(iii) and (iv). First, subsection (iii)\\n\\napplies to assets transferred to trusts, including pooled special\\n\\nneeds trusts, established for an applicant's disabled child.\\n\\n\\n - 10 -\\n\\nSecond, subsection (iv) applies to assets \\\"transferred to a trust\\n\\n(including a trust described in subsection (d)(4) of this section)\\n\\nestablished solely for the benefit of an individual under 65 years\\n\\nof age who is disabled.\\\" Id. § 1396p(c)(2)(B)(iv) (emphasis\\n\\nadded). While we assume that MPDT is a trust \\\"described in\\n\\nsubsection (d)(4),\\\" and that Richardson's MPDT account was\\n\\nestablished for her own benefit, she was not younger than sixty-\\n\\nfive when her conservator deposited the funds in the trust.\\n\\n III.\\n\\n We consider first the breadth of the general rule set\\n\\nforth by the Transfer Provision: That general rule applies, as\\n\\nrelevant here, when a putative beneficiary \\\"disposes of assets for\\n\\nless than fair market value.\\\" Id. § 1396p(c)(1)(A). The statute\\n\\ndoes not define \\\"dispose,\\\" so we assume the word carries its\\n\\nordinary meaning. Merriam Webster defines \\\"dispose,\\\" in relevant\\n\\npart, as \\\"to transfer to the control of another.\\\" Merriam\\n\\nWebster's Collegiate Dictionary (10th ed. 1993). The Sixth Edition\\n\\nof Black's Law Dictionary defines \\\"dispose of\\\" as \\\"to alienate or\\n\\ndirect the ownership of property . . . to pass into the control of\\n\\nsomeone else; to alienate, relinquish, or get rid of.\\\" Dispose\\n\\nof, Black's Law Dictionary (6th ed. 1990). The statute's text\\n\\nequates \\\"dispose\\\" with \\\"transfer.\\\" Likewise, the Ninth Edition of\\n\\nBlack's defines \\\"transfer\\\" as \\\"[a]ny mode of disposing of or\\n\\nparting with an asset or interest in an asset.\\\" Transfer, Black's\\n\\n\\n - 11 -\\n\\nLaw Dictionary (9th ed. 2009). Trust law, in turn, regards a\\n\\ntransfer or conveyance of property as necessary to create a valid\\n\\ntrust. 76 Am. Jur. 2d Trusts § 47 (2018).\\n\\n In short, all principal resources strongly indicate that\\n\\nwhen a person places her property into a trust (and most certainly\\n\\nan irrevocable trust), thereby surrendering control of the\\n\\nproperty to the trustee, she has disposed of the property. In the\\n\\nabsence of some reasonably specific instruction to the contrary,\\n\\nit follows that the Transfer Provision's general rule covers the\\n\\nconveyance of property to a trust, including a pooled special needs\\n\\ntrust like MPDT. That the Transfer Provision includes exceptions\\n\\nfor transfers to pooled special needs trusts in two circumstances\\n\\nreinforces this conclusion. See 42 U.S.C. § 1396p(c)(2)(B)(iii)–\\n\\n(iv). The presence of specifically enumerated exceptions also\\n\\nindicates that Congress likely intended to make no other exceptions\\n\\napart from those specified. See Sony BMG Music Entertainment v.\\n\\nTenenbuam, 660 F.3d 487, 499 (1st Cir. 2011) (citing Tenn. Valley\\n\\nAuth. v. Hill, 437 U.S 152, 188 (1978)).\\n\\n MPDT characterizes the foregoing textual analysis as\\n\\nunduly myopic. MPDT correctly observes that we must rest our\\n\\nanalysis on the statute as a whole, giving due weight to the\\n\\ncontext in which the text at issue appears. When we do this, MPDT\\n\\ncontends, we should conclude that the Transfer and Trust Provisions\\n\\nare \\\"cognate subsections\\\" with their \\\"own area[s] of operation\\\"\\n\\n\\n - 12 -\\n\\nthat do not overlap except as \\\"explicitly specified.\\\" Under this\\n\\nview, the Trust Provision \\\"broadly and comprehensively regulates\\n\\nthe impact on Medicaid eligibility of trusts created or funded by\\n\\nthe individuals seeking Medicaid benefits.\\\" And since nothing in\\n\\nthe Trust Provision states that a transfer of assets into a pooled\\n\\nspecial needs trust will affect eligibility, MPDT reasons, that is\\n\\nthe end of the matter.\\n\\n To underpin this view of how the two provisions interact,\\n\\nMPDT and its supporting amici point to the treatment of irrevocable\\n\\ntrusts in subsection 1396p(d)(3)(B). Subsection 1396p(d)(3)(B)(i)\\n\\nspecifies that the portion of the trust corpus from which payments\\n\\ncould be made to the individual will be deemed available to the\\n\\nindividual, and payments from an irrevocable trust for any purpose\\n\\nother than to or for the benefit of the individual \\\"shall be\\n\\nconsidered a transfer of assets by the individual subject to [the\\n\\nTransfer Provision].\\\" Subsection 1396p(d)(3)(B)(ii) further\\n\\nprovides that any portion of an irrevocable trust from which no\\n\\npayment could be made to the individual \\\"shall be considered, as\\n\\nof the date of establishment of the trust . . . to be assets\\n\\ndisposed of by the individual for purposes of [the Transfer\\n\\nProvision].\\\" MPDT and amici argue that these commands to treat\\n\\ncertain parts of the corpus of or payments from an irrevocable\\n\\ntrust as subject to the transfer penalty give rise to a negative\\n\\n\\n\\n\\n - 13 -\\n\\ninference that establishing an irrevocable trust not penalized\\n\\nunder these subsections incurs no transfer penalty.\\n\\n It appears that the Centers for Medicare and Medicaid\\n\\nServices (\\\"CMS\\\"), the arm of the Department of Health and Human\\n\\nServices (\\\"HHS\\\") that interprets the Medicaid statute, might have\\n\\nshared the view that the specific commands of the Trust Provision\\n\\ncan take priority over the more general commands of the Transfer\\n\\nProvision. We say \\\"might\\\" because CMS seemed to invoke this view\\n\\nonly when necessary to avoid a potential double penalty (e.g.,\\n\\npenalizing the same transfer of assets twice). State Medicaid\\n\\nManual, Health Care Financing Administration Pub. 45–3,\\n\\nTransmittal 64, § 3259.6(G) (Nov. 1994) (\\\"To avoid such a double\\n\\npenalty, application of one provision must take precedence over\\n\\napplication of the other provision.\\\" (emphasis added))\\n\\n[hereinafter \\\"Transmittal 64\\\"]. In any event, even assuming this\\n\\nview to be correct, MPDT and amici run into trouble in the very\\n\\nnext subsection. Subsection 1396p(d)(4) states that the entire\\n\\nTrust Provision (including those portions of\\n\\nsubsection 1396p(d)(3) upon which MPDT relies to draw a negative\\n\\ninference precluding application of the Transfer Provision in some\\n\\ninstances) does not apply to pooled special needs trusts. As the\\n\\nSecond Circuit has observed, \\\"[S]ubparagraph (d)(4) exempts\\n\\nqualifying trusts from the rules in (d)(3) but is silent about the\\n\\n\\n\\n\\n - 14 -\\n\\nnature or scope of the rules the agency should apply in their\\n\\nstead.\\\" Sai Kwan Wong v. Doar, 571 F.3d 247, 260 (2d Cir. 2009).\\n\\n MPDT would nevertheless have us conclude that the\\n\\nexemption of pooled special needs trusts from the commands of the\\n\\nTrust Provision leaves such trusts, for present purposes, exempt\\n\\nas well from the Transfer Provision's general rule. But, like the\\n\\nSecond Circuit, we are \\\"not inclined to infer from statutory\\n\\nsilence a congressional intent to have no rules whatsoever apply\\n\\nto income placed in qualifying (d)(4) trusts.\\\" Id. Furthermore,\\n\\nas we have already explained, the Transfer Provision broadly\\n\\napplies to any disposition of assets to a trust (at least when not\\n\\noverridden by the specific treatment of the Trust Provision).\\n\\nMoreover, were MPDT correct that a transfer of assets to a pooled\\n\\nspecial needs trust is not a disposition subject to the Transfer\\n\\nProvision, that Provision's express exceptions for certain such\\n\\ntrusts in subsections 1396p(c)(2)(B)(iii) and (iv) would be\\n\\nentirely irrelevant. Lawless v. Steward Health Care Sys., LLC,\\n\\n894 F.3d 9, 23 (1st Cir. 2018) (\\\"[C]ourts should try to avoid\\n\\ninterpretations that render statutory language mere surplusage.\\\").\\n\\n In an effort to parry the notion that its reading renders\\n\\nsubsections 1396p(c)(2)(B)(iii) and (iv) superfluous, MPDT argues\\n\\nthat the Transfer Provision only applies to transfers of assets to\\n\\nthird-party trusts -- not to so-called \\\"self-settled\\\" trusts\\n\\ncreated for the benefit of the individual who created them. MPDT\\n\\n\\n - 15 -\\n\\ncontends that the four exceptions to the general transfer rule\\n\\nlaid out in subsections 1396p(c)(2)(B)(i) through (iv) all involve\\n\\ntrust transactions for the benefit of someone other than the\\n\\napplicant. Those subsections exempt assets transferred: (i) to\\n\\nthe individual's spouse or to another for the benefit of the\\n\\nspouse, (ii) from the individual's spouse to another for the\\n\\nbenefit of the spouse, (iii) to the individual's child or to a\\n\\ntrust for the individual's child, and (iv) to a trust, including\\n\\na trust of the kind described in 42 U.S.C. § 1396p(d)(4),\\n\\nestablished for the benefit of a disabled individual under age\\n\\nsixty-five. If the exemptions only deal with transfers to or for\\n\\nthe benefit of third parties, the argument goes, the relative\\n\\ncomprehensiveness of the Trust Provision becomes more apparent --\\n\\nand we may overlook the Transfer Provision's apparently clear\\n\\napplication to the transfer at issue here.\\n\\n This argument requires a more creative reading of the\\n\\ntext of subsection 1396p(c)(2)(B)(iv) than we are willing to\\n\\nundertake. MPDT would have us hold that \\\"for the benefit of an\\n\\nindividual under 65 years of age who is disabled\\\" means for the\\n\\nbenefit of such an individual other than the applicant. But, as\\n\\nthe Eighth Circuit explained in rejecting this same contention,\\n\\n\\\"the plain language of this paragraph does not address, let alone\\n\\nrestrict, the creator of the trust.\\\" Ctr. for Special Needs Tr.\\n\\nAdmin. v. Olson, 676 F.3d 688, 702 (8th Cir. 2012). If Congress\\n\\n\\n - 16 -\\n\\nintended subsection 1396p(c)(2)(B)(iv) to apply only to trusts\\n\\nbenefiting disabled individuals other than the applicant, we would\\n\\nexpect a clearer indication of that intent than the use of the\\n\\narticle \\\"an\\\" rather than \\\"the\\\" before the word \\\"individual.\\\" As\\n\\nthe subsection stands, the phrase \\\"an individual\\\" includes the\\n\\napplicant herself. Moreover, \\\"[b]y referencing\\n\\n'subsection (d)(4),' paragraph 1396p(c)(2)(b)(iv) necessarily\\n\\nincludes trusts created by the beneficiary, because\\n\\nsubsection (d)(4)(C) includes trusts created by the beneficiary.\\\"\\n\\nId. Finally, even if we were to read the Transfer Provision's\\n\\nexceptions as limited to trusts established for other persons, we\\n\\nwould have simply limited the scope of the exceptions without\\n\\nlimiting the scope of that Provision's general rule.\\n\\n MPDT also puts forward a redundancy argument. To advance\\n\\nthis claim, MPDT points again to subsection 1396p(d)(3)(B)(ii) of\\n\\nthe Trust Provision. MPDT reasons that this subsection would be\\n\\nunnecessary if the Transfer Provision already, by its own force,\\n\\nclassified the transfer of assets to a trust, unless excepted, as\\n\\ngrounds for an eligibility penalty. But this claimed redundancy\\n\\nsays nothing about the impact of the Transfer Provision on exempt\\n\\ntrusts, like MPDT, as subsection 1396p(d)(3)(B)(ii) does not apply\\n\\nto funds placed in these trusts. See 42 U.S.C. § 1396p(d)(4).\\n\\nMoreover, as we have already explained, MPDT's alternative reading\\n\\nwould itself treat as surplusage subsections 1396p(c)(2)(B)(iii)\\n\\n\\n - 17 -\\n\\nand (iv), which expressly exempt from the Transfer Provision\\n\\ncertain transfers into pooled special needs trusts, but not others.\\n\\nGiven a choice between two potential redundancies, we are inclined\\n\\nto opt for the one that does not require us to ignore the most\\n\\nnatural reading of the text of the Transfer Provision's general\\n\\nrule.\\n\\n Properly returning its focus to that general rule, MPDT\\n\\nand amici also claim that no transfer or disposal of assets\\n\\noccurred at all in this case because the funds were \\\"given to the\\n\\ntrustee of a self-settled trust.\\\" Citing\\n\\nsubsection 1396p(d)(3)(B)(i), MPDT maintains that such assets\\n\\nremain \\\"available\\\" to beneficiaries, albeit not in the case of\\n\\npooled special needs trusts. MPDT cites no authority for its\\n\\nassertion that assets transferred to self-settled pooled special\\n\\nneeds trusts \\\"still belong to the applicant,\\\" such that \\\"they have\\n\\nnot been transferred.\\\" Rather, as MDHHS avers, the conveyance at\\n\\nissue here constituted an \\\"irrevocable transfer\\\" of legal title to\\n\\na trustee with \\\"sole and uncontrolled discretion\\\" to make\\n\\ndistributions for the benefit of the beneficiary. As we have\\n\\nalready explained, the customary meaning of the statutory word\\n\\n\\\"disposes\\\" in the general transfer rule fairly encompasses such a\\n\\nconveyance. Indeed, MPDT points to no definition of the term that\\n\\nwould not encompass such a conveyance. We therefore cannot agree\\n\\nwith MPDT that the entire Transfer Provision is inapplicable when\\n\\n\\n - 18 -\\n\\na putative beneficiary transfers her assets to a self-settled\\n\\npooled special needs trust.\\n\\n Taking an alternative track, MPDT seems to suggest that\\n\\nour reading of the statute actually leaves CMS no room to allow\\n\\nthe Trust Provision's specific mandates to, in some situations,\\n\\noverride the Transfer Provision's general rule. And because,\\n\\nwithout this latitude, reasons MPDT, double penalties (for\\n\\nineligibility and availability or for two transfers) would\\n\\nnecessarily occur, our reading must be incorrect. But, as we noted\\n\\nearlier, Transmittal 64 seems to state that the Trust Provision\\n\\nshould be \\\"given precedence\\\" when a transfer of assets into a\\n\\nnonexempt trust would be otherwise penalized twice.\\n\\nTransmittal 64, § 3259.6(G). MPDT never explains why CMS would\\n\\nnot still have this leeway under our reading or even how frequently\\n\\n(and unavoidably) such double penalties might occur. Furthermore,\\n\\nas we have already observed, the entirety of the Trust Provision\\n\\ndoes not apply to pooled special needs trusts. So, any carve-out\\n\\nfrom the transfer rules that the Trust Provision might create would\\n\\nhave no application to the trust at issue in this case.\\n\\n In light of the complexity of the foregoing discussion,\\n\\nwe summarize our reading of the statute: Subsection 1396p(c)(1)(A)\\n\\nof the Transfer Provision plainly and broadly treats as an\\n\\neligibility-delaying transfer any disposition of beneficiary\\n\\nassets to a trust for less than fair market value;\\n\\n\\n - 19 -\\n\\nsubsection 1396p(c)(2)(B)(iv) of the Transfer Provision creates an\\n\\nexception from that general rule for certain transfers to pooled\\n\\nspecial needs trusts established for the benefit of the\\n\\nbeneficiary, but only when the beneficiary is under sixty-five\\n\\nyears of age; and subsection 1396p(d)(3)(B) of the Trust Provision\\n\\nmay also implicitly except from that general rule certain transfers\\n\\nto irrevocable trusts, but that subsection does not apply to pooled\\n\\nspecial needs trusts, which are exempted from the whole of the\\n\\nTrust Provision under subsection 1396p(d)(4)(C). So, when a\\n\\nbeneficiary who is age sixty-five or older gives up her assets for\\n\\nless than fair market value to a pooled special needs trust, there\\n\\nhas been a transfer that triggers a temporary period of\\n\\nineligibility.\\n\\n Our reading is consistent with the holdings and dicta of\\n\\nother courts that have considered the issue. See Olson, 676 F.3d\\n\\nat 702 (\\\"By the omission of an age limit in the 'C' paragraph of\\n\\nsubsection (d), Congress's intent was to permit disabled persons\\n\\nover age 65 to participate in 'C' pooled trusts.\\\"); Cox v. Iowa\\n\\nDep't of Human Servs., 920 N.W.2d 545, 553 (Iowa 2018)\\n\\n(distinguishing \\\"between an individual's participation in a pooled\\n\\nspecial needs trust and the individual's temporary\\n\\ndisqualification from Medicaid long-term care benefits based on\\n\\nthat participation\\\"); In re Pooled Advocate Trust, 813 N.W.2d 130,\\n\\n142 (S.D. 2012) (noting that the Medicaid statute\\n\\n\\n - 20 -\\n\\n\\\"differentiate[s] between participation in a pooled trust and\\n\\nsubsequent penalty periods and delays in eligibility for transfers\\n\\nto the trust\\\" (citing Olson, 676 F.3d at 702)).\\n\\n So too, agency interpretations of the Trust and Transfer\\n\\nProvisions bolster our understanding of the statutory language.\\n\\nThe U.S. Supreme Court has recognized that \\\"even relatively\\n\\ninformal\\\" CMS guidance \\\"'warrant[s] respectful consideration' due\\n\\nto the complexity of the [Medicaid] statute and the considerable\\n\\nexpertise of the administering agency.\\\" Cmty. Health Ctr. v.\\n\\nWilson-Coker, 311 F.3d 132, 138 (2d Cir. 2002) (quoting Wis. Dep't\\n\\nof Health & Family Servs. v. Blumer, 534 U.S. 473, 497 (2002)).\\n\\nHere, the district court, the parties, and amici focus on three\\n\\nseparate agency interpretations of the relevant provisions: State\\n\\nAgency Regional Bulletin No. 2008-05 (the \\\"Bulletin\\\"),\\n\\nsections 3257 through 3259 of the State Medicaid Manual\\n\\n(\\\"Transmittal 64\\\"),2 and the Social Security Administration's\\n\\nProgram Operations Manual (\\\"SSA Manual\\\").\\n\\n As we have already explained, Transmittal 64 can indeed\\n\\nbe read as stating that the specific commands of the Trust\\n\\nProvision take precedence over the Transfer Provision's general\\n\\nrule, at least when necessary to avoid a potential double penalty.\\n\\n\\n\\n 2Updates to the State Medicaid Manual are known as\\n\\\"transmittals.\\\" CMS issued Transmittal 64 shortly after OBRA was\\npassed in 1993.\\n\\n\\n - 21 -\\n\\nBut Transmittal 64 also makes clear that, while certain trusts are\\n\\nexempt from both the Trust and Transfer Provisions, \\\"a special\\n\\nneeds trust established for a disabled individual who is age 66\\n\\ncould be subject to a transfer penalty.\\\" Transmittal 64\\n\\n§ 3259.7(B). MDHHS also correctly notes that there is no prospect\\n\\nof a double penalty in this case. That is, while a transfer of\\n\\nassets to a pooled special needs trust may be subject to a penalty\\n\\nperiod under the transfer rule, funds in pooled special needs\\n\\ntrusts are not considered available -- and therefore are not\\n\\n\\\"penalized\\\" for eligibility purposes -- under the Trust Provision.\\n\\nSo, although Transmittal 64 states that \\\"the trust provisions are\\n\\ngiven precedence in dealing with assets placed in trusts\\\" to avoid\\n\\nsuch a double penalty, this guidance is irrelevant here because\\n\\nassets placed in pooled special needs trusts are never subject to\\n\\na double penalty. Id. § 3259.6(G).\\n\\n The CMS Boston Regional Office's 2008 Bulletin\\n\\nexplicitly supports our reading of the Medicaid statute, stating,\\n\\nin no uncertain terms: \\\"A pooled trust established by an\\n\\nindividual age 65 or older is not exempt from the transfer of\\n\\nassets provisions.\\\" Ctrs. for Medicare & Medicaid Servs., State\\n\\nAgency Reg'l Bull. No. 2008-05, Medicaid Eligibility --\\n\\nApplication of Transfer of Assets Penalty for Pooled Trust (2008).\\n\\nIt further provides:\\n\\n\\n\\n\\n - 22 -\\n\\n Although a pooled trust may be established for\\n beneficiaries of any age, funds placed in a\\n pooled trust established for an individual age\\n 65 or older may be subject to penalty as a\\n transfer of assets for less than fair market\\n value. When a person places funds in a trust,\\n the person gives up ownership of those funds.\\n Since the individual generally does not\\n receive anything of comparable value in\\n return, placing funds in a trust is usually a\\n transfer for less than fair market value. The\\n statute does provide an exception to imposing\\n a transfer penalty for funds that are placed\\n in a trust established for a disabled\\n individual. However, only trusts established\\n for a disabled individual age 64 or younger\\n are exempt from application of the transfer of\\n assets penalty provisions . . . .\\n\\nId.\\n\\n The Social Security Administration reaches the same\\n\\nconclusion in its Program Operations Manual, \\\"the publicly\\n\\navailable operating instructions for processing Social Security\\n\\nClaims.\\\" In re Pooled Advocate Trust, 813 N.W.2d at 145 (quoting\\n\\nWash. State Dep't of Soc. & Health Servs. v. Guardianship Estate\\n\\nof Keffeler, 537 U.S. 371, 385 (2003)). The SSA Manual\\n\\nacknowledges that, while \\\"[t]here is no age restriction under [the\\n\\nTrust Provision's] exception,\\\" it also states that \\\"a transfer of\\n\\nresources to a trust for an individual age 65 or over may result\\n\\nin a transfer penalty.\\\" Soc. Sec. Admin., Program Operations\\n\\nManual System, Exceptions to Counting Trusts Established on or\\n\\nafter 1/1/00, SI 01120.203(B)(2)(a); see also Social Sec. Admin,\\n\\nProgram Operations Manual System, Exceptions - Transfers to a\\n\\n\\n\\n - 23 -\\n\\nTrust, SI 01150.121(A)(3) (\\\"The period of ineligibility does not\\n\\napply to an individual who transfers a resource to a trust\\n\\nestablished for the sole benefit of an individual including himself\\n\\nor herself who is under age 65 and is blind or disabled.\\\").\\n\\n Amici argue that the Bulletin's interpretation must be\\n\\nlegally incorrect because it would \\\"nullif[y]\\\" the exemption of\\n\\npooled special needs trusts from section 1396p(d). But, as MDHHS\\n\\ncounters, \\\"application of the Transfer Provision to the funding of\\n\\npooled special needs trusts does not prevent the Trust Provision\\n\\nfrom conferring real and tangible benefits.\\\" Rather, assets in\\n\\npooled special needs trusts are never counted as available\\n\\nresources or income under the Trust Provision, and transfers into\\n\\nsuch trusts by applicants before they reach the age of sixty-five\\n\\nare not subject to a penalty period at all. See In re Pooled\\n\\nAdvocate Trust, 813 N.W.2d at 143 (noting the need to\\n\\n\\\"differentiate between being denied Medicaid long-term care\\n\\nassistance and being subject to a delay in eligibility for Medicaid\\n\\nlong-term care assistance via a penalty period\\\" and explaining\\n\\nthat \\\"[t]he applicant may . . . qualify for medical-only coverage\\n\\nduring the penalty period[,] . . . and after the penalty period\\n\\nexpires, the applicant may thereafter be eligible for long-term\\n\\ncare assistance.\\\"). Although the impact of a penalty period on\\n\\neligibility for long-term care benefits is certainly not\\n\\n\\n\\n\\n - 24 -\\n\\nnegligible, neither are the potential benefits that remain from\\n\\nparticipation in timely-created pooled special needs trusts.\\n\\n It is true that CMS recognized in Transmittal 64 that\\n\\napplying the Transfer Provision to so-called Miller trusts would\\n\\nrender them ineffective, so CMS allows certain Miller trusts to\\n\\navoid a transfer penalty. See Transmittal 64 § 3259.7(B)(2). MPDT\\n\\ncontends that such an allowance conflicts with CMS's view that the\\n\\nTransfer Provision applies to some exempt (d)(4) trusts, like MPDT,\\n\\nsignaling that this interpretation must be incorrect. But\\n\\nTransmittal 64 provides only that a transfer penalty is not\\n\\ntriggered when \\\"resources placed in [a] trust are used to benefit\\n\\nthe individual, and the trust purchases items or services for the\\n\\nindividual at a fair market value.\\\" Id. Of course, if the\\n\\ndisposition of assets is indeed for fair market value, the Transfer\\n\\nProvision -- by its plain terms -- does not apply.3\\n\\n To the extent that MPDT further asserts that the plain-\\n\\ntext interpretation of the Trust and Transfer Provisions runs\\n\\nagainst the congressional purpose motivating their enactment, it\\n\\ndiscounts Congress's clear intent to ensure that individuals\\n\\n\\\"exhaust their own resources before turning to the public for\\n\\nassistance.\\\" Lewis, 685 F.3d at 332–33; see also Sai Kwan Wong,\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408779/\", \"author_raw\": \"KAYATTA, Circuit Judge\"}, {\"author\": \"3 As noted above, and as Judge Barron's concurring\", \"type\": \"concurrence\", \"text\": \"3 As noted above, and as Judge Barron's concurring opinion\\nexplains in detail, MPDT does not argue on this appeal that\\nRichardson received fair market value in the form of the\\nexpenditures MPDT would make on her behalf.\\n\\n\\n - 25 -\\n\\n571 F.3d at 261 (noting \\\"Congress's general instruction that\\n\\nindividuals must contribute their available income to the cost of\\n\\ntheir institutional care\\\"). As the United States asserts,\\n\\n\\\"Congress sought to ensure that state resources would be available\\n\\nfor the low-income individuals who are most in need.\\\"\\n\\n IV.\\n\\n In the end, we need not and do not decide that MPDT's\\n\\ninterpretation of the statute lacks reason. Rather, we hold that\\n\\nthe district court's judgment granting MDHHS's motion to dismiss\\n\\nrests on a more reasonable interpretation of the statute. That\\n\\njudgment is therefore affirmed.\\n\\n - Concurring Opinion Follows -\\n\\n\\n\\n\\n - 26 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408779/\", \"author_raw\": \"3 As noted above, and as Judge Barron's concurring\"}, {\"author\": \"BARRON, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"BARRON, Circuit Judge, concurring. I join in full our\\n\\nopinion affirming the District Court's dismissal of Maine Pooled\\n\\nDisability Trust's (\\\"MPDT\\\") claim that \\\"no statute imposes a\\n\\ntransfer of assets penalty for transfers to an exempt pooled\\n\\nspecial needs trust such as the MPDT.\\\" I think it important to\\n\\nemphasize, though, one point that our opinion notes: MPDT failed\\n\\nto make any developed argument to us that the Maine Department of\\n\\nHealth and Human Services (\\\"MDHHS\\\") violated its statutory right\\n\\nto operate a pooled special needs trust pursuant to 42 U.S.C.\\n\\n§ 1396p(d)(4)(C) by not recognizing the settlement of such a trust\\n\\nas a transfer of assets for \\\"fair market value.\\\" 42 U.S.C.\\n\\n§ 1396p(c)(1)(A).\\n\\n In consequence of that failure, we have no occasion to\\n\\naddress that distinct legal contention. See United States v.\\n\\nZannino, 895 F.2d 1, 17 (1st Cir. 1990). But, in future cases,\\n\\nsettlors of pooled special needs trusts, and perhaps the trusts\\n\\nthemselves, may well seek to argue in support of their § 1983 suits\\n\\nagainst states seeking to impose the transfer penalty that no such\\n\\npenalty may be imposed, because the settlor receives \\\"fair market\\n\\nvalue\\\" for the funds used to create the trust from the expenditures\\n\\nthat the trust makes for the settlor's benefit. And, in the event\\n\\nthat argument is pressed in such future cases,4 they may well bring\\n\\n\\n 4For reasons not relevant here, the District Court determined\\nbelow that it had no jurisdiction to hear the settlor's § 1983\\n\\n\\n - 27 -\\n\\nto the fore an issue that we bypass here, but that may bear on how\\n\\nthese technical statutory provisions should be construed: whether\\n\\nthe Centers for Medicare & Medicaid Services (\\\"CMS\\\") is of the\\n\\nview that the settlement of a pooled special needs trust may\\n\\nconstitute a transfer of assets for \\\"fair market value\\\" within the\\n\\nmeaning of 42 U.S.C. § 1396p(c)(1)(A)?\\n\\n I thus write separately to explain why that issue may\\n\\nmatter, in hopes of clearing away some possible confusion down the\\n\\nline. For, whether CMS considers the settlor of a pooled special\\n\\nneeds trust to have received \\\"fair market value\\\" from the\\n\\nexpenditures that the trust makes on the settlor's behalf may very\\n\\n\\nclaim. See Richardson ex rel. Carlin v. Hamilton, No. 2:17-CV-\\n00134-JAW, 2018 WL 1077275, at *5 (D. Me. Feb. 27, 2018). The\\nDistrict Court also concluded that the trust itself -- MPDT -- was\\nnot positioned to argue, under § 1983, that it had an enforceable\\nright that had been violated by MDHHS, insofar as MPDT sought to\\npremise that enforceable right on 42 U.S.C. § 1396p(c) (the\\n\\\"Transfer Provision\\\"). See id. at *12-13. MPDT does not challenge\\nthat ruling and thus makes no contention that, even if the transfer\\nrule does apply, no transfer penalty may be imposed because its\\n\\\"fair market value\\\" condition has been met. See 42 U.S.C.\\n§ 1396p(c)(1)(A). There is precedent to suggest, however, that\\nsettlors of such trusts -- and perhaps the trusts themselves -- may\\nsue states under § 1983 for subjecting deposits into such trusts\\nto the transfer penalty in circumstances where, although the rule\\napplies, the terms of the rule have been complied with such that\\nno penalty should be imposed. See, e.g., Dultz v. Velez, 726 F.\\nSupp. 2d 480, 490 (D.N.J. 2010) (\\\"conclu[ding] that § 1396p(c)(1)\\ncreates an individually enforceable right\\\"); Aplin v. McCrossen,\\nNo. 12-CV-6312FPG, 2014 WL 4245985, at *20 (W.D.N.Y. Aug. 26, 2014)\\n(\\\"[C]ompliance with the federal transfer of assets statute is\\nmandatory on the States and is enforceable under 42 U.S.C.\\n§ 1983.\\\"); cf. Johnson v. Guhl, 91 F. Supp. 2d 754, 770 (D.N.J.\\n2000) (holding that \\\"§ 1396p(c)(2)(D) provides for a cause of\\naction under § 1983\\\").\\n\\n\\n - 28 -\\n\\nwell affect the persuasiveness of a contention by a future settlor\\n\\nof such a trust -- or by the trust itself -- that no transfer\\n\\npenalty should be imposed. After all, this body of law is quite\\n\\ntechnical, and the case for according deference to a persuasive\\n\\ninterpretation of it by CMS would seem to me to be quite strong.\\n\\nSee United States v. Mead Corp., 533 U.S. 218, 235 (2001) (\\\"There\\n\\nis room . . . to raise a Skidmore claim . . . where the regulatory\\n\\nscheme is highly detailed, and [the agency] can bring the benefit\\n\\nof specialized experience to bear on the subtle questions in th[e]\\n\\ncase.\\\" (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)).\\n\\n I.\\n\\n CMS's state Medicaid eligibility manual, Transmittal 64,\\n\\nprovides that no transfer penalty should be imposed on the\\n\\nsettlement of an exempt trust if \\\"resources placed in the trust\\n\\nare used to benefit the individual, and the trust purchases items\\n\\nand services for the individual at fair market value.\\\" State\\n\\nMedicaid Manual, Health Care Financing Administration Pub. 45–3,\\n\\nTransmittal 64, § 3259.7(B)(2) (Nov. 1994) [hereinafter\\n\\n\\\"Transmittal 64\\\"]. MPDT -- like MDHHS -- appears to be of the\\n\\nview that CMS created this \\\"fair market value\\\" workaround only for\\n\\nso-called Miller trusts, see 42 U.S.C. § 1396p(d)(4)(B), and not\\n\\nfor pooled special needs trusts. I say that because MPDT advances\\n\\nan argument in service of its contention that the transfer rule\\n\\n\\n\\n\\n - 29 -\\n\\ndoes not apply to exempt trusts that necessarily proceeds on that\\n\\nassumption.\\n\\n But, contrary to MPDT's apparent view, the text of\\n\\nTransmittal 64 seems most naturally read to treat the rules\\n\\nconcerning the \\\"fair market value\\\" workaround as applying to all\\n\\nexempt trusts, pooled special needs trusts among them. The\\n\\nsubsection of Transmittal 64 that sets forth the eligibility rules\\n\\nfor pooled special needs trusts states, in no uncertain terms,\\n\\nthat \\\"[r]esources placed in an exempt trust for a disabled\\n\\nindividual are [not] subject to imposition of a [transfer]\\n\\npenalty . . . [if] the resources placed in the trust are used to\\n\\nbenefit the individual, and the trust purchases items and services\\n\\nfor the individual at fair market value.\\\" Transmittal 64\\n\\n§ 3259.7(B)(2) (emphasis added).\\n\\n That subsection does direct us to \\\"[s]ee subsection\\n\\nC\\\" -- which is, in turn, titled \\\"Miller-Type or Qualifying Income\\n\\nTrusts (QIT)\\\" -- \\\"for the rules concerning application of the\\n\\ntransfer of assets provisions to assets placed in an exempt trust.\\\"\\n\\nId. (emphasis added). But, the subsection goes on to state that\\n\\n\\\"[t]hese rules apply to . . . resources placed in the exempt\\n\\ntrusts discussed in this section,\\\" which include pooled special\\n\\nneeds trusts. Id. (emphasis added).\\n\\n Some states -- including Maine -- appear to share MPDT's\\n\\nview that CMS does not treat the deposit of funds into a pooled\\n\\n\\n - 30 -\\n\\nspecial needs trust as a transfer for fair market value, even if\\n\\nthe trust makes purchases on the settlor's behalf. The states\\n\\nappear to base that understanding on a subsequent bulletin that\\n\\nCMS issued in 2008 on the treatment of pooled special needs trusts\\n\\n(the \\\"2008 Bulletin\\\"), which does not mention this \\\"fair market\\n\\nvalue\\\" workaround for that type of trust. See Ctrs. for Medicare\\n\\n& Medicaid Servs., State Agency Reg'l Bull. No. 2008-05, Medicaid\\n\\nEligibility -- Application of Transfer of Assets Penalty for Pooled\\n\\nTrust (May 12, 2008).\\n\\n But, while the 2008 Bulletin does instruct state\\n\\nagencies that, pursuant to 42 U.S.C. § 1396p(c)(2)(B)(iv), \\\"only\\n\\n[pooled] trusts established for a disabled individual age 64 or\\n\\nyounger are exempt from application of the transfer of assets\\n\\npenalty provisions,\\\" 2008 Bulletin at 1 (emphasis added), that\\n\\nstatement is not necessarily at odds with the view that I glean\\n\\nfrom Transmittal 64. Even if the Transfer Provision does apply to\\n\\npooled special needs trusts, a transfer penalty may only be imposed\\n\\nunder that provision where the settlor \\\"disposes of assets for\\n\\nless than fair market value.\\\" 42 U.S.C. § 1396p(c)(1)(A) (emphasis\\n\\nadded).5 Thus, the fact that the 2008 Bulletin states that \\\"funds\\n\\n\\n 5 The 2008 Bulletin does state that \\\"[w]hen a person places\\nfunds in a trust, the person gives up ownership of those funds.\\nSince the individual generally does not receive anything of\\ncomparable value in return, placing funds in a trust is usually a\\ntransfer for less than fair market value.\\\" 2008 Bulletin at 1\\n(emphasis added). But, read in context, that appears to be a\\n\\n\\n - 31 -\\n\\nplaced in a pooled trust established for an individual age 65 or\\n\\nolder may be subject to penalty as a transfer of assets for less\\n\\nthan fair market value\\\" actually suggests -- contrary to the views\\n\\nof some states -- that CMS may still recognize, as it appeared to\\n\\nin Transmittal 64, that such a disposal of assets may escape a\\n\\ntransfer penalty if it is for \\\"fair market value.\\\" 2008 Bulletin\\n\\nat 1 (emphasis added).\\n\\n Notably, the United States's amicus brief on behalf of\\n\\nCMS is silent on this very point. That fact only serves to\\n\\nunderscore for me the possibility that CMS is still of the view\\n\\nthat it seemingly espoused in Transmittal 64: that the settlor of\\n\\na pooled special needs trust can be deemed to receive fair market\\n\\nvalue for settling the trust from the purchases that the trust can\\n\\nmake on her behalf. Consistent with that suspicion, the United\\n\\nStates's amicus brief even emphasizes that \\\"for purposes of this\\n\\nappeal, it is undisputed that [the settlor] did not receive fair\\n\\nmarket value in disposing of [her] assets [to MPDT].\\\"\\n\\n II.\\n\\n Insofar as CMS does hold such a view, there remains the\\n\\nquestion of how the \\\"fair market value\\\" workaround would work.\\n\\nTransmittal 64 provides that \\\"an individual is considered to have\\n\\nreceived fair market value for funds placed in a[n] [exempt] trust\\\"\\n\\n\\ngeneral statement about trusts, and not a statement specific to\\npooled special needs trusts.\\n\\n\\n - 32 -\\n\\nfrom certain payments \\\"out of the trust.\\\" Transmittal 64\\n\\n§ 3259.7(C)(3). The payments include those made \\\"out of the trust\\n\\nfor medical care provided to the individual,\\\" which \\\"purchased\\n\\ncare at fair market value\\\" and \\\"any other payments made from the\\n\\ntrust which are for the benefit of the individual and which reflect\\n\\nfair payments for any items or services which were purchased.\\\"\\n\\nId. The items or services purchased are, in turn, described as\\n\\nincluding trust fees, \\\"food or clothing for the individual, or\\n\\nmortgage payments for the individual's home.\\\" Id.\\n\\n Given that the workaround is based on purchases that the\\n\\ntrust makes after funds have been placed in the trust, it runs\\n\\ninto a potential statutory problem. The transfer rule imposes an\\n\\neligibility penalty only if an applicant \\\"disposes of assets for\\n\\nless than fair market value\\\" within the look-back period. 42\\n\\nU.S.C. § 1396p(c)(1)(A). The statute does not define \\\"dispose[]\\\"\\n\\nor \\\"fair market value.\\\" But, as our opinion explains, and as\\n\\nTransmittal 64 itself reflects, the ordinary meaning of\\n\\n\\\"dispose[]\\\" encompasses a deposit of funds into a trust -- even an\\n\\nexempt trust -- because \\\"[a]n individual placing an asset in a\\n\\ntrust generally gives up ownership of the asset to the trust.\\\"\\n\\nTransmittal 64 § 3259.6(G).\\n\\n Read in light of the entire statutory phrase, then, the\\n\\nrelevant inquiry for determining whether a disposal of assets is\\n\\n\\\"for less than fair market value\\\" would seem to be whether \\\"the\\n\\n\\n - 33 -\\n\\nindividual . . . receive[s] fair compensation in return\\\" for the\\n\\nassets at the time of their disposal. Id. And, consistent with\\n\\nthat understanding, Transmittal 64 itself defines \\\"fair market\\n\\nvalue\\\" as \\\"an estimate of the value of an asset, if sold at the\\n\\nprevailing price at the time it was actually transferred.\\\" Id.\\n\\n§ 3258.1(A)(1) (emphasis added).6 Hence, the potential problem\\n\\nwith the workaround: At the actual time of the transfer into the\\n\\ntrust, the settlor usually receives nothing tangible -- at least,\\n\\nnothing that could be said to constitute \\\"fair market\\n\\nvalue\\\" -- immediately in return, even if the trust is set up in a\\n\\nmanner that obligates the trust to make future purchases of\\n\\nservices or goods (at fair market value) for the settlor's benefit.\\n\\n Transmittal 64 appears to recognize the potential\\n\\nstatutory problem that arises from the mismatch between the timing\\n\\nof the settlor's deposit and the trust's expenditures, and it thus\\n\\nappears to propose a solution to the seeming problem. It provides\\n\\nthat \\\"[a]n individual cannot be considered to have received fair\\n\\nmarket value for funds placed in a trust until payments for some\\n\\nitem or service are actually made.\\\" Transmittal 64 § 3259.7(C)(3)\\n\\n\\n 6 Consistent with Transmittal 64's definition, MDHHS's policy\\nmanual defines \\\"fair market value\\\" as \\\"compensation received for\\nthe asset . . . in a tangible form with intrinsic value that is\\nequivalent to or greater than the value of the transferred asset\\\"\\nand provides that \\\"[f]air market value must be received by the\\nindividual and not delivered at a future date.\\\" Maine Dep't of\\nHealth and Human Services, 10-144 Chapter 332, MaineCare\\nEligibility Manual, § 1.5 (Apr. 17, 2019) (emphasis added).\\n\\n\\n - 34 -\\n\\n(emphasis added). \\\"Thus,\\\" according to Transmittal 64, \\\"funds\\n\\ncannot be allowed to accumulate indefinitely in a[n] [exempt] trust\\n\\nand still avoid transfer of assets penalties.\\\" Id.\\n\\n Transmittal 64 in this way seems to contemplate that a\\n\\nretroactive adjustment of the transfer penalty would need to be\\n\\nmade after \\\"payments [out of the trust] for some item or service\\n\\nare actually made.\\\" Id. Transmittal 64 says little about how\\n\\nsuch a retroactive adjustment could be made. But, Transmittal 64\\n\\ndoes note that the Transfer Provision separately provides that no\\n\\ntransfer penalty should be imposed when \\\"all assets transferred\\n\\nfor less than fair market value have been returned to the\\n\\nindividual.\\\" See 42 U.S.C. § 1396p(c)(2)(C)(iii); Transmittal 64\\n\\n§ 3258.10(C)(3). And, with respect to that separate statutory\\n\\nexception, Transmittal 64 explains that \\\"[w]hen a penalty has been\\n\\nassessed and payment of services denied, a return of assets\\n\\nrequires a retroactive adjustment, including erasure of the\\n\\npenalty, back to the beginning of the penalty period.\\\" Transmittal\\n\\n64 § 3258.10(C)(3). Transmittal 64 further provides, in\\n\\nexplaining how that retroactive adjustment may be made, that\\n\\n\\\"[w]hen only part of an asset or its equivalent value is returned,\\n\\na penalty period can be modified but not eliminated. For example,\\n\\n\\n\\n\\n - 35 -\\n\\nif only half the value of the asset is returned, the penalty period\\n\\ncan be reduced by one-half.\\\" Id.\\n\\n III.\\n\\n There is a case to be made, then, that CMS is of the\\n\\nview that the Medicaid statute permits this retroactive \\\"fair\\n\\nmarket value\\\" workaround for pooled special needs trusts that I\\n\\nhave just described. And thus, a settlor of a pooled special needs\\n\\ntrust, or such a trust itself, may be well positioned to assert in\\n\\na future case both that no transfer penalty may be imposed on\\n\\ndeposits into such a trust even if the transfer rule does -- as we\\n\\nnow hold -- apply and that CMS itself holds that same view.\\n\\n Having CMS as an ally in such a suit obviously could be\\n\\nquite helpful. After all, the statute itself does not define\\n\\n\\\"dispose[]\\\" or \\\"fair market value.\\\" CMS's expertise in\\n\\ninterpreting those key statutory terms in such a highly technical\\n\\nregulatory regime thus would seem to \\\"warrant[] respectful\\n\\nconsideration.\\\" Wis. Dep't of Health & Family Servs. v. Blumer,\\n\\n534 U.S. 473, 497 (2002) (noting CMS's \\\"significant\\n\\nexpertise . . . in the context of a complex and highly technical\\n\\nregulatory program\\\" (internal quotation marks and citations\\n\\nomitted)); see also Mead, 533 U.S. at 235.\\n\\n We are not confronted here, however, with any such\\n\\ncontention by MPDT. It argues that no transfer penalty should\\n\\nhave been imposed on the settlor only because it asserts that the\\n\\n\\n - 36 -\\n\\ntransfer rule itself does not apply. I thus fully agree that the\\n\\ndecision below must be affirmed, as we face only a case in which\\n\\nCMS contends that the transfer rule does apply and in which the\\n\\npooled special needs trust at issue has made no argument that it\\n\\nhas been established in such a way that its settlor should be\\n\\ndeemed to comply with that rule's \\\"fair market value\\\" condition.\\n\\n\\n\\n\\n - 37 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408779/\", \"author_raw\": \"BARRON, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"THOMPSON"},"judge2":{"kind":"string","value":"KAYATTA"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":3,"string":"3"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4631526/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Maine Pooled Disability Trust v. Hamilton\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-20\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1223\n\n MAINE POOLED DISABILITY TRUST;\n\n Plaintiff, Appellant,\n\n YVONNE R. RICHARDSON, by her Conservator Barbara Carlin,\n\n Plaintiff,\n\n v.\n\n RICKER HAMILTON, in his official capacity as Commissioner of\n Maine Department of Health and Human Services,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n\n [Hon. John A. Woodcock, Jr., U.S. District Judge]\n\n\n Before\n\n Thompson, Kayatta, and Barron,\n Circuit Judges.\n\n\n Ron M. Landsman, with whom Landsman Law Group, Rene H.\nReixach, Jr., Woods, Oviatt, Gilman, LLP, Richard L. O'Meara, and\nMurray, Plumb & Murray were on brief, for appellant.\n Thaddeus A. Heuer, with whom Dean Richlin, Jeremy W.\nMeisinger, and Foley Hoag, LLP were on brief, for National Academy\nof Elder Law Attorneys and Guardian Community Trust, amicus curiae.\n David Scott Hamilton and Dennis M. Sandoval, APLC on brief\nfor Special Needs Alliance, amicus curiae.\n Christopher C. Taub, Assistant Attorney General of Maine,\nwith whom Janet T. Mills, Attorney General of Maine, and Susan P.\n\nHerman, Deputy Attorney General of Maine, were on brief, for\nappellee.\n Joseph H. Hunt, Assistant Attorney General, Halsey B. Frank,\nU.S. Attorney, Alisa B. Klein, Attorney, Civil Division, Appellate\nStaff, Casen B. Ross, Attorney, Civil Division, Appellate Staff,\nRobert P. Charrow, General Counsel, U.S. Department of Health and\nHuman Services, Janice L. Hoffman, Associate General Counsel, U.S.\nDepartment of Health and Human Services, Susan Maxson Lyons, Deputy\nAssociate General Counsel for Litigation, U.S. Department of\nHealth and Human Services, David L Hoskins, Attorney, U.S.\nDepartment of Health and Human Services, W. Charles Bailey, Jr.,\nAttorney, U.S. Department of Health and Human Services, on brief\nfor the United States of America, amicus curiae.\n\n\n June 20, 2019\n\n KAYATTA, Circuit Judge. This case concerns transfers of\n\nassets by individuals age sixty-five or older into what are called\n\n\"pooled special needs trusts.\" The issue posed is whether such\n\ntransfers are among those transfers that the Medicaid statute\n\ncounts against eligibility for long-term care benefits. The\n\ndistrict court held that they are. For the following reasons, we\n\nagree.\n\n I.\n\n The pertinent facts are straightforward and materially\n\nundisputed.\n\n Yvonne R. Richardson is an elderly resident of\n\nSt. Joseph's Manor nursing facility in Portland, Maine. At the\n\ntime of the complaint, Richardson was eighty-seven years old and\n\nreceiving Medicaid benefits to help pay for the cost of her long-\n\nterm care. See generally 42 U.S.C. § 1396p(c)(1)(C)(i)(I)\n\n(listing covered long-term care benefits, including nursing\n\nfacility services). In January 2017, Richardson's conservator,\n\nBarbara Carlin, deposited $38,500 of the proceeds from the sale of\n\nRichardson's former home into an account with Maine Pooled\n\nDisability Trust (\"MPDT\"), a pooled special needs trust\n\nestablished pursuant to 42 U.S.C. § 1396p(d)(4)(C).\n\n Pooled special needs trusts allow disabled individuals\n\nwith relatively small amounts of money to pool their resources for\n\ninvestment and management purposes. Lewis v. Alexander, 685 F.3d\n\n\n - 3 -\n\n325, 333 (3d Cir. 2012). They are designed to \"provide for\n\nexpenses that assistance programs such as Medicaid do not cover.\"\n\nId. (quoting Sullivan v. County of Suffolk, 174 F.3d 282, 284 (2d\n\nCir. 1999)). Richardson hoped to use her MPDT funds to pay for\n\n\"modest expenditures\" not covered by Medicaid \"that would greatly\n\nimprove her quality of life,\" such as large-print word-search and\n\ncrossword puzzle books, new clothing, sweets, manicures,\n\nmagazines, and a radio. She also intended to hire a private\n\ncaregiver who could take her on excursions outside the nursing\n\nfacility.\n\n Following Richardson's deposit of funds into her MPDT\n\naccount, the Maine Department of Health and Human Services\n\n(\"MDHHS\") issued a notice threatening to suspend Medicaid coverage\n\nfor her care at St. Joseph's Manor for \"3.53 months\" because\n\n\"[a]ssets were transferred\" and she \"did not get something of equal\n\nvalue\" in exchange. See 42 U.S.C. § 1396p(c)(1)(A) (penalizing an\n\ninstitutionalized individual's \"dispos[al] of assets for less than\n\nfair market value\"). In response, Richardson requested an\n\nadministrative hearing. She and MPDT also filed this lawsuit in\n\nfederal court challenging MDHHS's decision to suspend her Medicaid\n\ncoverage. The hearing officer subsequently stayed state\n\nadministrative proceedings pending resolution of the lawsuit.\n\nRichardson will continue to receive Medicaid benefits until the\n\nadministrative review of MDHHS's decision is complete.\n\n\n - 4 -\n\n Richardson and MPDT's complaint included two counts, but\n\nonly the second is at issue here.1 That count asserts a claim\n\nunder 42 U.S.C. § 1983, seeking a declaration and injunction\n\npredicated on the assertion that Richardson's transfer of assets\n\ninto a pooled special needs trust is not a transfer that affects\n\nMedicaid eligibility. The district court dismissed the complaint\n\nunder Federal Rule of Civil Procedure 12(b)(6). Richardson, 2018\n\nWL 1077275, at *18.\n\n In so doing, the district court ruled that Richardson\n\nhad standing to challenge the decision to suspend her Medicaid\n\ncoverage, but her claim was not yet ripe because \"[a]ny penalty\n\n(and related adverse impact on [Richardson's] benefits) ha[d] been\n\nstayed pending her administrative appeal,\" such that her claims\n\n\"lack[ed] sufficient finality and definiteness\" for judicial\n\nreview. Id. at *4–5. The district court determined that MPDT had\n\nassociational standing and that MPDT's contention that MDHHS's\n\nruling was currently causing MPDT to lose both enrollees and funds\n\nrendered its claim ripe for adjudication. Finally, the district\n\n\n\n 1 The district court dismissed Count I, which alleged that\nRichardson and \"others similarly situated\" in fact \"receive fair\nmarket value from the expenditures the [MPDT] can make on their\nbehalf\" and therefore should incur no transfer penalty, because it\nwas premised on two provisions of the Medicaid statute that the\ncourt found to be unenforceable under 42 U.S.C. § 1983. Richardson\nex rel. Carlin v. Hamilton, No. 2:17-CV-00134-JAW, 2018 WL 1077275,\nat *1, 13 (D. Me. Feb. 27, 2018). On appeal, MPDT does not contest\nthat ruling.\n\n\n - 5 -\n\ncourt ruled that MDHHS correctly applied the governing statute in\n\nconsidering transfers to pooled special needs trusts in\n\ndetermining eligibility.\n\n MPDT alone filed a timely notice of appeal. No party\n\ndisputes that MPDT has standing or that its claim is ripe. Nor do\n\nwe see any reason to question either standing or ripeness sua\n\nsponte. As the district court observed, because \"(1) one of MPDT's\n\nmembers, [Richardson], has standing to [sue]; (2) the interests at\n\nstake . . . are germane to MPDT's purpose; and (3) the relief\n\nrequested does not require the participation of other MPDT\n\nbeneficiaries in this litigation,\" id. at *9, MPDT has standing to\n\nbring its claims on behalf of its beneficiaries. See Council of\n\nIns. Agents & Brokers v. Juarbe-Jiménez, 443 F.3d 103, 108 (1st\n\nCir. 2006). And as to ripeness, no one cites any reason to doubt\n\nthat, as the district court found, MDHHS's ruling currently harms\n\nMPDT. We therefore proceed to the merits of the order granting\n\nMDHHS's motion to dismiss Count II, which we review \"de novo,\n\napplying the same criteria as the district court.\" Germanowski v.\n\nHarris, 854 F.3d 68, 71 (1st Cir. 2017) (quoting Carrero-Ojeda v.\n\nAutoridad de Energía Eléctrica, 755 F.3d 711, 717 (1st Cir. 2014)).\n\n II.\n\n Medicaid is a \"health insurance program for low-income\n\nindividuals . . . funded by both the federal government and state\n\ngovernments.\" Massachusetts v. Sebelius, 638 F.3d 24, 26 (1st\n\n\n - 6 -\n\nCir. 2011) (citing 42 U.S.C. § 1396 et seq.). Medicaid is supposed\n\nto be a \"payer of last resort,\" id. (quoting Ark. Dep't of Health\n\n& Human Servs. v. Ahlborn, 547 U.S. 268, 291 (2006)), and Medicaid\n\neligibility criteria generally take an applicant's income and\n\nwealth into account, see Lewis, 685 F.3d at 332.\n\n Under Medicaid's prior asset-counting rules, inventive\n\n\"lawyers and financial planners . . . devised various ways to\n\n'shield' wealthier [applicants'] assets,\" including by placing\n\nassets in trusts. Johnson v. Guhl, 357 F.3d 403, 405 (3d Cir.\n\n2004). So, Congress amended the Medicaid scheme, aiming, as a\n\ngeneral matter, to treat trusts as assets available to\n\nbeneficiaries, thus counting against Medicaid eligibility. Lewis,\n\n685 F.3d at 333; see also Omnibus Budget Reconciliation Act of\n\n1993, Pub. L. No. 103–66, 107 Stat. 312 (1993) (\"OBRA\").\n\n Although state participation in Medicaid is voluntary,\n\nparticipating states must adopt plans that meet certain\n\nrequirements that federal statutes and regulations impose. See\n\nArmstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1382\n\n(2015). Failure to comply may jeopardize federal funds. See 42\n\nU.S.C. § 1396a(a). Among these requirements, states must \"comply\n\nwith the provisions of section 1396p . . . with respect\n\nto . . . transfers of assets . . . and [the] treatment of certain\n\ntrusts.\" 42 U.S.C. § 1396a(a)(18). This case turns on the\n\n\n\n\n - 7 -\n\nrelationship between two particular provisions of section 1396p:\n\nThe Trust Provision and the Transfer Provision.\n\n A.\n\n The Trust Provision, section 1396p(d), sets forth\n\nseveral general rules addressing the treatment of assets held in\n\ntrust (the trust corpus) and the treatment of payments out of\n\ntrusts. Assets in revocable trusts are considered resources\n\navailable to the applicant for purposes of determining his or her\n\nentitlement to benefits. Id. § 1396p(d)(1), (3)(A)(i). Payments\n\nfrom such trusts are considered either income of the applicant or\n\nassets disposed of by the applicant under the Transfer Provision.\n\nId. § 1396p(d)(3)(A)(ii), (iii). Assets in irrevocable trusts are\n\nalso considered available resources to the extent that payments\n\ncould be made from such trusts for the applicant's benefit. Id.\n\n§ 1396p(d)(3)(B)(i). And payments from these trusts are likewise\n\nconsidered either income or transferred assets. Id.\n\n§ 1396p(d)(3)(B)(i)(I), (II). Further, portions of irrevocable\n\ntrusts from which no payment could be made to the applicant are\n\nconsidered transferred assets, and the value of the trust for\n\npurposes of the Transfer Provision is determined by including the\n\namount of any payments made from such portion of the trust. Id.\n\n§ 1396p(d)(3)(B)(ii).\n\n These rules governing the treatment of trust corpuses\n\nand payments out of trusts do not apply universally. The 1993 OBRA\n\n\n - 8 -\n\namendments exempted three types of trusts for disabled individuals\n\n-- special needs trusts, Medicaid income trusts, and pooled special\n\nneeds trusts -- from the eligibility rules set out in the Trust\n\nProvision. See id. § 1396p(d)(4)(A), (B), (C). This case\n\nconcerns pooled special needs trusts.\n\n A pooled special needs trust \"contain[s] the assets of\n\nan individual who is disabled (as defined in [42 U.S.C.\n\n§ 1382c(a)(3)]).\" Id. § 1396p(d)(4)(C). To qualify, such trusts\n\nmust meet the following conditions:\n\n (i) The trust is established and managed by a\n nonprofit association.\n\n (ii) A separate account is maintained for each\n beneficiary of the trust, but, for purposes of\n investment and management of funds, the trust\n pools these accounts.\n\n (iii) Accounts in the trust are established\n solely for the benefit of individuals who are\n disabled . . . by the parent, grandparent, or\n legal guardian of such individuals, by such\n individuals, or by a court.\n\n (iv) To the extent that amounts remaining in\n the beneficiary's account upon the death of\n the beneficiary are not retained by the trust,\n the trust pays to the State from such\n remaining amounts in the account an amount\n equal to the total amount of medical\n assistance paid on behalf of the beneficiary\n under the State plan under this subchapter.\n\nId. No one disputes on this appeal that MPDT satisfies these\n\nconditions.\n\n\n\n\n - 9 -\n\n B.\n\n The Transfer Provision, section 1396p(c), also sets\n\nforth a broad general rule: If an applicant or that person's\n\nspouse \"disposes of assets for less than fair market value on or\n\nafter the look-back date,\" the applicant is ineligible for\n\nservices, including long-term nursing care, for a period of time\n\nbased on the value of the assets disposed. Id. § 1396p(c)(1)(A).\n\nFor an institutionalized individual, the look-back date is a date\n\nup to sixty months before the first date as of which the individual\n\nis both institutionalized and has applied for benefits. Id.\n\n§ 1396p(c)(1)(B)(i)–(ii). Essentially, this means that if a\n\nperson disposes of assets for less than fair market value while\n\nreceiving benefits or shortly before applying for benefits, the\n\ndisposition will postpone eligibility. In short, you can't make\n\nyourself eligible for Medicaid faster by disposing of your assets\n\nunless you act before the look-back date. Here, there is no\n\ndispute that Richardson's transfer of assets occurred after the\n\nlook-back date.\n\n The Transfer Provision also contains a list of\n\nexceptions to its general rule governing the disposition of assets.\n\nEspecially relevant here are the two exceptions provided by\n\nsubsections 1396p(c)(2)(B)(iii) and (iv). First, subsection (iii)\n\napplies to assets transferred to trusts, including pooled special\n\nneeds trusts, established for an applicant's disabled child.\n\n\n - 10 -\n\nSecond, subsection (iv) applies to assets \"transferred to a trust\n\n(including a trust described in subsection (d)(4) of this section)\n\nestablished solely for the benefit of an individual under 65 years\n\nof age who is disabled.\" Id. § 1396p(c)(2)(B)(iv) (emphasis\n\nadded). While we assume that MPDT is a trust \"described in\n\nsubsection (d)(4),\" and that Richardson's MPDT account was\n\nestablished for her own benefit, she was not younger than sixty-\n\nfive when her conservator deposited the funds in the trust.\n\n III.\n\n We consider first the breadth of the general rule set\n\nforth by the Transfer Provision: That general rule applies, as\n\nrelevant here, when a putative beneficiary \"disposes of assets for\n\nless than fair market value.\" Id. § 1396p(c)(1)(A). The statute\n\ndoes not define \"dispose,\" so we assume the word carries its\n\nordinary meaning. Merriam Webster defines \"dispose,\" in relevant\n\npart, as \"to transfer to the control of another.\" Merriam\n\nWebster's Collegiate Dictionary (10th ed. 1993). The Sixth Edition\n\nof Black's Law Dictionary defines \"dispose of\" as \"to alienate or\n\ndirect the ownership of property . . . to pass into the control of\n\nsomeone else; to alienate, relinquish, or get rid of.\" Dispose\n\nof, Black's Law Dictionary (6th ed. 1990). The statute's text\n\nequates \"dispose\" with \"transfer.\" Likewise, the Ninth Edition of\n\nBlack's defines \"transfer\" as \"[a]ny mode of disposing of or\n\nparting with an asset or interest in an asset.\" Transfer, Black's\n\n\n - 11 -\n\nLaw Dictionary (9th ed. 2009). Trust law, in turn, regards a\n\ntransfer or conveyance of property as necessary to create a valid\n\ntrust. 76 Am. Jur. 2d Trusts § 47 (2018).\n\n In short, all principal resources strongly indicate that\n\nwhen a person places her property into a trust (and most certainly\n\nan irrevocable trust), thereby surrendering control of the\n\nproperty to the trustee, she has disposed of the property. In the\n\nabsence of some reasonably specific instruction to the contrary,\n\nit follows that the Transfer Provision's general rule covers the\n\nconveyance of property to a trust, including a pooled special needs\n\ntrust like MPDT. That the Transfer Provision includes exceptions\n\nfor transfers to pooled special needs trusts in two circumstances\n\nreinforces this conclusion. See 42 U.S.C. § 1396p(c)(2)(B)(iii)–\n\n(iv). The presence of specifically enumerated exceptions also\n\nindicates that Congress likely intended to make no other exceptions\n\napart from those specified. See Sony BMG Music Entertainment v.\n\nTenenbuam, 660 F.3d 487, 499 (1st Cir. 2011) (citing Tenn. Valley\n\nAuth. v. Hill, 437 U.S 152, 188 (1978)).\n\n MPDT characterizes the foregoing textual analysis as\n\nunduly myopic. MPDT correctly observes that we must rest our\n\nanalysis on the statute as a whole, giving due weight to the\n\ncontext in which the text at issue appears. When we do this, MPDT\n\ncontends, we should conclude that the Transfer and Trust Provisions\n\nare \"cognate subsections\" with their \"own area[s] of operation\"\n\n\n - 12 -\n\nthat do not overlap except as \"explicitly specified.\" Under this\n\nview, the Trust Provision \"broadly and comprehensively regulates\n\nthe impact on Medicaid eligibility of trusts created or funded by\n\nthe individuals seeking Medicaid benefits.\" And since nothing in\n\nthe Trust Provision states that a transfer of assets into a pooled\n\nspecial needs trust will affect eligibility, MPDT reasons, that is\n\nthe end of the matter.\n\n To underpin this view of how the two provisions interact,\n\nMPDT and its supporting amici point to the treatment of irrevocable\n\ntrusts in subsection 1396p(d)(3)(B). Subsection 1396p(d)(3)(B)(i)\n\nspecifies that the portion of the trust corpus from which payments\n\ncould be made to the individual will be deemed available to the\n\nindividual, and payments from an irrevocable trust for any purpose\n\nother than to or for the benefit of the individual \"shall be\n\nconsidered a transfer of assets by the individual subject to [the\n\nTransfer Provision].\" Subsection 1396p(d)(3)(B)(ii) further\n\nprovides that any portion of an irrevocable trust from which no\n\npayment could be made to the individual \"shall be considered, as\n\nof the date of establishment of the trust . . . to be assets\n\ndisposed of by the individual for purposes of [the Transfer\n\nProvision].\" MPDT and amici argue that these commands to treat\n\ncertain parts of the corpus of or payments from an irrevocable\n\ntrust as subject to the transfer penalty give rise to a negative\n\n\n\n\n - 13 -\n\ninference that establishing an irrevocable trust not penalized\n\nunder these subsections incurs no transfer penalty.\n\n It appears that the Centers for Medicare and Medicaid\n\nServices (\"CMS\"), the arm of the Department of Health and Human\n\nServices (\"HHS\") that interprets the Medicaid statute, might have\n\nshared the view that the specific commands of the Trust Provision\n\ncan take priority over the more general commands of the Transfer\n\nProvision. We say \"might\" because CMS seemed to invoke this view\n\nonly when necessary to avoid a potential double penalty (e.g.,\n\npenalizing the same transfer of assets twice). State Medicaid\n\nManual, Health Care Financing Administration Pub. 45–3,\n\nTransmittal 64, § 3259.6(G) (Nov. 1994) (\"To avoid such a double\n\npenalty, application of one provision must take precedence over\n\napplication of the other provision.\" (emphasis added))\n\n[hereinafter \"Transmittal 64\"]. In any event, even assuming this\n\nview to be correct, MPDT and amici run into trouble in the very\n\nnext subsection. Subsection 1396p(d)(4) states that the entire\n\nTrust Provision (including those portions of\n\nsubsection 1396p(d)(3) upon which MPDT relies to draw a negative\n\ninference precluding application of the Transfer Provision in some\n\ninstances) does not apply to pooled special needs trusts. As the\n\nSecond Circuit has observed, \"[S]ubparagraph (d)(4) exempts\n\nqualifying trusts from the rules in (d)(3) but is silent about the\n\n\n\n\n - 14 -\n\nnature or scope of the rules the agency should apply in their\n\nstead.\" Sai Kwan Wong v. Doar, 571 F.3d 247, 260 (2d Cir. 2009).\n\n MPDT would nevertheless have us conclude that the\n\nexemption of pooled special needs trusts from the commands of the\n\nTrust Provision leaves such trusts, for present purposes, exempt\n\nas well from the Transfer Provision's general rule. But, like the\n\nSecond Circuit, we are \"not inclined to infer from statutory\n\nsilence a congressional intent to have no rules whatsoever apply\n\nto income placed in qualifying (d)(4) trusts.\" Id. Furthermore,\n\nas we have already explained, the Transfer Provision broadly\n\napplies to any disposition of assets to a trust (at least when not\n\noverridden by the specific treatment of the Trust Provision).\n\nMoreover, were MPDT correct that a transfer of assets to a pooled\n\nspecial needs trust is not a disposition subject to the Transfer\n\nProvision, that Provision's express exceptions for certain such\n\ntrusts in subsections 1396p(c)(2)(B)(iii) and (iv) would be\n\nentirely irrelevant. Lawless v. Steward Health Care Sys., LLC,\n\n894 F.3d 9, 23 (1st Cir. 2018) (\"[C]ourts should try to avoid\n\ninterpretations that render statutory language mere surplusage.\").\n\n In an effort to parry the notion that its reading renders\n\nsubsections 1396p(c)(2)(B)(iii) and (iv) superfluous, MPDT argues\n\nthat the Transfer Provision only applies to transfers of assets to\n\nthird-party trusts -- not to so-called \"self-settled\" trusts\n\ncreated for the benefit of the individual who created them. MPDT\n\n\n - 15 -\n\ncontends that the four exceptions to the general transfer rule\n\nlaid out in subsections 1396p(c)(2)(B)(i) through (iv) all involve\n\ntrust transactions for the benefit of someone other than the\n\napplicant. Those subsections exempt assets transferred: (i) to\n\nthe individual's spouse or to another for the benefit of the\n\nspouse, (ii) from the individual's spouse to another for the\n\nbenefit of the spouse, (iii) to the individual's child or to a\n\ntrust for the individual's child, and (iv) to a trust, including\n\na trust of the kind described in 42 U.S.C. § 1396p(d)(4),\n\nestablished for the benefit of a disabled individual under age\n\nsixty-five. If the exemptions only deal with transfers to or for\n\nthe benefit of third parties, the argument goes, the relative\n\ncomprehensiveness of the Trust Provision becomes more apparent --\n\nand we may overlook the Transfer Provision's apparently clear\n\napplication to the transfer at issue here.\n\n This argument requires a more creative reading of the\n\ntext of subsection 1396p(c)(2)(B)(iv) than we are willing to\n\nundertake. MPDT would have us hold that \"for the benefit of an\n\nindividual under 65 years of age who is disabled\" means for the\n\nbenefit of such an individual other than the applicant. But, as\n\nthe Eighth Circuit explained in rejecting this same contention,\n\n\"the plain language of this paragraph does not address, let alone\n\nrestrict, the creator of the trust.\" Ctr. for Special Needs Tr.\n\nAdmin. v. Olson, 676 F.3d 688, 702 (8th Cir. 2012). If Congress\n\n\n - 16 -\n\nintended subsection 1396p(c)(2)(B)(iv) to apply only to trusts\n\nbenefiting disabled individuals other than the applicant, we would\n\nexpect a clearer indication of that intent than the use of the\n\narticle \"an\" rather than \"the\" before the word \"individual.\" As\n\nthe subsection stands, the phrase \"an individual\" includes the\n\napplicant herself. Moreover, \"[b]y referencing\n\n'subsection (d)(4),' paragraph 1396p(c)(2)(b)(iv) necessarily\n\nincludes trusts created by the beneficiary, because\n\nsubsection (d)(4)(C) includes trusts created by the beneficiary.\"\n\nId. Finally, even if we were to read the Transfer Provision's\n\nexceptions as limited to trusts established for other persons, we\n\nwould have simply limited the scope of the exceptions without\n\nlimiting the scope of that Provision's general rule.\n\n MPDT also puts forward a redundancy argument. To advance\n\nthis claim, MPDT points again to subsection 1396p(d)(3)(B)(ii) of\n\nthe Trust Provision. MPDT reasons that this subsection would be\n\nunnecessary if the Transfer Provision already, by its own force,\n\nclassified the transfer of assets to a trust, unless excepted, as\n\ngrounds for an eligibility penalty. But this claimed redundancy\n\nsays nothing about the impact of the Transfer Provision on exempt\n\ntrusts, like MPDT, as subsection 1396p(d)(3)(B)(ii) does not apply\n\nto funds placed in these trusts. See 42 U.S.C. § 1396p(d)(4).\n\nMoreover, as we have already explained, MPDT's alternative reading\n\nwould itself treat as surplusage subsections 1396p(c)(2)(B)(iii)\n\n\n - 17 -\n\nand (iv), which expressly exempt from the Transfer Provision\n\ncertain transfers into pooled special needs trusts, but not others.\n\nGiven a choice between two potential redundancies, we are inclined\n\nto opt for the one that does not require us to ignore the most\n\nnatural reading of the text of the Transfer Provision's general\n\nrule.\n\n Properly returning its focus to that general rule, MPDT\n\nand amici also claim that no transfer or disposal of assets\n\noccurred at all in this case because the funds were \"given to the\n\ntrustee of a self-settled trust.\" Citing\n\nsubsection 1396p(d)(3)(B)(i), MPDT maintains that such assets\n\nremain \"available\" to beneficiaries, albeit not in the case of\n\npooled special needs trusts. MPDT cites no authority for its\n\nassertion that assets transferred to self-settled pooled special\n\nneeds trusts \"still belong to the applicant,\" such that \"they have\n\nnot been transferred.\" Rather, as MDHHS avers, the conveyance at\n\nissue here constituted an \"irrevocable transfer\" of legal title to\n\na trustee with \"sole and uncontrolled discretion\" to make\n\ndistributions for the benefit of the beneficiary. As we have\n\nalready explained, the customary meaning of the statutory word\n\n\"disposes\" in the general transfer rule fairly encompasses such a\n\nconveyance. Indeed, MPDT points to no definition of the term that\n\nwould not encompass such a conveyance. We therefore cannot agree\n\nwith MPDT that the entire Transfer Provision is inapplicable when\n\n\n - 18 -\n\na putative beneficiary transfers her assets to a self-settled\n\npooled special needs trust.\n\n Taking an alternative track, MPDT seems to suggest that\n\nour reading of the statute actually leaves CMS no room to allow\n\nthe Trust Provision's specific mandates to, in some situations,\n\noverride the Transfer Provision's general rule. And because,\n\nwithout this latitude, reasons MPDT, double penalties (for\n\nineligibility and availability or for two transfers) would\n\nnecessarily occur, our reading must be incorrect. But, as we noted\n\nearlier, Transmittal 64 seems to state that the Trust Provision\n\nshould be \"given precedence\" when a transfer of assets into a\n\nnonexempt trust would be otherwise penalized twice.\n\nTransmittal 64, § 3259.6(G). MPDT never explains why CMS would\n\nnot still have this leeway under our reading or even how frequently\n\n(and unavoidably) such double penalties might occur. Furthermore,\n\nas we have already observed, the entirety of the Trust Provision\n\ndoes not apply to pooled special needs trusts. So, any carve-out\n\nfrom the transfer rules that the Trust Provision might create would\n\nhave no application to the trust at issue in this case.\n\n In light of the complexity of the foregoing discussion,\n\nwe summarize our reading of the statute: Subsection 1396p(c)(1)(A)\n\nof the Transfer Provision plainly and broadly treats as an\n\neligibility-delaying transfer any disposition of beneficiary\n\nassets to a trust for less than fair market value;\n\n\n - 19 -\n\nsubsection 1396p(c)(2)(B)(iv) of the Transfer Provision creates an\n\nexception from that general rule for certain transfers to pooled\n\nspecial needs trusts established for the benefit of the\n\nbeneficiary, but only when the beneficiary is under sixty-five\n\nyears of age; and subsection 1396p(d)(3)(B) of the Trust Provision\n\nmay also implicitly except from that general rule certain transfers\n\nto irrevocable trusts, but that subsection does not apply to pooled\n\nspecial needs trusts, which are exempted from the whole of the\n\nTrust Provision under subsection 1396p(d)(4)(C). So, when a\n\nbeneficiary who is age sixty-five or older gives up her assets for\n\nless than fair market value to a pooled special needs trust, there\n\nhas been a transfer that triggers a temporary period of\n\nineligibility.\n\n Our reading is consistent with the holdings and dicta of\n\nother courts that have considered the issue. See Olson, 676 F.3d\n\nat 702 (\"By the omission of an age limit in the 'C' paragraph of\n\nsubsection (d), Congress's intent was to permit disabled persons\n\nover age 65 to participate in 'C' pooled trusts.\"); Cox v. Iowa\n\nDep't of Human Servs., 920 N.W.2d 545, 553 (Iowa 2018)\n\n(distinguishing \"between an individual's participation in a pooled\n\nspecial needs trust and the individual's temporary\n\ndisqualification from Medicaid long-term care benefits based on\n\nthat participation\"); In re Pooled Advocate Trust, 813 N.W.2d 130,\n\n142 (S.D. 2012) (noting that the Medicaid statute\n\n\n - 20 -\n\n\"differentiate[s] between participation in a pooled trust and\n\nsubsequent penalty periods and delays in eligibility for transfers\n\nto the trust\" (citing Olson, 676 F.3d at 702)).\n\n So too, agency interpretations of the Trust and Transfer\n\nProvisions bolster our understanding of the statutory language.\n\nThe U.S. Supreme Court has recognized that \"even relatively\n\ninformal\" CMS guidance \"'warrant[s] respectful consideration' due\n\nto the complexity of the [Medicaid] statute and the considerable\n\nexpertise of the administering agency.\" Cmty. Health Ctr. v.\n\nWilson-Coker, 311 F.3d 132, 138 (2d Cir. 2002) (quoting Wis. Dep't\n\nof Health & Family Servs. v. Blumer, 534 U.S. 473, 497 (2002)).\n\nHere, the district court, the parties, and amici focus on three\n\nseparate agency interpretations of the relevant provisions: State\n\nAgency Regional Bulletin No. 2008-05 (the \"Bulletin\"),\n\nsections 3257 through 3259 of the State Medicaid Manual\n\n(\"Transmittal 64\"),2 and the Social Security Administration's\n\nProgram Operations Manual (\"SSA Manual\").\n\n As we have already explained, Transmittal 64 can indeed\n\nbe read as stating that the specific commands of the Trust\n\nProvision take precedence over the Transfer Provision's general\n\nrule, at least when necessary to avoid a potential double penalty.\n\n\n\n 2Updates to the State Medicaid Manual are known as\n\"transmittals.\" CMS issued Transmittal 64 shortly after OBRA was\npassed in 1993.\n\n\n - 21 -\n\nBut Transmittal 64 also makes clear that, while certain trusts are\n\nexempt from both the Trust and Transfer Provisions, \"a special\n\nneeds trust established for a disabled individual who is age 66\n\ncould be subject to a transfer penalty.\" Transmittal 64\n\n§ 3259.7(B). MDHHS also correctly notes that there is no prospect\n\nof a double penalty in this case. That is, while a transfer of\n\nassets to a pooled special needs trust may be subject to a penalty\n\nperiod under the transfer rule, funds in pooled special needs\n\ntrusts are not considered available -- and therefore are not\n\n\"penalized\" for eligibility purposes -- under the Trust Provision.\n\nSo, although Transmittal 64 states that \"the trust provisions are\n\ngiven precedence in dealing with assets placed in trusts\" to avoid\n\nsuch a double penalty, this guidance is irrelevant here because\n\nassets placed in pooled special needs trusts are never subject to\n\na double penalty. Id. § 3259.6(G).\n\n The CMS Boston Regional Office's 2008 Bulletin\n\nexplicitly supports our reading of the Medicaid statute, stating,\n\nin no uncertain terms: \"A pooled trust established by an\n\nindividual age 65 or older is not exempt from the transfer of\n\nassets provisions.\" Ctrs. for Medicare & Medicaid Servs., State\n\nAgency Reg'l Bull. No. 2008-05, Medicaid Eligibility --\n\nApplication of Transfer of Assets Penalty for Pooled Trust (2008).\n\nIt further provides:\n\n\n\n\n - 22 -\n\n Although a pooled trust may be established for\n beneficiaries of any age, funds placed in a\n pooled trust established for an individual age\n 65 or older may be subject to penalty as a\n transfer of assets for less than fair market\n value. When a person places funds in a trust,\n the person gives up ownership of those funds.\n Since the individual generally does not\n receive anything of comparable value in\n return, placing funds in a trust is usually a\n transfer for less than fair market value. The\n statute does provide an exception to imposing\n a transfer penalty for funds that are placed\n in a trust established for a disabled\n individual. However, only trusts established\n for a disabled individual age 64 or younger\n are exempt from application of the transfer of\n assets penalty provisions . . . .\n\nId.\n\n The Social Security Administration reaches the same\n\nconclusion in its Program Operations Manual, \"the publicly\n\navailable operating instructions for processing Social Security\n\nClaims.\" In re Pooled Advocate Trust, 813 N.W.2d at 145 (quoting\n\nWash. State Dep't of Soc. & Health Servs. v. Guardianship Estate\n\nof Keffeler, 537 U.S. 371, 385 (2003)). The SSA Manual\n\nacknowledges that, while \"[t]here is no age restriction under [the\n\nTrust Provision's] exception,\" it also states that \"a transfer of\n\nresources to a trust for an individual age 65 or over may result\n\nin a transfer penalty.\" Soc. Sec. Admin., Program Operations\n\nManual System, Exceptions to Counting Trusts Established on or\n\nafter 1/1/00, SI 01120.203(B)(2)(a); see also Social Sec. Admin,\n\nProgram Operations Manual System, Exceptions - Transfers to a\n\n\n\n - 23 -\n\nTrust, SI 01150.121(A)(3) (\"The period of ineligibility does not\n\napply to an individual who transfers a resource to a trust\n\nestablished for the sole benefit of an individual including himself\n\nor herself who is under age 65 and is blind or disabled.\").\n\n Amici argue that the Bulletin's interpretation must be\n\nlegally incorrect because it would \"nullif[y]\" the exemption of\n\npooled special needs trusts from section 1396p(d). But, as MDHHS\n\ncounters, \"application of the Transfer Provision to the funding of\n\npooled special needs trusts does not prevent the Trust Provision\n\nfrom conferring real and tangible benefits.\" Rather, assets in\n\npooled special needs trusts are never counted as available\n\nresources or income under the Trust Provision, and transfers into\n\nsuch trusts by applicants before they reach the age of sixty-five\n\nare not subject to a penalty period at all. See In re Pooled\n\nAdvocate Trust, 813 N.W.2d at 143 (noting the need to\n\n\"differentiate between being denied Medicaid long-term care\n\nassistance and being subject to a delay in eligibility for Medicaid\n\nlong-term care assistance via a penalty period\" and explaining\n\nthat \"[t]he applicant may . . . qualify for medical-only coverage\n\nduring the penalty period[,] . . . and after the penalty period\n\nexpires, the applicant may thereafter be eligible for long-term\n\ncare assistance.\"). Although the impact of a penalty period on\n\neligibility for long-term care benefits is certainly not\n\n\n\n\n - 24 -\n\nnegligible, neither are the potential benefits that remain from\n\nparticipation in timely-created pooled special needs trusts.\n\n It is true that CMS recognized in Transmittal 64 that\n\napplying the Transfer Provision to so-called Miller trusts would\n\nrender them ineffective, so CMS allows certain Miller trusts to\n\navoid a transfer penalty. See Transmittal 64 § 3259.7(B)(2). MPDT\n\ncontends that such an allowance conflicts with CMS's view that the\n\nTransfer Provision applies to some exempt (d)(4) trusts, like MPDT,\n\nsignaling that this interpretation must be incorrect. But\n\nTransmittal 64 provides only that a transfer penalty is not\n\ntriggered when \"resources placed in [a] trust are used to benefit\n\nthe individual, and the trust purchases items or services for the\n\nindividual at a fair market value.\" Id. Of course, if the\n\ndisposition of assets is indeed for fair market value, the Transfer\n\nProvision -- by its plain terms -- does not apply.3\n\n To the extent that MPDT further asserts that the plain-\n\ntext interpretation of the Trust and Transfer Provisions runs\n\nagainst the congressional purpose motivating their enactment, it\n\ndiscounts Congress's clear intent to ensure that individuals\n\n\"exhaust their own resources before turning to the public for\n\nassistance.\" Lewis, 685 F.3d at 332–33; see also Sai Kwan Wong,\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Maine Pooled Disability Trust v. Hamilton\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-20\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1223\\n\\n MAINE POOLED DISABILITY TRUST;\\n\\n Plaintiff, Appellant,\\n\\n YVONNE R. RICHARDSON, by her Conservator Barbara Carlin,\\n\\n Plaintiff,\\n\\n v.\\n\\n RICKER HAMILTON, in his official capacity as Commissioner of\\n Maine Department of Health and Human Services,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. John A. Woodcock, Jr., U.S. District Judge]\\n\\n\\n Before\\n\\n Thompson, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Ron M. Landsman, with whom Landsman Law Group, Rene H.\\nReixach, Jr., Woods, Oviatt, Gilman, LLP, Richard L. O'Meara, and\\nMurray, Plumb & Murray were on brief, for appellant.\\n Thaddeus A. Heuer, with whom Dean Richlin, Jeremy W.\\nMeisinger, and Foley Hoag, LLP were on brief, for National Academy\\nof Elder Law Attorneys and Guardian Community Trust, amicus curiae.\\n David Scott Hamilton and Dennis M. Sandoval, APLC on brief\\nfor Special Needs Alliance, amicus curiae.\\n Christopher C. Taub, Assistant Attorney General of Maine,\\nwith whom Janet T. Mills, Attorney General of Maine, and Susan P.\\n\\nHerman, Deputy Attorney General of Maine, were on brief, for\\nappellee.\\n Joseph H. Hunt, Assistant Attorney General, Halsey B. Frank,\\nU.S. Attorney, Alisa B. Klein, Attorney, Civil Division, Appellate\\nStaff, Casen B. Ross, Attorney, Civil Division, Appellate Staff,\\nRobert P. Charrow, General Counsel, U.S. Department of Health and\\nHuman Services, Janice L. Hoffman, Associate General Counsel, U.S.\\nDepartment of Health and Human Services, Susan Maxson Lyons, Deputy\\nAssociate General Counsel for Litigation, U.S. Department of\\nHealth and Human Services, David L Hoskins, Attorney, U.S.\\nDepartment of Health and Human Services, W. Charles Bailey, Jr.,\\nAttorney, U.S. Department of Health and Human Services, on brief\\nfor the United States of America, amicus curiae.\\n\\n\\n June 20, 2019\\n\\n KAYATTA, Circuit Judge. This case concerns transfers of\\n\\nassets by individuals age sixty-five or older into what are called\\n\\n\\\"pooled special needs trusts.\\\" The issue posed is whether such\\n\\ntransfers are among those transfers that the Medicaid statute\\n\\ncounts against eligibility for long-term care benefits. The\\n\\ndistrict court held that they are. For the following reasons, we\\n\\nagree.\\n\\n I.\\n\\n The pertinent facts are straightforward and materially\\n\\nundisputed.\\n\\n Yvonne R. Richardson is an elderly resident of\\n\\nSt. Joseph's Manor nursing facility in Portland, Maine. At the\\n\\ntime of the complaint, Richardson was eighty-seven years old and\\n\\nreceiving Medicaid benefits to help pay for the cost of her long-\\n\\nterm care. See generally 42 U.S.C. § 1396p(c)(1)(C)(i)(I)\\n\\n(listing covered long-term care benefits, including nursing\\n\\nfacility services). In January 2017, Richardson's conservator,\\n\\nBarbara Carlin, deposited $38,500 of the proceeds from the sale of\\n\\nRichardson's former home into an account with Maine Pooled\\n\\nDisability Trust (\\\"MPDT\\\"), a pooled special needs trust\\n\\nestablished pursuant to 42 U.S.C. § 1396p(d)(4)(C).\\n\\n Pooled special needs trusts allow disabled individuals\\n\\nwith relatively small amounts of money to pool their resources for\\n\\ninvestment and management purposes. Lewis v. Alexander, 685 F.3d\\n\\n\\n - 3 -\\n\\n325, 333 (3d Cir. 2012). They are designed to \\\"provide for\\n\\nexpenses that assistance programs such as Medicaid do not cover.\\\"\\n\\nId. (quoting Sullivan v. County of Suffolk, 174 F.3d 282, 284 (2d\\n\\nCir. 1999)). Richardson hoped to use her MPDT funds to pay for\\n\\n\\\"modest expenditures\\\" not covered by Medicaid \\\"that would greatly\\n\\nimprove her quality of life,\\\" such as large-print word-search and\\n\\ncrossword puzzle books, new clothing, sweets, manicures,\\n\\nmagazines, and a radio. She also intended to hire a private\\n\\ncaregiver who could take her on excursions outside the nursing\\n\\nfacility.\\n\\n Following Richardson's deposit of funds into her MPDT\\n\\naccount, the Maine Department of Health and Human Services\\n\\n(\\\"MDHHS\\\") issued a notice threatening to suspend Medicaid coverage\\n\\nfor her care at St. Joseph's Manor for \\\"3.53 months\\\" because\\n\\n\\\"[a]ssets were transferred\\\" and she \\\"did not get something of equal\\n\\nvalue\\\" in exchange. See 42 U.S.C. § 1396p(c)(1)(A) (penalizing an\\n\\ninstitutionalized individual's \\\"dispos[al] of assets for less than\\n\\nfair market value\\\"). In response, Richardson requested an\\n\\nadministrative hearing. She and MPDT also filed this lawsuit in\\n\\nfederal court challenging MDHHS's decision to suspend her Medicaid\\n\\ncoverage. The hearing officer subsequently stayed state\\n\\nadministrative proceedings pending resolution of the lawsuit.\\n\\nRichardson will continue to receive Medicaid benefits until the\\n\\nadministrative review of MDHHS's decision is complete.\\n\\n\\n - 4 -\\n\\n Richardson and MPDT's complaint included two counts, but\\n\\nonly the second is at issue here.1 That count asserts a claim\\n\\nunder 42 U.S.C. § 1983, seeking a declaration and injunction\\n\\npredicated on the assertion that Richardson's transfer of assets\\n\\ninto a pooled special needs trust is not a transfer that affects\\n\\nMedicaid eligibility. The district court dismissed the complaint\\n\\nunder Federal Rule of Civil Procedure 12(b)(6). Richardson, 2018\\n\\nWL 1077275, at *18.\\n\\n In so doing, the district court ruled that Richardson\\n\\nhad standing to challenge the decision to suspend her Medicaid\\n\\ncoverage, but her claim was not yet ripe because \\\"[a]ny penalty\\n\\n(and related adverse impact on [Richardson's] benefits) ha[d] been\\n\\nstayed pending her administrative appeal,\\\" such that her claims\\n\\n\\\"lack[ed] sufficient finality and definiteness\\\" for judicial\\n\\nreview. Id. at *4–5. The district court determined that MPDT had\\n\\nassociational standing and that MPDT's contention that MDHHS's\\n\\nruling was currently causing MPDT to lose both enrollees and funds\\n\\nrendered its claim ripe for adjudication. Finally, the district\\n\\n\\n\\n 1 The district court dismissed Count I, which alleged that\\nRichardson and \\\"others similarly situated\\\" in fact \\\"receive fair\\nmarket value from the expenditures the [MPDT] can make on their\\nbehalf\\\" and therefore should incur no transfer penalty, because it\\nwas premised on two provisions of the Medicaid statute that the\\ncourt found to be unenforceable under 42 U.S.C. § 1983. Richardson\\nex rel. Carlin v. Hamilton, No. 2:17-CV-00134-JAW, 2018 WL 1077275,\\nat *1, 13 (D. Me. Feb. 27, 2018). On appeal, MPDT does not contest\\nthat ruling.\\n\\n\\n - 5 -\\n\\ncourt ruled that MDHHS correctly applied the governing statute in\\n\\nconsidering transfers to pooled special needs trusts in\\n\\ndetermining eligibility.\\n\\n MPDT alone filed a timely notice of appeal. No party\\n\\ndisputes that MPDT has standing or that its claim is ripe. Nor do\\n\\nwe see any reason to question either standing or ripeness sua\\n\\nsponte. As the district court observed, because \\\"(1) one of MPDT's\\n\\nmembers, [Richardson], has standing to [sue]; (2) the interests at\\n\\nstake . . . are germane to MPDT's purpose; and (3) the relief\\n\\nrequested does not require the participation of other MPDT\\n\\nbeneficiaries in this litigation,\\\" id. at *9, MPDT has standing to\\n\\nbring its claims on behalf of its beneficiaries. See Council of\\n\\nIns. Agents & Brokers v. Juarbe-Jiménez, 443 F.3d 103, 108 (1st\\n\\nCir. 2006). And as to ripeness, no one cites any reason to doubt\\n\\nthat, as the district court found, MDHHS's ruling currently harms\\n\\nMPDT. We therefore proceed to the merits of the order granting\\n\\nMDHHS's motion to dismiss Count II, which we review \\\"de novo,\\n\\napplying the same criteria as the district court.\\\" Germanowski v.\\n\\nHarris, 854 F.3d 68, 71 (1st Cir. 2017) (quoting Carrero-Ojeda v.\\n\\nAutoridad de Energía Eléctrica, 755 F.3d 711, 717 (1st Cir. 2014)).\\n\\n II.\\n\\n Medicaid is a \\\"health insurance program for low-income\\n\\nindividuals . . . funded by both the federal government and state\\n\\ngovernments.\\\" Massachusetts v. Sebelius, 638 F.3d 24, 26 (1st\\n\\n\\n - 6 -\\n\\nCir. 2011) (citing 42 U.S.C. § 1396 et seq.). Medicaid is supposed\\n\\nto be a \\\"payer of last resort,\\\" id. (quoting Ark. Dep't of Health\\n\\n& Human Servs. v. Ahlborn, 547 U.S. 268, 291 (2006)), and Medicaid\\n\\neligibility criteria generally take an applicant's income and\\n\\nwealth into account, see Lewis, 685 F.3d at 332.\\n\\n Under Medicaid's prior asset-counting rules, inventive\\n\\n\\\"lawyers and financial planners . . . devised various ways to\\n\\n'shield' wealthier [applicants'] assets,\\\" including by placing\\n\\nassets in trusts. Johnson v. Guhl, 357 F.3d 403, 405 (3d Cir.\\n\\n2004). So, Congress amended the Medicaid scheme, aiming, as a\\n\\ngeneral matter, to treat trusts as assets available to\\n\\nbeneficiaries, thus counting against Medicaid eligibility. Lewis,\\n\\n685 F.3d at 333; see also Omnibus Budget Reconciliation Act of\\n\\n1993, Pub. L. No. 103–66, 107 Stat. 312 (1993) (\\\"OBRA\\\").\\n\\n Although state participation in Medicaid is voluntary,\\n\\nparticipating states must adopt plans that meet certain\\n\\nrequirements that federal statutes and regulations impose. See\\n\\nArmstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1382\\n\\n(2015). Failure to comply may jeopardize federal funds. See 42\\n\\nU.S.C. § 1396a(a). Among these requirements, states must \\\"comply\\n\\nwith the provisions of section 1396p . . . with respect\\n\\nto . . . transfers of assets . . . and [the] treatment of certain\\n\\ntrusts.\\\" 42 U.S.C. § 1396a(a)(18). This case turns on the\\n\\n\\n\\n\\n - 7 -\\n\\nrelationship between two particular provisions of section 1396p:\\n\\nThe Trust Provision and the Transfer Provision.\\n\\n A.\\n\\n The Trust Provision, section 1396p(d), sets forth\\n\\nseveral general rules addressing the treatment of assets held in\\n\\ntrust (the trust corpus) and the treatment of payments out of\\n\\ntrusts. Assets in revocable trusts are considered resources\\n\\navailable to the applicant for purposes of determining his or her\\n\\nentitlement to benefits. Id. § 1396p(d)(1), (3)(A)(i). Payments\\n\\nfrom such trusts are considered either income of the applicant or\\n\\nassets disposed of by the applicant under the Transfer Provision.\\n\\nId. § 1396p(d)(3)(A)(ii), (iii). Assets in irrevocable trusts are\\n\\nalso considered available resources to the extent that payments\\n\\ncould be made from such trusts for the applicant's benefit. Id.\\n\\n§ 1396p(d)(3)(B)(i). And payments from these trusts are likewise\\n\\nconsidered either income or transferred assets. Id.\\n\\n§ 1396p(d)(3)(B)(i)(I), (II). Further, portions of irrevocable\\n\\ntrusts from which no payment could be made to the applicant are\\n\\nconsidered transferred assets, and the value of the trust for\\n\\npurposes of the Transfer Provision is determined by including the\\n\\namount of any payments made from such portion of the trust. Id.\\n\\n§ 1396p(d)(3)(B)(ii).\\n\\n These rules governing the treatment of trust corpuses\\n\\nand payments out of trusts do not apply universally. The 1993 OBRA\\n\\n\\n - 8 -\\n\\namendments exempted three types of trusts for disabled individuals\\n\\n-- special needs trusts, Medicaid income trusts, and pooled special\\n\\nneeds trusts -- from the eligibility rules set out in the Trust\\n\\nProvision. See id. § 1396p(d)(4)(A), (B), (C). This case\\n\\nconcerns pooled special needs trusts.\\n\\n A pooled special needs trust \\\"contain[s] the assets of\\n\\nan individual who is disabled (as defined in [42 U.S.C.\\n\\n§ 1382c(a)(3)]).\\\" Id. § 1396p(d)(4)(C). To qualify, such trusts\\n\\nmust meet the following conditions:\\n\\n (i) The trust is established and managed by a\\n nonprofit association.\\n\\n (ii) A separate account is maintained for each\\n beneficiary of the trust, but, for purposes of\\n investment and management of funds, the trust\\n pools these accounts.\\n\\n (iii) Accounts in the trust are established\\n solely for the benefit of individuals who are\\n disabled . . . by the parent, grandparent, or\\n legal guardian of such individuals, by such\\n individuals, or by a court.\\n\\n (iv) To the extent that amounts remaining in\\n the beneficiary's account upon the death of\\n the beneficiary are not retained by the trust,\\n the trust pays to the State from such\\n remaining amounts in the account an amount\\n equal to the total amount of medical\\n assistance paid on behalf of the beneficiary\\n under the State plan under this subchapter.\\n\\nId. No one disputes on this appeal that MPDT satisfies these\\n\\nconditions.\\n\\n\\n\\n\\n - 9 -\\n\\n B.\\n\\n The Transfer Provision, section 1396p(c), also sets\\n\\nforth a broad general rule: If an applicant or that person's\\n\\nspouse \\\"disposes of assets for less than fair market value on or\\n\\nafter the look-back date,\\\" the applicant is ineligible for\\n\\nservices, including long-term nursing care, for a period of time\\n\\nbased on the value of the assets disposed. Id. § 1396p(c)(1)(A).\\n\\nFor an institutionalized individual, the look-back date is a date\\n\\nup to sixty months before the first date as of which the individual\\n\\nis both institutionalized and has applied for benefits. Id.\\n\\n§ 1396p(c)(1)(B)(i)–(ii). Essentially, this means that if a\\n\\nperson disposes of assets for less than fair market value while\\n\\nreceiving benefits or shortly before applying for benefits, the\\n\\ndisposition will postpone eligibility. In short, you can't make\\n\\nyourself eligible for Medicaid faster by disposing of your assets\\n\\nunless you act before the look-back date. Here, there is no\\n\\ndispute that Richardson's transfer of assets occurred after the\\n\\nlook-back date.\\n\\n The Transfer Provision also contains a list of\\n\\nexceptions to its general rule governing the disposition of assets.\\n\\nEspecially relevant here are the two exceptions provided by\\n\\nsubsections 1396p(c)(2)(B)(iii) and (iv). First, subsection (iii)\\n\\napplies to assets transferred to trusts, including pooled special\\n\\nneeds trusts, established for an applicant's disabled child.\\n\\n\\n - 10 -\\n\\nSecond, subsection (iv) applies to assets \\\"transferred to a trust\\n\\n(including a trust described in subsection (d)(4) of this section)\\n\\nestablished solely for the benefit of an individual under 65 years\\n\\nof age who is disabled.\\\" Id. § 1396p(c)(2)(B)(iv) (emphasis\\n\\nadded). While we assume that MPDT is a trust \\\"described in\\n\\nsubsection (d)(4),\\\" and that Richardson's MPDT account was\\n\\nestablished for her own benefit, she was not younger than sixty-\\n\\nfive when her conservator deposited the funds in the trust.\\n\\n III.\\n\\n We consider first the breadth of the general rule set\\n\\nforth by the Transfer Provision: That general rule applies, as\\n\\nrelevant here, when a putative beneficiary \\\"disposes of assets for\\n\\nless than fair market value.\\\" Id. § 1396p(c)(1)(A). The statute\\n\\ndoes not define \\\"dispose,\\\" so we assume the word carries its\\n\\nordinary meaning. Merriam Webster defines \\\"dispose,\\\" in relevant\\n\\npart, as \\\"to transfer to the control of another.\\\" Merriam\\n\\nWebster's Collegiate Dictionary (10th ed. 1993). The Sixth Edition\\n\\nof Black's Law Dictionary defines \\\"dispose of\\\" as \\\"to alienate or\\n\\ndirect the ownership of property . . . to pass into the control of\\n\\nsomeone else; to alienate, relinquish, or get rid of.\\\" Dispose\\n\\nof, Black's Law Dictionary (6th ed. 1990). The statute's text\\n\\nequates \\\"dispose\\\" with \\\"transfer.\\\" Likewise, the Ninth Edition of\\n\\nBlack's defines \\\"transfer\\\" as \\\"[a]ny mode of disposing of or\\n\\nparting with an asset or interest in an asset.\\\" Transfer, Black's\\n\\n\\n - 11 -\\n\\nLaw Dictionary (9th ed. 2009). Trust law, in turn, regards a\\n\\ntransfer or conveyance of property as necessary to create a valid\\n\\ntrust. 76 Am. Jur. 2d Trusts § 47 (2018).\\n\\n In short, all principal resources strongly indicate that\\n\\nwhen a person places her property into a trust (and most certainly\\n\\nan irrevocable trust), thereby surrendering control of the\\n\\nproperty to the trustee, she has disposed of the property. In the\\n\\nabsence of some reasonably specific instruction to the contrary,\\n\\nit follows that the Transfer Provision's general rule covers the\\n\\nconveyance of property to a trust, including a pooled special needs\\n\\ntrust like MPDT. That the Transfer Provision includes exceptions\\n\\nfor transfers to pooled special needs trusts in two circumstances\\n\\nreinforces this conclusion. See 42 U.S.C. § 1396p(c)(2)(B)(iii)–\\n\\n(iv). The presence of specifically enumerated exceptions also\\n\\nindicates that Congress likely intended to make no other exceptions\\n\\napart from those specified. See Sony BMG Music Entertainment v.\\n\\nTenenbuam, 660 F.3d 487, 499 (1st Cir. 2011) (citing Tenn. Valley\\n\\nAuth. v. Hill, 437 U.S 152, 188 (1978)).\\n\\n MPDT characterizes the foregoing textual analysis as\\n\\nunduly myopic. MPDT correctly observes that we must rest our\\n\\nanalysis on the statute as a whole, giving due weight to the\\n\\ncontext in which the text at issue appears. When we do this, MPDT\\n\\ncontends, we should conclude that the Transfer and Trust Provisions\\n\\nare \\\"cognate subsections\\\" with their \\\"own area[s] of operation\\\"\\n\\n\\n - 12 -\\n\\nthat do not overlap except as \\\"explicitly specified.\\\" Under this\\n\\nview, the Trust Provision \\\"broadly and comprehensively regulates\\n\\nthe impact on Medicaid eligibility of trusts created or funded by\\n\\nthe individuals seeking Medicaid benefits.\\\" And since nothing in\\n\\nthe Trust Provision states that a transfer of assets into a pooled\\n\\nspecial needs trust will affect eligibility, MPDT reasons, that is\\n\\nthe end of the matter.\\n\\n To underpin this view of how the two provisions interact,\\n\\nMPDT and its supporting amici point to the treatment of irrevocable\\n\\ntrusts in subsection 1396p(d)(3)(B). Subsection 1396p(d)(3)(B)(i)\\n\\nspecifies that the portion of the trust corpus from which payments\\n\\ncould be made to the individual will be deemed available to the\\n\\nindividual, and payments from an irrevocable trust for any purpose\\n\\nother than to or for the benefit of the individual \\\"shall be\\n\\nconsidered a transfer of assets by the individual subject to [the\\n\\nTransfer Provision].\\\" Subsection 1396p(d)(3)(B)(ii) further\\n\\nprovides that any portion of an irrevocable trust from which no\\n\\npayment could be made to the individual \\\"shall be considered, as\\n\\nof the date of establishment of the trust . . . to be assets\\n\\ndisposed of by the individual for purposes of [the Transfer\\n\\nProvision].\\\" MPDT and amici argue that these commands to treat\\n\\ncertain parts of the corpus of or payments from an irrevocable\\n\\ntrust as subject to the transfer penalty give rise to a negative\\n\\n\\n\\n\\n - 13 -\\n\\ninference that establishing an irrevocable trust not penalized\\n\\nunder these subsections incurs no transfer penalty.\\n\\n It appears that the Centers for Medicare and Medicaid\\n\\nServices (\\\"CMS\\\"), the arm of the Department of Health and Human\\n\\nServices (\\\"HHS\\\") that interprets the Medicaid statute, might have\\n\\nshared the view that the specific commands of the Trust Provision\\n\\ncan take priority over the more general commands of the Transfer\\n\\nProvision. We say \\\"might\\\" because CMS seemed to invoke this view\\n\\nonly when necessary to avoid a potential double penalty (e.g.,\\n\\npenalizing the same transfer of assets twice). State Medicaid\\n\\nManual, Health Care Financing Administration Pub. 45–3,\\n\\nTransmittal 64, § 3259.6(G) (Nov. 1994) (\\\"To avoid such a double\\n\\npenalty, application of one provision must take precedence over\\n\\napplication of the other provision.\\\" (emphasis added))\\n\\n[hereinafter \\\"Transmittal 64\\\"]. In any event, even assuming this\\n\\nview to be correct, MPDT and amici run into trouble in the very\\n\\nnext subsection. Subsection 1396p(d)(4) states that the entire\\n\\nTrust Provision (including those portions of\\n\\nsubsection 1396p(d)(3) upon which MPDT relies to draw a negative\\n\\ninference precluding application of the Transfer Provision in some\\n\\ninstances) does not apply to pooled special needs trusts. As the\\n\\nSecond Circuit has observed, \\\"[S]ubparagraph (d)(4) exempts\\n\\nqualifying trusts from the rules in (d)(3) but is silent about the\\n\\n\\n\\n\\n - 14 -\\n\\nnature or scope of the rules the agency should apply in their\\n\\nstead.\\\" Sai Kwan Wong v. Doar, 571 F.3d 247, 260 (2d Cir. 2009).\\n\\n MPDT would nevertheless have us conclude that the\\n\\nexemption of pooled special needs trusts from the commands of the\\n\\nTrust Provision leaves such trusts, for present purposes, exempt\\n\\nas well from the Transfer Provision's general rule. But, like the\\n\\nSecond Circuit, we are \\\"not inclined to infer from statutory\\n\\nsilence a congressional intent to have no rules whatsoever apply\\n\\nto income placed in qualifying (d)(4) trusts.\\\" Id. Furthermore,\\n\\nas we have already explained, the Transfer Provision broadly\\n\\napplies to any disposition of assets to a trust (at least when not\\n\\noverridden by the specific treatment of the Trust Provision).\\n\\nMoreover, were MPDT correct that a transfer of assets to a pooled\\n\\nspecial needs trust is not a disposition subject to the Transfer\\n\\nProvision, that Provision's express exceptions for certain such\\n\\ntrusts in subsections 1396p(c)(2)(B)(iii) and (iv) would be\\n\\nentirely irrelevant. Lawless v. Steward Health Care Sys., LLC,\\n\\n894 F.3d 9, 23 (1st Cir. 2018) (\\\"[C]ourts should try to avoid\\n\\ninterpretations that render statutory language mere surplusage.\\\").\\n\\n In an effort to parry the notion that its reading renders\\n\\nsubsections 1396p(c)(2)(B)(iii) and (iv) superfluous, MPDT argues\\n\\nthat the Transfer Provision only applies to transfers of assets to\\n\\nthird-party trusts -- not to so-called \\\"self-settled\\\" trusts\\n\\ncreated for the benefit of the individual who created them. MPDT\\n\\n\\n - 15 -\\n\\ncontends that the four exceptions to the general transfer rule\\n\\nlaid out in subsections 1396p(c)(2)(B)(i) through (iv) all involve\\n\\ntrust transactions for the benefit of someone other than the\\n\\napplicant. Those subsections exempt assets transferred: (i) to\\n\\nthe individual's spouse or to another for the benefit of the\\n\\nspouse, (ii) from the individual's spouse to another for the\\n\\nbenefit of the spouse, (iii) to the individual's child or to a\\n\\ntrust for the individual's child, and (iv) to a trust, including\\n\\na trust of the kind described in 42 U.S.C. § 1396p(d)(4),\\n\\nestablished for the benefit of a disabled individual under age\\n\\nsixty-five. If the exemptions only deal with transfers to or for\\n\\nthe benefit of third parties, the argument goes, the relative\\n\\ncomprehensiveness of the Trust Provision becomes more apparent --\\n\\nand we may overlook the Transfer Provision's apparently clear\\n\\napplication to the transfer at issue here.\\n\\n This argument requires a more creative reading of the\\n\\ntext of subsection 1396p(c)(2)(B)(iv) than we are willing to\\n\\nundertake. MPDT would have us hold that \\\"for the benefit of an\\n\\nindividual under 65 years of age who is disabled\\\" means for the\\n\\nbenefit of such an individual other than the applicant. But, as\\n\\nthe Eighth Circuit explained in rejecting this same contention,\\n\\n\\\"the plain language of this paragraph does not address, let alone\\n\\nrestrict, the creator of the trust.\\\" Ctr. for Special Needs Tr.\\n\\nAdmin. v. Olson, 676 F.3d 688, 702 (8th Cir. 2012). If Congress\\n\\n\\n - 16 -\\n\\nintended subsection 1396p(c)(2)(B)(iv) to apply only to trusts\\n\\nbenefiting disabled individuals other than the applicant, we would\\n\\nexpect a clearer indication of that intent than the use of the\\n\\narticle \\\"an\\\" rather than \\\"the\\\" before the word \\\"individual.\\\" As\\n\\nthe subsection stands, the phrase \\\"an individual\\\" includes the\\n\\napplicant herself. Moreover, \\\"[b]y referencing\\n\\n'subsection (d)(4),' paragraph 1396p(c)(2)(b)(iv) necessarily\\n\\nincludes trusts created by the beneficiary, because\\n\\nsubsection (d)(4)(C) includes trusts created by the beneficiary.\\\"\\n\\nId. Finally, even if we were to read the Transfer Provision's\\n\\nexceptions as limited to trusts established for other persons, we\\n\\nwould have simply limited the scope of the exceptions without\\n\\nlimiting the scope of that Provision's general rule.\\n\\n MPDT also puts forward a redundancy argument. To advance\\n\\nthis claim, MPDT points again to subsection 1396p(d)(3)(B)(ii) of\\n\\nthe Trust Provision. MPDT reasons that this subsection would be\\n\\nunnecessary if the Transfer Provision already, by its own force,\\n\\nclassified the transfer of assets to a trust, unless excepted, as\\n\\ngrounds for an eligibility penalty. But this claimed redundancy\\n\\nsays nothing about the impact of the Transfer Provision on exempt\\n\\ntrusts, like MPDT, as subsection 1396p(d)(3)(B)(ii) does not apply\\n\\nto funds placed in these trusts. See 42 U.S.C. § 1396p(d)(4).\\n\\nMoreover, as we have already explained, MPDT's alternative reading\\n\\nwould itself treat as surplusage subsections 1396p(c)(2)(B)(iii)\\n\\n\\n - 17 -\\n\\nand (iv), which expressly exempt from the Transfer Provision\\n\\ncertain transfers into pooled special needs trusts, but not others.\\n\\nGiven a choice between two potential redundancies, we are inclined\\n\\nto opt for the one that does not require us to ignore the most\\n\\nnatural reading of the text of the Transfer Provision's general\\n\\nrule.\\n\\n Properly returning its focus to that general rule, MPDT\\n\\nand amici also claim that no transfer or disposal of assets\\n\\noccurred at all in this case because the funds were \\\"given to the\\n\\ntrustee of a self-settled trust.\\\" Citing\\n\\nsubsection 1396p(d)(3)(B)(i), MPDT maintains that such assets\\n\\nremain \\\"available\\\" to beneficiaries, albeit not in the case of\\n\\npooled special needs trusts. MPDT cites no authority for its\\n\\nassertion that assets transferred to self-settled pooled special\\n\\nneeds trusts \\\"still belong to the applicant,\\\" such that \\\"they have\\n\\nnot been transferred.\\\" Rather, as MDHHS avers, the conveyance at\\n\\nissue here constituted an \\\"irrevocable transfer\\\" of legal title to\\n\\na trustee with \\\"sole and uncontrolled discretion\\\" to make\\n\\ndistributions for the benefit of the beneficiary. As we have\\n\\nalready explained, the customary meaning of the statutory word\\n\\n\\\"disposes\\\" in the general transfer rule fairly encompasses such a\\n\\nconveyance. Indeed, MPDT points to no definition of the term that\\n\\nwould not encompass such a conveyance. We therefore cannot agree\\n\\nwith MPDT that the entire Transfer Provision is inapplicable when\\n\\n\\n - 18 -\\n\\na putative beneficiary transfers her assets to a self-settled\\n\\npooled special needs trust.\\n\\n Taking an alternative track, MPDT seems to suggest that\\n\\nour reading of the statute actually leaves CMS no room to allow\\n\\nthe Trust Provision's specific mandates to, in some situations,\\n\\noverride the Transfer Provision's general rule. And because,\\n\\nwithout this latitude, reasons MPDT, double penalties (for\\n\\nineligibility and availability or for two transfers) would\\n\\nnecessarily occur, our reading must be incorrect. But, as we noted\\n\\nearlier, Transmittal 64 seems to state that the Trust Provision\\n\\nshould be \\\"given precedence\\\" when a transfer of assets into a\\n\\nnonexempt trust would be otherwise penalized twice.\\n\\nTransmittal 64, § 3259.6(G). MPDT never explains why CMS would\\n\\nnot still have this leeway under our reading or even how frequently\\n\\n(and unavoidably) such double penalties might occur. Furthermore,\\n\\nas we have already observed, the entirety of the Trust Provision\\n\\ndoes not apply to pooled special needs trusts. So, any carve-out\\n\\nfrom the transfer rules that the Trust Provision might create would\\n\\nhave no application to the trust at issue in this case.\\n\\n In light of the complexity of the foregoing discussion,\\n\\nwe summarize our reading of the statute: Subsection 1396p(c)(1)(A)\\n\\nof the Transfer Provision plainly and broadly treats as an\\n\\neligibility-delaying transfer any disposition of beneficiary\\n\\nassets to a trust for less than fair market value;\\n\\n\\n - 19 -\\n\\nsubsection 1396p(c)(2)(B)(iv) of the Transfer Provision creates an\\n\\nexception from that general rule for certain transfers to pooled\\n\\nspecial needs trusts established for the benefit of the\\n\\nbeneficiary, but only when the beneficiary is under sixty-five\\n\\nyears of age; and subsection 1396p(d)(3)(B) of the Trust Provision\\n\\nmay also implicitly except from that general rule certain transfers\\n\\nto irrevocable trusts, but that subsection does not apply to pooled\\n\\nspecial needs trusts, which are exempted from the whole of the\\n\\nTrust Provision under subsection 1396p(d)(4)(C). So, when a\\n\\nbeneficiary who is age sixty-five or older gives up her assets for\\n\\nless than fair market value to a pooled special needs trust, there\\n\\nhas been a transfer that triggers a temporary period of\\n\\nineligibility.\\n\\n Our reading is consistent with the holdings and dicta of\\n\\nother courts that have considered the issue. See Olson, 676 F.3d\\n\\nat 702 (\\\"By the omission of an age limit in the 'C' paragraph of\\n\\nsubsection (d), Congress's intent was to permit disabled persons\\n\\nover age 65 to participate in 'C' pooled trusts.\\\"); Cox v. Iowa\\n\\nDep't of Human Servs., 920 N.W.2d 545, 553 (Iowa 2018)\\n\\n(distinguishing \\\"between an individual's participation in a pooled\\n\\nspecial needs trust and the individual's temporary\\n\\ndisqualification from Medicaid long-term care benefits based on\\n\\nthat participation\\\"); In re Pooled Advocate Trust, 813 N.W.2d 130,\\n\\n142 (S.D. 2012) (noting that the Medicaid statute\\n\\n\\n - 20 -\\n\\n\\\"differentiate[s] between participation in a pooled trust and\\n\\nsubsequent penalty periods and delays in eligibility for transfers\\n\\nto the trust\\\" (citing Olson, 676 F.3d at 702)).\\n\\n So too, agency interpretations of the Trust and Transfer\\n\\nProvisions bolster our understanding of the statutory language.\\n\\nThe U.S. Supreme Court has recognized that \\\"even relatively\\n\\ninformal\\\" CMS guidance \\\"'warrant[s] respectful consideration' due\\n\\nto the complexity of the [Medicaid] statute and the considerable\\n\\nexpertise of the administering agency.\\\" Cmty. Health Ctr. v.\\n\\nWilson-Coker, 311 F.3d 132, 138 (2d Cir. 2002) (quoting Wis. Dep't\\n\\nof Health & Family Servs. v. Blumer, 534 U.S. 473, 497 (2002)).\\n\\nHere, the district court, the parties, and amici focus on three\\n\\nseparate agency interpretations of the relevant provisions: State\\n\\nAgency Regional Bulletin No. 2008-05 (the \\\"Bulletin\\\"),\\n\\nsections 3257 through 3259 of the State Medicaid Manual\\n\\n(\\\"Transmittal 64\\\"),2 and the Social Security Administration's\\n\\nProgram Operations Manual (\\\"SSA Manual\\\").\\n\\n As we have already explained, Transmittal 64 can indeed\\n\\nbe read as stating that the specific commands of the Trust\\n\\nProvision take precedence over the Transfer Provision's general\\n\\nrule, at least when necessary to avoid a potential double penalty.\\n\\n\\n\\n 2Updates to the State Medicaid Manual are known as\\n\\\"transmittals.\\\" CMS issued Transmittal 64 shortly after OBRA was\\npassed in 1993.\\n\\n\\n - 21 -\\n\\nBut Transmittal 64 also makes clear that, while certain trusts are\\n\\nexempt from both the Trust and Transfer Provisions, \\\"a special\\n\\nneeds trust established for a disabled individual who is age 66\\n\\ncould be subject to a transfer penalty.\\\" Transmittal 64\\n\\n§ 3259.7(B). MDHHS also correctly notes that there is no prospect\\n\\nof a double penalty in this case. That is, while a transfer of\\n\\nassets to a pooled special needs trust may be subject to a penalty\\n\\nperiod under the transfer rule, funds in pooled special needs\\n\\ntrusts are not considered available -- and therefore are not\\n\\n\\\"penalized\\\" for eligibility purposes -- under the Trust Provision.\\n\\nSo, although Transmittal 64 states that \\\"the trust provisions are\\n\\ngiven precedence in dealing with assets placed in trusts\\\" to avoid\\n\\nsuch a double penalty, this guidance is irrelevant here because\\n\\nassets placed in pooled special needs trusts are never subject to\\n\\na double penalty. Id. § 3259.6(G).\\n\\n The CMS Boston Regional Office's 2008 Bulletin\\n\\nexplicitly supports our reading of the Medicaid statute, stating,\\n\\nin no uncertain terms: \\\"A pooled trust established by an\\n\\nindividual age 65 or older is not exempt from the transfer of\\n\\nassets provisions.\\\" Ctrs. for Medicare & Medicaid Servs., State\\n\\nAgency Reg'l Bull. No. 2008-05, Medicaid Eligibility --\\n\\nApplication of Transfer of Assets Penalty for Pooled Trust (2008).\\n\\nIt further provides:\\n\\n\\n\\n\\n - 22 -\\n\\n Although a pooled trust may be established for\\n beneficiaries of any age, funds placed in a\\n pooled trust established for an individual age\\n 65 or older may be subject to penalty as a\\n transfer of assets for less than fair market\\n value. When a person places funds in a trust,\\n the person gives up ownership of those funds.\\n Since the individual generally does not\\n receive anything of comparable value in\\n return, placing funds in a trust is usually a\\n transfer for less than fair market value. The\\n statute does provide an exception to imposing\\n a transfer penalty for funds that are placed\\n in a trust established for a disabled\\n individual. However, only trusts established\\n for a disabled individual age 64 or younger\\n are exempt from application of the transfer of\\n assets penalty provisions . . . .\\n\\nId.\\n\\n The Social Security Administration reaches the same\\n\\nconclusion in its Program Operations Manual, \\\"the publicly\\n\\navailable operating instructions for processing Social Security\\n\\nClaims.\\\" In re Pooled Advocate Trust, 813 N.W.2d at 145 (quoting\\n\\nWash. State Dep't of Soc. & Health Servs. v. Guardianship Estate\\n\\nof Keffeler, 537 U.S. 371, 385 (2003)). The SSA Manual\\n\\nacknowledges that, while \\\"[t]here is no age restriction under [the\\n\\nTrust Provision's] exception,\\\" it also states that \\\"a transfer of\\n\\nresources to a trust for an individual age 65 or over may result\\n\\nin a transfer penalty.\\\" Soc. Sec. Admin., Program Operations\\n\\nManual System, Exceptions to Counting Trusts Established on or\\n\\nafter 1/1/00, SI 01120.203(B)(2)(a); see also Social Sec. Admin,\\n\\nProgram Operations Manual System, Exceptions - Transfers to a\\n\\n\\n\\n - 23 -\\n\\nTrust, SI 01150.121(A)(3) (\\\"The period of ineligibility does not\\n\\napply to an individual who transfers a resource to a trust\\n\\nestablished for the sole benefit of an individual including himself\\n\\nor herself who is under age 65 and is blind or disabled.\\\").\\n\\n Amici argue that the Bulletin's interpretation must be\\n\\nlegally incorrect because it would \\\"nullif[y]\\\" the exemption of\\n\\npooled special needs trusts from section 1396p(d). But, as MDHHS\\n\\ncounters, \\\"application of the Transfer Provision to the funding of\\n\\npooled special needs trusts does not prevent the Trust Provision\\n\\nfrom conferring real and tangible benefits.\\\" Rather, assets in\\n\\npooled special needs trusts are never counted as available\\n\\nresources or income under the Trust Provision, and transfers into\\n\\nsuch trusts by applicants before they reach the age of sixty-five\\n\\nare not subject to a penalty period at all. See In re Pooled\\n\\nAdvocate Trust, 813 N.W.2d at 143 (noting the need to\\n\\n\\\"differentiate between being denied Medicaid long-term care\\n\\nassistance and being subject to a delay in eligibility for Medicaid\\n\\nlong-term care assistance via a penalty period\\\" and explaining\\n\\nthat \\\"[t]he applicant may . . . qualify for medical-only coverage\\n\\nduring the penalty period[,] . . . and after the penalty period\\n\\nexpires, the applicant may thereafter be eligible for long-term\\n\\ncare assistance.\\\"). Although the impact of a penalty period on\\n\\neligibility for long-term care benefits is certainly not\\n\\n\\n\\n\\n - 24 -\\n\\nnegligible, neither are the potential benefits that remain from\\n\\nparticipation in timely-created pooled special needs trusts.\\n\\n It is true that CMS recognized in Transmittal 64 that\\n\\napplying the Transfer Provision to so-called Miller trusts would\\n\\nrender them ineffective, so CMS allows certain Miller trusts to\\n\\navoid a transfer penalty. See Transmittal 64 § 3259.7(B)(2). MPDT\\n\\ncontends that such an allowance conflicts with CMS's view that the\\n\\nTransfer Provision applies to some exempt (d)(4) trusts, like MPDT,\\n\\nsignaling that this interpretation must be incorrect. But\\n\\nTransmittal 64 provides only that a transfer penalty is not\\n\\ntriggered when \\\"resources placed in [a] trust are used to benefit\\n\\nthe individual, and the trust purchases items or services for the\\n\\nindividual at a fair market value.\\\" Id. Of course, if the\\n\\ndisposition of assets is indeed for fair market value, the Transfer\\n\\nProvision -- by its plain terms -- does not apply.3\\n\\n To the extent that MPDT further asserts that the plain-\\n\\ntext interpretation of the Trust and Transfer Provisions runs\\n\\nagainst the congressional purpose motivating their enactment, it\\n\\ndiscounts Congress's clear intent to ensure that individuals\\n\\n\\\"exhaust their own resources before turning to the public for\\n\\nassistance.\\\" Lewis, 685 F.3d at 332–33; see also Sai Kwan Wong,\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2381,"cells":{"id":{"kind":"number","value":4631540,"string":"4,631,540"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"AcBel Polytech, Inc. v. Fairchild Semiconductor Int'l"},"decision_date":{"kind":"string","value":"2019-06-20"},"docket_number":{"kind":"string","value":"18-1088P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before Torruella, Kayatta, and Barron, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"TORRUELLA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\nNos. 18-1088,\\n 18-1121\\n\\n ACBEL POLYTECH, INC., individually and as\\n assignee of EMC CORPORATION,\\n\\n Plaintiff-Appellant/Cross-Appellee,\\n\\n v.\\n\\n FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC.,\\n FAIRCHILD SEMICONDUCTOR CORPORATION,\\n\\n Defendants-Third Party Plaintiffs-Appellees/Cross-Appellants,\\n\\n SYNNEX ELECTRONICS HONG KONG LTD.,\\n SYNNEX TECHNOLOGY INTERNATIONAL CORP.,\\n\\n Third Party Defendants.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Denise J. Casper, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Zeb Landsman, with whom Richard Chassin, Jesse Travis Conan,\\nand Becker Glynn Muffly Chassin & Hosinski LLP were on brief, for\\nappellant/cross-appellee.\\n Matthew Iverson, with whom Daniel E. Rosenfeld, Stephen W.\\nHassink, Yasmin Ghassab, DLA Piper LLP, Jeffrey A. Rosenfeld, and\\nAlston & Bird LLP were on brief, for defendants-third party\\nappellees/cross-appellants.\\n\\fJune 20, 2019\\n\\n\\n\\n\\n -2-\\n\\f TORRUELLA, Circuit Judge. We often fail to notice the\\n\\ncomplex interplay between the numerous components that make up\\n\\nelectronic equipment. This is a case about one of these components\\n\\n-- a miniscule microcircuit that serves as a voltage regulator,\\n\\nthe KA7805ERTM (\\\"KA7805\\\").\\n\\n Defendant-Appellee Fairchild Semiconductor\\n\\nCorporation's (\\\"Fairchild US\\\") subsidiaries manufactured the\\n\\nKA7805. Plaintiff-Appellant AcBel Polytech, Inc. (\\\"AcBel\\\")\\n\\npurchased KA7805s from Fairchild's agent and installed them into\\n\\npower supply units (\\\"PSUs\\\") it then sold to EMC Corporation\\n\\n(\\\"EMC\\\"). EMC used the PSUs for its data storage devices. In 2010,\\n\\none of Fairchild US's subsidiaries began to manufacture a new\\n\\n\\\"shrunk-die\\\"1 version of the KA7805 (\\\"shrunk-die KA7805\\\"). After\\n\\nFairchild transitioned to the shrunk-die KA7805, EMC began to\\n\\nexperience problems with AcBel's PSUs. The shrunk-die KA7805s\\n\\nwere failing.\\n\\n AcBel attributed EMC's problems with its PSUs to the\\n\\ndesign of Fairchild's shrunk-die K8705. As a result, it filed a\\n\\ndiversity suit against Fairchild US and its holding company,\\n\\nFairchild Semiconductor International, Inc. (\\\"Fairchild\\n\\n\\n1 A die is a miniaturized electronic circuit manufactured in, and\\non, the surface of a thin substrate of semiconducting material\\n(e.g., silicone). The components of voltage regulators, like the\\nKA7805, are installed on a die.\\n\\n\\n -3-\\n\\fInternational\\\") (collectively, \\\"Fairchild\\\"), asserting claims of\\n\\nbreach of warranty (Counts I, II, XII and XIII); fraud and\\n\\nnegligent misrepresentation (Counts III, IV and V); \\\"design defect\\n\\n-- implied warranty/strict liability\\\" (Counts VI and XIV); \\\"design\\n\\ndefect -- negligence\\\" (Counts VII and XV); \\\"failure to warn --\\n\\nimplied warranty/strict liability\\\" (Counts VIII and XVI); \\\"failure\\n\\nto warn -- negligence\\\" (Counts IX and XVII); and violation of Mass.\\n\\nGen. Laws ch. 93A (Counts X and XVIII).2 AcBel asserted all claims\\n\\non its own behalf and on behalf of EMC, as its assignee, except\\n\\nfor its fraud and misrepresentation claims (Counts III, IV, and\\n\\nV).\\n\\n At the summary judgment stage, the district court\\n\\ndismissed all claims except those involving breach of implied\\n\\nwarranty (Counts I, II, XII, and XIII). After a nine-day bench\\n\\ntrial, the district court dismissed AcBel's remaining breach of\\n\\nimplied warranty claims. AcBel appeals from the dismissal of its\\n\\nimplied warranty of merchantability (Count I), fraud (Counts III\\n\\nand IV) and negligent misrepresentation (Count V) claims.\\n\\nFairchild cross-appeals, contending that, even if the district\\n\\n\\n\\n2 In its complaint, AcBel also presented two claims for punitive\\ndamages (Counts XI and XIX), but these were dismissed by the\\ndistrict court at the early stages of litigation pursuant to a\\nmotion to dismiss filed by Fairchild and are not subject to the\\npresent appeal.\\n\\n\\n -4-\\n\\fcourt's grounds for dismissal were improper, it is still not liable\\n\\nto AcBel because the district court erred in determining that\\n\\nFairchild's subsidiaries were its agents for liability purposes.\\n\\nAdditionally, Fairchild avers in its cross-appeal that, in the\\n\\nevent of reversal, this court should order discovery regarding\\n\\ncertain documents produced by AcBel after discovery had closed\\n\\n(the \\\"late-produced documents\\\").\\n\\n After careful review, we affirm the district court's\\n\\nfinding of Fairchild's liability for the actions of its\\n\\nsubsidiaries, vacate the district court's judgment dismissing\\n\\nAcBel's implied warranty of merchantability, fraud, fraud by\\n\\nomission, and negligent misrepresentation claims, and remand for\\n\\nfurther proceedings consistent with this opinion. Because it will\\n\\nlikely help develop the record for trial on the remanded claims,\\n\\nwe also grant Fairchild's request for additional discovery in\\n\\nrelation to the late-produced documents.\\n\\n I. BACKGROUND\\n\\n AcBel is a Taiwanese company that manufactures and sells\\n\\nPSUs, including Katina, a second-generation PSU used by its\\n\\ncustomer, EMC, in its data storage devices. The Katina PSU was\\n\\ncustom-made for EMC and specifically required the KA7805 voltage\\n\\nregulator, which was designed to emit a constant output of voltage,\\n\\nas one of its approximately 400 components.\\n\\n\\n -5-\\n\\f Fairchild US is a Delaware corporation. Its wholly-\\n\\nowned international subsidiaries (the \\\"Asian subsidiaries\\\")\\n\\nmanufactured, assembled, and distributed the KA7805s.\\n\\nSpecifically, the KA7805s were manufactured by Fairchild Korea\\n\\nSemiconductor Ltd. (\\\"FSC Korea\\\"), assembled by Fairchild\\n\\nSemiconductor Shuzhou Company, Ltd. (\\\"FSC Shuzhou\\\"), and\\n\\ndistributed by Fairchild Semiconductor PTE, Ltd. (\\\"FSC Singapore\\\")\\n\\nand Fairchild Semiconductor Hong Kong Ltd. (\\\"FSC Hong Kong\\\").\\n\\nAlthough the KA7805 voltage regulators were ultimately utilized in\\n\\nthe Katina PSU, Fairchild did not manufacture them specifically\\n\\nfor AcBel.\\n\\n In 2008, AcBel received a process change notice (\\\"PCN\\\")\\n\\nfrom Synnex,3 a company that had apparent authority to act as\\n\\nFairchild's agent, notifying it that the KA7805 voltage regulator\\n\\nwould be redesigned. The new version required that some internal\\n\\ncomponents be moved to accommodate the smaller die, including a\\n\\npart known as the zener diode. In January 2010, FSC Korea began\\n\\nto manufacture the new shrunk-die version of the KA7805. At the\\n\\nend of the design process, FSC Korea performed industry-standard\\n\\ntesting on the shrunk-die KA7805, and there were zero failures\\n\\n\\n3 \\\"Synnex\\\" refers to Synnex Technology International and Synnex\\nElectronics Hong Kong Ltd., third-party defendants that are not\\nparties to this appeal. Synnex distributed Fairchild's KA7805\\nvoltage regulators.\\n\\n\\n -6-\\n\\freported.4 Fairchild did not assign a new part number to the\\n\\nredesigned shrunk-die KA7805.\\n\\n Despite the shrunk-die KA7805's entry into the market in\\n\\nearly 2010, its manufacture and shipment was halted sometime in\\n\\nJuly 2010 when FSC Korea reported a quality incident involving a\\n\\nproduct that used the same shrunk die. The root cause of the\\n\\nreported quality incident was not immediately known. Fairchild\\n\\nUS recommended that FSC Korea permanently cease production of the\\n\\nshrunk-die version KA7805 and revert to the larger die, which was\\n\\ndone by week 35 of 2010. No notification of the switch from the\\n\\nshrunk-die KA7805 model back to the large-die model was provided\\n\\nto AcBel and Fairchild's other customers.\\n\\n Meanwhile, AcBel had purchased 195,000 shrunk-die\\n\\nKA7805s, all of which ended up in the second-generation Katina\\n\\nPSUs it manufactured for EMC. On or about December 3, 2010, while\\n\\nFSC Korea was still investigating the quality issue reported in\\n\\nJuly of that year, AcBel received notice from EMC that thousands\\n\\nof shrunk-die KA7805s had failed, causing the Katina PSUs in its\\n\\ndata storage devices to fail as well. Eventually, it was\\n\\n\\n\\n\\n4 FSC Korea tested the shrunk-die KA7805 in accordance with the\\nstandards set by the Joint Electron Device Engineering Council\\n(\\\"JEDEC\\\"), a body that establishes industry-accepted qualification\\nstandards for testing semiconductor reliability.\\n\\n\\n -7-\\n\\fdetermined that 26,000 PSUs needed to be replaced for EMC\\n\\ncustomers.\\n\\n No terms and conditions limiting liability in connection\\n\\nwith the KA7805 sales were provided to AcBel prior to December\\n\\n2010. At AcBel's request, a representative from FSC Hong Kong\\n\\nformed a task force to address the shrunk-die KA7805's failure\\n\\nissue. On December 22, 2010, Fairchild executed a letter\\n\\nguaranteeing AcBel that it would revert to the non-shrunk or large-\\n\\ndie design of the KA7805.\\n\\n The dispute over the cause of shrunk-die KA7805's\\n\\nfailures eventually led to the current litigation. AcBel\\n\\nattributed the part's failures to the shrunk-die model's design,\\n\\nwhich it claimed made the product defective. During trial,\\n\\nFairchild's expert testified that a certain sequence of events\\n\\nmust occur to trigger the shrunk-die KA7805's failure: (1) moisture\\n\\npenetration; (2) a mechanism for the generation of hydrogen from\\n\\nmoisture on the die surface; (3) a way for the hydrogen to get\\n\\nunderneath the silicon nitride at the edge of the die and find its\\n\\nway to the zener diode; (4) a trigger for the molecular hydrogen\\n\\nto form atomic hydrogen; and (5) that all of these occurrences\\n\\nhappen at relatively low temperatures. Evidence demonstrated that\\n\\nthe failure symptoms could only be duplicated by creating extreme\\n\\nconditions designed to make devices fail, such as a Highly\\n\\n\\n -8-\\n\\fAccelerated Stress Test (\\\"HAST\\\"), with bias, followed by a Low\\n\\nTemperature Operating Life test (\\\"LTOL\\\"). HAST and LTOL testing\\n\\nare not part of the JEDEC standards, so standard industry testing\\n\\nwould not uncover the shrunk-die KA7805's failure systems.\\n\\nAdditionally, evidence presented at trial suggested that EMC's\\n\\nproblems with the KA7805s may have resulted from the extreme heat\\n\\nproduced by AcBel's soldering of the microcircuits to the PSU\\n\\ncircuit boards.\\n\\n AcBel's expert, on the other hand, concluded the KA7805s\\n\\nhad a defective design, and claimed AcBel's soldering process was\\n\\nwithin industry standards. AcBel's expert believed the new\\n\\nplacement of the zener diode in the shrunk-die KA7805 made it\\n\\nsusceptible to moisture exposure, thereby impairing the voltage\\n\\nregulator's electrical function. The expert, however, could not\\n\\nidentify the specific mechanism that caused the KA7805s to fail\\n\\nand did not perform independent testing.\\n\\n II. DISCUSSION\\n\\nA. AcBel's Implied Warranty of Merchantability Claim (Count I)\\n\\n The district court held that Fairchild did not breach\\n\\nthe KA7805's implied warranty of merchantability. It based its\\n\\nholding on AcBel's failure to establish that the design defect of\\n\\nFairchild's shrunk-die KA7805 was foreseeable. AcBel contends\\n\\nthat the district court's analysis was legally flawed, inasmuch as\\n\\n\\n -9-\\n\\fit held that AcBel was required to establish that the design defect\\n\\nof Fairchild's shrunk-die KA7805 was foreseeable in order to\\n\\nprevail in its implied warranty of merchantability claim. Because\\n\\nAcBel challenges a legal determination made by the district court\\n\\nduring the course of the bench trial, our review is de novo.\\n\\nUnited States v. 15 Bosworth St., 236 F.3d 50, 53 (1st Cir. 2001).\\n\\n Under Massachusetts law, with certain exceptions not\\n\\napplicable here, \\\"a warranty that the goods shall be merchantable\\n\\nis implied in a contract for their sale if the seller is a merchant\\n\\nwith respect to goods of that kind.\\\" Mass. Gen. Laws ch. 106,\\n\\n§ 2–314(1) (adopted by Massachusetts from the Uniform Commercial\\n\\nCode (\\\"UCC\\\") § 2–314(1)). Thus, manufacturers impliedly warrant\\n\\nthat their products will be \\\"fit for the ordinary purposes for\\n\\nwhich such goods are used.\\\" Back v. Wickes Corp., 378 N.E.2d 964,\\n\\n969 (Mass. 1978) (quoting Mass. Gen. Laws ch. 106, § 2–314(2)(C)).\\n\\nThe cornerstone of the duty of warranty of merchantability \\\"is the\\n\\nanticipation of foreseeable uses.\\\" Cigna Ins. Co. v. Oy Saunatec,\\n\\nLtd., 241 F.3d 1, 16 (1st Cir. 2001).\\n\\n In its complaint, AcBel alleged that Fairchild breached\\n\\nthe implied warranty of merchantability by selling to AcBel\\n\\ndefective shrunk-die KA7805s that were unfit for their ordinary\\n\\npurpose. As correctly noted by the district court, for AcBel to\\n\\nsucceed on its breach of the implied warranty of merchantability\\n\\n\\n -10-\\n\\fclaim presented on its behalf and on behalf of EMC, it must have\\n\\ndemonstrated at trial that: (1) Fairchild manufactured or sold the\\n\\nshrunk-die KA7805s; (2) a defect or unreasonably dangerous\\n\\ncondition existed that rendered the shrunk-die KA7805s not\\n\\nsuitable for the ordinary uses for which voltage regulators were\\n\\nsold; (3) AcBel and EMC were using the shrunk-die KA7805s in a\\n\\nmanner that Fairchild intended or could have reasonably foreseen;\\n\\nand (4) the defect or unreasonably dangerous condition was a legal\\n\\ncause of AcBel's and EMC's injuries. See Provanzano v. MTD Prods.\\n\\nCo., 215 F. Supp. 3d 134, 138 (D. Mass. 2016) (citing Lally v.\\n\\nVolkswagen Aktiengesellschaft, 698 N.E.2d 28, 43 (Mass. App. Ct.\\n\\n1998)).\\n\\n As to the first prong, Fairchild challenges on appeal\\n\\nthe district court's determination that it is liable for the acts\\n\\nof its subsidiaries. Specifically, the district court found that,\\n\\nbecause Fairchild was so intermingled with the conduct of its\\n\\nsubsidiaries, they were its agents for liability purposes.5 This\\n\\nis relevant for our implied warranty of merchantability analysis\\n\\n\\n5 Given that the district court correctly decided this issue, and\\npersuasively explained its reasoning in detailed fashion, see\\nAcBel Polytech, Inc. v. Fairchild Semiconductor Int'l, Inc., No.\\nCV 13-13046-DJC, 2017 WL 6625036, at *9-10 (D. Mass. Dec. 27,\\n2017), we see no reason to write at length to place our seal of\\napproval on its decision. See In re Fin. Oversight & Mgmt. Bd.\\nfor P.R., No. 18-1165, 2019 WL 1349223, at *3 n.6 (1st Cir.\\nMar. 26, 2019).\\n\\n\\n -11-\\n\\fbecause the shrunk-die KA7805s were manufactured by FSC Korea and\\n\\nsold to AcBel by Synnex, which acted as FSC Hong Kong's agent.6\\n\\nThus, if Fairchild is not liable for its subsidiaries' actions,\\n\\nAcBel is unable to meet the first element of this implied warranty\\n\\nof merchantability inquiry. See Provanzano, 215 F. Supp. 3d at\\n\\n138.\\n\\n Fairchild accepts the district court's factual findings\\n\\nregarding its relationship with its Asian subsidiaries, but on\\n\\nappeal makes three strictly legal arguments in support of its\\n\\ncontention that the district court improperly held it liable for\\n\\nits subsidiaries' conduct.\\n\\n First, Fairchild sustains that the district court based\\n\\nits agency determination on the \\\"pervasive control\\\" theory but did\\n\\nnot make the requisite finding that Fairchild also used the\\n\\ncorporate form to engage in improper conduct. Fairchild contends\\n\\nthat the absence of improper conduct is dispositive because\\n\\n\\\"control, even pervasive control, without more, is not a sufficient\\n\\nbasis for a court to ignore corporate formalities . . . without a\\n\\nshowing of improper conduct.\\\" (quoting Scott v. NG U.S. 1, Inc.,\\n\\n881 N.E.2d 1125, 1132 (Mass. 2008)).\\n\\n Second, Fairchild argues that, even in the absence of\\n\\n\\n6 Fairchild does not challenge the FSC Hong Kong-Synnex agency\\nrelationship.\\n\\n\\n -12-\\n\\fimproper conduct, the district court's agency determination was\\n\\nerroneous because the facts it found do not establish its pervasive\\n\\ncontrol over its subsidiaries, as required to create liability.\\n\\n And third, Fairchild asserts it would not be liable for\\n\\nthe Asian subsidiaries' conduct under the apparent manufacturer\\n\\ndoctrine, as suggested by the district court in dicta, because for\\n\\nthe doctrine to apply, Fairchild must have \\\"participate[d]\\n\\nsubstantially in the design, manufacture, or distribution of the\\n\\n[KA7805s]\\\" and the district court made no finding to such effect.\\n\\n(quoting Lou v. Otis Elevator Co., 933 N.E.2d 140, 148 (Mass. App.\\n\\nCt. 2010)).\\n\\n We are not persuaded. A simple reading of the district\\n\\ncourt's judgment reveals that its decision was made on the basis\\n\\nof an agency theory, not a pervasive control theory, despite its\\n\\nciting of cases addressing the piercing of the corporate veil in\\n\\nsupport of its agency conclusion. See AcBel Polytech, 2017 WL\\n\\n6625036, at *9-10. The district court cited those cases to\\n\\nhighlight the level of control FSC had over its subsidiaries. Id.\\n\\nFairchild's level of control over its subsidiaries is not exclusive\\n\\nof agency but rather supportive of the district court's finding\\n\\nthat such relationship exists. Id. (citing RFF Family P'ship, LP\\n\\nv. Link Dev., LLC, 907 F. Supp. 2d 155, 161 (D. Mass. 2012) (\\\"An\\n\\nagency relationship is created when there is mutual consent,\\n\\n\\n -13-\\n\\fexpress or implied, that the agent is authorized to act on behalf\\n\\nand for the benefit of the principal, subject to the principal's\\n\\ncontrol.\\\" (emphasis added))).\\n\\n Moreover, the intermingling between two entities can\\n\\nalso provide an independent basis for the conclusion that an agency\\n\\nrelationship existed. To this point, in My Bread Baking Co. v.\\n\\nCumberland Farms, Inc., the Supreme Judicial Court of\\n\\nMassachusetts (\\\"SJC\\\") held that:\\n\\n Although common ownership of the stock of two or more\\n corporations together with common management,\\n standing alone, will not give rise to liability on\\n the part of one corporation for the acts of another\\n corporation or its employees, additional facts may be\\n such as to permit the conclusion that an agency or\\n similar relationship exists between the entities.\\n Particularly is this true (a) when there is active\\n and direct participation by the representatives of\\n one corporation, apparently exercising some form of\\n pervasive control, in the activities of another and\\n there is some fraudulent or injurious consequence of\\n the intercorporate relationship, or (b) when there is\\n a confused intermingling of activity of two or more\\n corporations engaged in a common enterprise with\\n substantial disregard of the separate nature of the\\n corporate entities . . . .\\n\\n233 N.E.2d 748, 751-52 (Mass. 1968) (emphasis added).\\n\\n Based on the foregoing and the fact that Fairchild\\n\\naccepts the district court's factual findings, which reveal the\\n\\nhigh degree of control Fairchild actually exercised over its\\n\\nsubsidiaries, we cannot find any error in the district court's\\n\\ndetermination that an agency relationship existed between\\n\\n\\n -14-\\n\\fFairchild and its Asian subsidiaries. The district court was not\\n\\nrequired to make any additional findings, as Fairchild contends,\\n\\nto impose liability. Accordingly, we conclude that AcBel met the\\n\\nfirst element of the implied warranty of merchantability test by\\n\\nestablishing that, for purposes of liability, Fairchild\\n\\nmanufactured and sold the shrunk-die KA7805s.\\n\\n The second element of the test required AcBel to show\\n\\nthat the shrunk-die KA7805 had a defect or unreasonably dangerous\\n\\ncondition7 that made it unsuitable for its ordinary use, while the\\n\\nthird element required AcBel to show it was, along with EMC, using\\n\\nthe shrunk-die KA7805s in a manner that Fairchild intended or could\\n\\nhave reasonably foreseen. Here, things start to get complicated.\\n\\nThe district court conflated its analysis of these two elements.\\n\\nThus, the specific basis for its conclusion that Fairchild did not\\n\\nviolate the shrunk-die KA7805's implied warranty of\\n\\nmerchantability is not completely clear. What is clear, however,\\n\\n\\n\\n7 In the context of the present case, where no person was\\nphysically injured, we interpret \\\"dangerous condition\\\" to mean a\\ncondition that presents a danger of injury to the product itself\\n-- the shrunk-die KA7805 -- and thus to its fitness for its\\nordinary purposes. See generally East River Steamship Corp. v.\\nTransamerica Delaval, Inc., 476 U.S. 858, 871-72 (1986)\\n(explaining, in the context of interpreting UCC § 2-314, that\\n\\\"[d]amage to a product itself is most naturally understood as a\\nwarranty claim\\\"); see also Mass. Gen. Laws ch. 106, § 2-314\\n(adopting UCC § 2-314 for purposes of Massachusetts implied\\nwarranty claims).\\n\\n\\n -15-\\n\\fis that the district court relied on a tort-based design defect\\n\\ntheory and, in doing so, erroneously added an inapplicable\\n\\n\\\"foreseeability by reasonable testing requirement\\\" to AcBel's\\n\\ncontract-based implied warranty of merchantability claim.\\n\\n After recounting the correct four-element test for an\\n\\nimplied warranty of merchantability claim, the district court\\n\\ncited to Town of Westport v. Monsanto Co., a tort case involving\\n\\na dangerous product,8 in support of its conclusion that Fairchild\\n\\ndid not breach the implied warranty of merchantability. AcBel\\n\\nPolytech, 2017 WL 6625036, at *12 (citing Town of Westport,\\n\\nNo. 14 -cv-12041, 2017 WL 1347671, at *4 (D. Mass. Apr. 7, 2017),\\n\\naff'd, 877 F.3d 58 (1st Cir. 2017)). Specifically, the district\\n\\ncourt held that \\\"[a] manufacturer may only be held liable for a\\n\\ndefective design if it fails to design against the reasonably\\n\\nforeseeable risks attending the product's use in that setting.\\\"\\n\\nId. (quoting Town of Westport, 2017 WL 1347671, at *4 (internal\\n\\ncitations and quotations omitted)). The court explained that\\n\\n\\\"[t]he expert testimony and other evidence concerning the design\\n\\nand testing of the shrunk-die KA7805 shows that, to the extent\\n\\n\\n\\n8 Specifically, in Town of Westport, plaintiffs filed suit\\nalleging tort liability against the manufacturer of a dangerous\\nproduct, polychlorinated biphenyls (\\\"PCBs\\\") -- chemicals that are\\nhazardous above certain concentrations. See Town of Westport v.\\nMonsanto Co., 877 F.3d 58, 61-62 (1st Cir. 2017).\\n\\n\\n -16-\\n\\fmoving the zener diode was a risk, there was no reasonably\\n\\nforeseeable risk in its design\\\" and, furthermore, that \\\"[d]espite\\n\\nthe shrunk-die KA7805's rate of failure . . . AcBel failed to show\\n\\nthat any reasonable testing regimen would have revealed any such\\n\\ndefect.\\\" Id.9\\n\\n The district court also seems to have focused on the\\n\\nshrunk-die KA7805's testing for purposes of its analysis of the\\n\\nsecond element of the implied warranty of merchantability test.\\n\\nAfter noting that Fairchild and its subsidiaries tested the shrunk-\\n\\ndie KA7805 in accordance with industry standards10 but could only\\n\\nrecreate its failure by running non-industry standard consecutive\\n\\nHAST and LTOL tests, the court held that \\\"even with the benefit of\\n\\nexpert testimony, AcBel did not show that the shrunk-die [KA7805]\\n\\nwas defective or had an unreasonably dangerous condition.\\\" Id.\\n\\nDoubling down on its focus on testing, the district court finalized\\n\\nits implied warranty of merchantability analysis relying on\\n\\nVassallo v. Baxter Healthcare Corp., 696 N.E.2d 909 (Mass. 1998),\\n\\n\\n\\n\\n9 Because these expressions address foreseeability, albeit\\nincorrectly, we read them to be related to the district court's\\nanalysis of the third element of the implied warranty of\\nmerchantability test, which will be discussed in turn.\\n10 As mentioned above, supra n.4, JEDEC establishes industry-\\naccepted standards for assessing reliability in the semiconductor\\ncomponent industry.\\n\\n\\n -17-\\n\\fanother tort case involving a dangerous product. 11 The court\\n\\nconcluded that \\\"[a]pplying 'the standard of knowledge of an expert\\n\\nin the appropriate field,' [Fairchild] 'could not have []\\n\\ndiscovered by way of reasonable testing' [the shrunk-die KA7805's]\\n\\nrisk of failure under the[] extreme circumstances\\\" created by\\n\\nconsecutively running the HAST and LTOL tests. AcBel Polytech,\\n\\n2017 WL 6625036, at *12 (quoting Vassallo, 696 N.E.2d at 923) (some\\n\\nalterations in the original).\\n\\n The link between a reasonable testing regime, which\\n\\ngenerally goes towards foreseeability, see Vassallo, 696 N.E.2d at\\n\\n923 (applying the reasonable testing standard in the context of a\\n\\nfailure to warn or provide instructions about risks context), and\\n\\nthe district court's conclusion that the KA7805 was not defective\\n\\nor had an unreasonably dangerous condition is not totally clear.\\n\\nNotwithstanding, because this conclusion was only supported by an\\n\\ninapplicable tort-based theory, we need not unravel this mystery\\n\\nto conclude that the district court erred.\\n\\n By considering foreseeability by reasonable testing for\\n\\nits analysis of the second and third elements of the implied\\n\\n\\n11 In Vassallo, the plaintiff sued the successor of a company that\\nmanufactured silicone breast implants she had implanted in her,\\nclaiming that they were negligently designed, accompanied by\\nnegligent product warnings, and breached the implied warranty of\\nmerchantability, with the consequence of causing injuries to her\\nperson. 696 N.E.2d at 912.\\n\\n\\n -18-\\n\\fwarranty of merchantability test, the district court improperly\\n\\ncommingled contract-based and tort-based theories of implied\\n\\nwarranty. See Rule v. Fort Dodge Animal Health, Inc., 607 F.3d\\n\\n250, 252 (1st Cir. 2010) (warning that \\\"[g]eneraliz[ations] about\\n\\nwarranty law should be [made] with care; there are variations in\\n\\nstate law, changes over time, modification by statutes like the\\n\\nUniform Commercial Code, [and] a mingling of tort and contract\\n\\nconcepts\\\"). When economic loss is the only injury that is claimed,\\n\\nrecovery for breach of an implied warranty should be construed as\\n\\ncontract-based, not tort-based, under Massachusetts law. Jacobs\\n\\nv. Yamaha Motor Corp., U.S.A., 649 N.E.2d 758, 762 (Mass. 1995)\\n\\n(recognizing a contract-based warranty claim \\\"to recover against\\n\\na manufacturer or remote seller for breach of warranty causing\\n\\ndamage other than personal injury\\\"); Bay State-Spray &\\n\\nProvincetown S.S., Inc. v. Caterpillar Tractor Co., 533 N.E.2d\\n\\n1350, 1352 (Mass. 1989). We have made the same distinction, see\\n\\nWilson v. Hammer Holdings, Inc., 850 F.2d 3, 7-8 (1st Cir. 1988)\\n\\n(noting a difference between \\\"products liability actions\\\" and\\n\\n\\\"contractually based warranty claims\\\"), and the Supreme Court has\\n\\nsaid as much in the context of an admiralty case, see East River\\n\\nSteamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871-\\n\\n75 (1986) (\\\"When a product injures only itself the reasons for\\n\\nimposing a tort duty are weak and those for leaving the party to\\n\\n\\n -19-\\n\\fits contractual remedies are strong.\\\"); see also 18 Williston on\\n\\nContracts § 52:67 (4th ed.) (\\\"An implied warranty may be breached\\n\\nwhether or not the seller is aware of a defect in the goods\\n\\n. . . .\\\").\\n\\n Because the injury here was to the shrunk-die\\n\\nKA7805s -- the product itself -- it sounds in contract, not tort.\\n\\nAs a result, the reasonableness of the testing of the shrunk-die\\n\\nKA7805 was inconsequential. Instead, the district court's\\n\\nanalysis should have been circumscribed to the foreseeability of\\n\\nthe shrunk-die KA7805's use. See Mass. Gen. Laws ch. 106, § 2-\\n\\n314(2)(c) (\\\"Goods to be merchantable must at least be . . . fit\\n\\nfor the ordinary purposes for which such goods are used . . . .\\\");\\n\\nsee also Cigna Ins. Co., 241 F.3d at 16.\\n\\n Thus, to conduct the proper contractual implied warranty\\n\\nof merchantability inquiry, we must turn to the question of whether\\n\\nAcBel's use of the shrunk-die KA7805's was foreseeable. The\\n\\nshrunk-die KA7805's functionality was contingent on it being\\n\\nsoldered into a circuit board, as AcBel did to install the KA7805s\\n\\nonto its PSUs. The act of soldering the KA7805 into a circuit\\n\\nimplicates exposure to high heat. Furthermore, the tests employed\\n\\nby Fairchild to verify the KA7805's reliability in accordance with\\n\\nthe industry standard and later to determine its failure mechanism\\n\\n\\n\\n\\n -20-\\n\\fall involved exposure to high heat.12 Finally, testimony at trial\\n\\nrevealed that Fairchild was aware of the multiple uses given to\\n\\nthe shrunk-die KA7805. Fairchild US's vice-president, Eric Hertz,\\n\\ndescribed the KA7805 as a \\\"jelly bean product\\\" -- \\\"a product that\\n\\n. . . is sold to a lot of different customers[] [for] a lot of\\n\\ndifferent applications.\\\" Taking these facts into account, we\\n\\ncannot conclude that AcBel was unable to meet the implied warranty\\n\\nof merchantability test's burden of establishing that its use of\\n\\nthe shrunk-die KA7805 was foreseeable.\\n\\n Our inquiry, however, does not end here. Even assuming\\n\\nthat its use of the shrunk-die KA7805s was foreseeable, AcBel was\\n\\nstill required to meet the fourth and last element of the implied\\n\\nwarranty of merchantability test: establishing that a defect or\\n\\nunreasonably dangerous condition of the shrunk-die KA7805\\n\\nconstituted the legal cause of the injuries sustained by itself\\n\\nand EMC. See Provanzano, 215 F. Supp. 3d at 138. The district\\n\\ncourt found that the root cause of the failures experienced by EMC\\n\\nwith the shrunk-die KA7805 was the sequence of events recreated by\\n\\nrunning the HAST, with bias, followed by a LTOL, but that is of\\n\\nlittle help to establish legal or proximate causation. 13 See\\n\\n\\n12 These tests exposed the shrunk-die KA7805 to temperatures as\\nhigh as 150 degrees Celsius. For context, water's boiling point\\nis 100 degrees Celsius.\\n13 The terms \\\"legal cause\\\" and \\\"proximate cause\\\" are\\n\\n -21-\\n\\fRestatement (Second) of Torts § 9 cmt. a (Am. Law. Ins. 1965)\\n\\n(establishing that legal causation traces liability to a person).\\n\\nLegal cause must be sufficient to result in liability. Restatement\\n\\n(Second) of Torts § 9 (Am. Law. Ins. 1965). Be it the result of\\n\\nan act or omission, legal causation leads to a consequence for\\n\\nwhich liability may be imposed on a party. Id.\\n\\n Given its finding on foreseeability, the district court\\n\\nhad no need to reach a finding on legal causation. The evidence\\n\\non this issue was conflicting. As the district court observed,\\n\\nthe problems EMC experienced with the shrunk-die KA7805s may have\\n\\noriginated when AcBel soldered them to its PSU circuit boards14 and\\n\\nother users reported a rate of 0.012%, while AcBel reported a\\n\\nfailure rate of 7.5% for the same relevant time period (third and\\n\\nfourth quarters of 2010).15 In conflict with these observations,\\n\\n\\n\\ninterchangeable. See CSX Transp., Inc. v. McBride, 564 U.S. 685,\\n701 (2011); Cause, Black's Law Dictionary (10th ed. 2014).\\n14 Specifically, the district court found that \\\"the problem with\\nthe shrunk-die KA7805 may have resulted from delamination caused\\nby extreme heat during AcBel's wave soldering process.\\\" AcBel\\nPolytech, 2017 WL 6625036, at *8. In further support of this\\nconclusion, it noted that \\\"[d]elamination was not present when the\\nKA7805s were originally shipped [by Fairchild]. It occurred when\\nthe KA7805s were in the care of AcBel.\\\" Id.\\n15 Furthermore, our own review of the record reveals that AcBel's\\ninternal documents reflect that 80% of its employees, including\\nengineers, failed their soldering skill performance examinations\\nin 2008. This, considered in tandem with EMC's heightened failure\\nrates in comparison with other sources, raises serious questions\\nas to whether AcBel's soldering practices caused the KA7805\\n\\n -22-\\n\\fthe court also noted -- without making any statements as to\\n\\ncredibility -- that AcBel's expert testified that AcBel's\\n\\nsoldering process was within industry standards.\\n\\n The inconclusive nature of the district court's findings\\n\\ncoupled with the absence of a causation analysis -- considered in\\n\\nconjunction with its application of an erred foreseeability\\n\\nanalysis -- counsels us against making a final determination as to\\n\\nwhether Fairchild actually breached the shrunk-die KA7805's\\n\\nwarranty of merchantability. With the benefit of the guidance set\\n\\nout above as to the proper inquiry to be performed in adjudicating\\n\\na contract-based implied warranty of merchantability claim, we\\n\\nbelieve the district court is in an improved position to evaluate\\n\\nthe parties' arguments and evidence in this all but simple case.\\n\\nAccordingly, we vacate the district court's dismissal of AcBel's\\n\\nimplied warranty of merchantability claim and remand for trial\\n\\nwhere the district court shall determine: whether the shrunk-die\\n\\nKA7805 had a defect or unreasonably dangerous condition that\\n\\nrendered it not suitable for the ordinary use for which it was\\n\\nsold; whether AcBel and EMC were using the shrunk-die KA7805 in a\\n\\nmanner that Fairchild intended or could have reasonably foreseen;\\n\\nand whether a defect or unreasonably defective condition of the\\n\\n\\n\\n\\nfailures.\\n\\n\\n -23-\\n\\fshrunk-die KA 7805 constituted the legal cause of AcBel's and EMC's\\n\\ninjury.16\\n\\nB. AcBel's Fraud and Misrepresentation Claims (Counts III, IV,\\n and V)\\n\\n AcBel also challenges the district court's entry of\\n\\nsummary judgment dismissing its fraud (Count III), fraud by\\n\\nomission (Count IV), and negligent misrepresentation (Count V)\\n\\nclaims. Our review is de novo. See Scholz v. Goudreau, 901 F.3d\\n\\n37, 44 (1st Cir. 2018). \\\"In so reviewing, we must 'tak[e] the\\n\\nfacts and all reasonable inferences therefrom in the light most\\n\\nfavorable to [the non-moving party],\\\" in this case AcBel. Id.\\n\\n(quoting Aponte-Rosario v. Acevedo-Vilá, 617 F.3d 1, 6 (1st Cir.\\n\\n2010)). We will affirm a district court's grant of summary\\n\\njudgment only \\\"when there is no genuine dispute as to any material\\n\\nfact and the movant is entitled to judgment as a matter of law.\\\"\\n\\nRivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 (1st Cir.\\n\\n2018) (citation and internal quotation marks omitted).\\n\\n The core of AcBel's fraud and negligent\\n\\nmisrepresentation claims rests on the following factual\\n\\nallegation: despite being required by industry custom, Fairchild\\n\\n\\n16 We assume, without concluding, that as part of trial proceedings\\nthe district court will also have to evaluate the misuse,\\nunreasonable use, and unforeseeable use defenses raised by\\nFairchild. See generally Cigna Ins. Co., 241 F.3d at 14-19; Allen\\nv. Chance Mfg. Co., 494 N.E.2d 1324 (Mass. 1986).\\n\\n\\n -24-\\n\\fdid not notify AcBel that it abandoned the shrunk-die KA7805 and\\n\\nreverted back to the large-die model in week 35 of 2010, either\\n\\nthrough a change in part number or issuance of a PCN. The district\\n\\ncourt based its dismissal of all three of AcBel's fraud and\\n\\nmisrepresentation claims primarily on its conclusion that AcBel's\\n\\nreliance on Fairchild's failure to change the KA7805's part number\\n\\nwhen the part was switched from the large-die to the shrunk-die\\n\\nmodel was, as a matter of law, unreasonable. We disagree and\\n\\ntherefore vacate the district court's dismissal of AcBel's fraud\\n\\nand misrepresentation claims and remand for adjudication of these\\n\\nclaims at trial. For clarity, we discuss each of AcBel's fraud\\n\\nand misrepresentation claims in turn.\\n\\n Under Massachusetts law, to recover on fraudulent\\n\\nmisrepresentation claims, a plaintiff must establish that\\n\\ndefendants: (1) \\\" made a false representation of material fact\\\";\\n\\n(2) \\\"with knowledge of its falsity\\\"; (3) \\\"for the purpose of\\n\\ninducing the plaintiff[] to act on this representation\\\"; (4) \\\"that\\n\\nthe plaintiff[] reasonably relied on the representation as true\\\";\\n\\nand (5) \\\"that [the plaintiff] acted upon it to their damage.\\\"\\n\\nCumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 918 N.E.2d\\n\\n36, 47 (Mass. 2009) (emphasis added); see also Rodi v. S. New\\n\\nEngland Sch. of Law, 532 F.3d 11, 15 (1st Cir. 2008) (pursuant to\\n\\nMassachusetts law, reliance upon the alleged misstatement must be\\n\\n\\n -25-\\n\\f\\\"reasonable under the circumstances\\\").\\n\\n The standard for a fraudulent omission claim retains the\\n\\nabove-cited elements but the \\\"false representation\\\" element takes\\n\\nthe form of an omission. See Sahin v. Sahin, 758 N.E.2d 132, 138\\n\\nn.9 (Mass. 2001). Additionally, to establish a fraud by omission\\n\\nclaim, a plaintiff must establish defendants' \\\"concealment of\\n\\nmaterial information\\\" and \\\"duty requiring disclosure.\\\" Id.\\n\\n The standard for a negligent misrepresentation claim,\\n\\nhowever, differs to a larger extent. \\\"Unlike fraud, negligent\\n\\nmisrepresentation does not require an intent to deceive or actual\\n\\nknowledge that a statement is false.\\\" Cumis Ins. Soc'y, 918 N.E.2d\\n\\nat 47. To succeed on a negligent misrepresentation claim, a\\n\\nplaintiff must establish that:\\n\\n [T]he defendants, \\\"in the course of [their] business,\\n profession or employment, or in any other transaction\\n in which [they had] a pecuniary interest, suppli[ed]\\n false information for the guidance of others in their\\n business transactions\\\" without exercising \\\"reasonable\\n care or competence in obtaining or communicating the\\n information,\\\" that those others justifiably relied on\\n the information, and that they suffered pecuniary loss\\n caused by their justifiable reliance upon the\\n information.\\n\\nId. at 47-48 (citation omitted) (some alterations in original)\\n\\n(emphasis added).\\n\\n As may be noted, and most importantly for purposes of\\n\\nour current analysis, all three of AcBel's fraud and\\n\\nmisrepresentation claims have a reliance requirement.\\n\\n -26-\\n\\f The district court addressed two elements of AcBel's\\n\\nfraud claims: Fairchild's alleged false representation and\\n\\nomission, and AcBel's reasonable reliance on the alleged\\n\\nmisrepresentation and omission. Its decision to grant summary\\n\\njudgment in favor of Fairchild, however, rested exclusively on the\\n\\nlatter.17\\n\\n As to the first switch from the large-die to shrunk-die\\n\\nmodel, the district court found that Fairchild did not make a\\n\\nmisrepresentation by failing to change the KA7805's part number\\n\\nbecause, in 2008, it provided AcBel \\\"adequate notice of the design\\n\\nchange\\\" through the delivery of a PCN.18 The PCN described the\\n\\nchanges that were going to be made to the KA7805 and stated that\\n\\nthe first shipment of shrunk-die model was expected to take place\\n\\nin approximately three months. As to the switch back to the large-\\n\\ndie model in week 35 of 2010, the district court concluded that,\\n\\n\\n17 A finding of a misrepresentation hinges on whether Fairchild\\nhad an obligation to change the KA7805's part number when it\\nswitched the microcircuit from the large-die to the shrunk-die\\nmodel. Because the parties dispute the requirement of a change in\\npart number, this raises an issue of material fact. Specifically,\\nAcBel contends that industry custom and standards required\\nFairchild to add a suffix to the part number, while Fairchild\\nsustains that no change was required. Notwithstanding, for\\npurposes of its summary judgment disposition, the district court\\nassumed the change was required and rested its conclusion on the\\nsupposed unreasonableness of AcBel's reliance on the KA7805's part\\nnumber.\\n18 The PCN was delivered to AcBel by Fairchild's agent, Synnex.\\n\\n\\n -27-\\n\\finasmuch as \\\"the [KA7805s] were returned to their original\\n\\ndesign[,] . . . labeling them with the original part number was\\n\\nnot a false statement even under AcBel's representation of the\\n\\nindustry custom.\\\" Accordingly, it held that Fairchild's \\\"failure\\n\\nto change the part number when 'the second change' was made [did]\\n\\nnot amount to a misrepresentation.\\\"\\n\\n Whether Fairchild's continued use of the same part\\n\\nnumber for the shrunk-die KA7805 constituted a misrepresentation\\n\\nis contingent on whether industry norm required a change -- an\\n\\nissue of material fact. On review, we must presume as much. See\\n\\nScholz, 901 F.3d at 44. Assuming that the change was required, as\\n\\nwe must, the district court's position in granting summary judgment\\n\\nthat Fairchild's failure to change the KA7805's part number was\\n\\nsomehow cured as a matter of law by the PCN in 2008, and then by\\n\\nthe reassignment of the unchanged part number back to the large-\\n\\ndie version in 2010, is unavailing. While it is true that Fairchild\\n\\nsent a PCN informing AcBel that a switch to a new shrunk-die model\\n\\nwas going to take place, nowhere in the PCN does Fairchild affirm\\n\\nor deny that a new part number was going to be assigned. Under\\n\\nthese circumstances was it not safe for AcBel to assume, at some\\n\\npoint, that the shrunk-die model retained the large-die model's\\n\\npart number, despite this being contrary to the usual practice\\n\\nunder industry custom? In such case, would changing the KA7805\\n\\n\\n -28-\\n\\fback to a large-die design without informing such change not\\n\\nconstitute a misrepresentation given that its original part number\\n\\nnow constituted the shrunk-die's part number? We view these\\n\\nquestions as too dependent on the idiosyncrasies of industry norms\\n\\nto be addressed with the record available to the district court at\\n\\nsummary judgment.\\n\\n Furthermore, the extent to which the PCN could have cured\\n\\nFairchild's failure to change the part number when switching to\\n\\nthe shrunk-die model is in itself an issue of material fact better\\n\\nleft for trial. Likewise, whether Fairchild was required to issue\\n\\na PCN in 2010 when switching back to the large-die model in 2010,\\n\\nas AcBel alleges was required by industry norm, is also an issue\\n\\nof material fact better left for trial.\\n\\n That the KA7805's part number, after week 35 of 2010,\\n\\nonce again coincided with the large-die model to which it was\\n\\noriginally assigned does not preclude the existence of an\\n\\naffirmative misrepresentation. The thrust of AcBel's affirmative\\n\\nmisrepresentation claim lies in that, by keeping the same part\\n\\nnumber for both the large-die and shrunk-die models, Fairchild\\n\\nmisrepresented that the part had not undergone a material change.\\n\\nThe factfinder could certainly find that a highly unusual switch\\n\\nback to the large-die model, which would have put AcBel on notice\\n\\nregarding issues with the shrunk-die model, is a material change.\\n\\n\\n -29-\\n\\f In any case, we now turn to what we read as the district\\n\\ncourt's primary basis for dismissing AcBel's fraud and\\n\\nmisrepresentation claims, regardless of whether Fairchild's\\n\\nfailure to change the part number constituted a misrepresentation\\n\\n-- AcBel's allegedly unreasonable reliance on the unchanged part\\n\\nnumber.\\n\\n In regard to AcBel's reliance on the unchanged part\\n\\nnumber, the district court held that, even assuming that the\\n\\nunchanged part number constituted a misrepresentation, AcBel's\\n\\nreliance upon it was unreasonable as a matter of law because the\\n\\nPCN placed AcBel on notice that the KA7805 was being switched to\\n\\nthe shrunk-die model. For the district court, the PCN and the\\n\\nunchanged part number (to the extent that it represented that the\\n\\nKA7805 had not been altered) constituted \\\"conflicting statements\\\"\\n\\nthat \\\"engender[ed] doubt\\\" and thus rendered AcBel's reliance on\\n\\nthe part number unreasonable as a matter of law. Along the same\\n\\nvein, the court considered that AcBel's reliance was unreasonable\\n\\nbecause, at the very least, these \\\"conflicting statements\\\"\\n\\ntriggered AcBel's duty to inquire as to whether \\\"the information\\n\\nin the PCN was nullified by the allegedly unchanged part number,\\\"\\n\\nwhich the record reflects AcBel did not do. AcBel Polytech, Inc.\\n\\nv. Fairchild Semiconductor Int'l, Inc., No. CV 13-13046-DJC, 2016\\n\\nWL 7197368, at *12 (D. Mass. Dec. 9, 2016).\\n\\n\\n -30-\\n\\f In order to establish a claim for fraud, reliance upon\\n\\nthe alleged misstatement must be \\\"reasonable under the\\n\\ncircumstances.\\\" Rodi, 532 F.3d at 15. While \\\"[a] party may\\n\\njustifiably rely on a misrepresentation even if he could have\\n\\nascertained its falsity by conducting an investigation,\\\"\\n\\nmisrepresentations that could be discovered by a \\\"cursory glance,\\\"\\n\\nand are known to be false or obviously false, may not be relied\\n\\nupon. Sanford Inst. for Sav. v. Gallo, 156 F.3d 71, 74-75 (1st\\n\\nCir. 1998).19 As the SJC has explained, a plaintiff may not rely\\n\\n\\\"on a representation that [is] either preposterous or palpably\\n\\nfalse.\\\" Yorke v. Taylor, 124 N.E.2d 912, 916 (Mass. 1955); see\\n\\nalso Damon v. Sun Co., Inc., 87 F.3d 1467, 1480 (1st Cir. 1996)\\n\\n(\\\"Only reliance on 'preposterous or palpably false'\\n\\nrepresentations vitiates a misrepresentation claim.\\\" (citation\\n\\nomitted)). \\\"[I]f a mere cursory glance would have disclosed the\\n\\nfalsity of the representation, its falsity is regarded as obvious\\n\\n. . . .\\\" Kuwaiti Danish Comput. Co. v. Dig. Equip. Corp., 781\\n\\nN.E.2d 787, 795 (Mass. 2003). Accordingly, if the plaintiff could\\n\\n\\n\\n19 Although Sanford is a bankruptcy case, the cited expressions\\nregarding reasonable reliance are guided by the same common law\\nconcepts adopted by Massachusetts law. Compare Sanford, 156 F.3d\\nat 74-76 (citing Restatement (Second) of Torts §§ 540, 541 cmt. a\\n(1976)) with Kuwaiti Danish Comput. Co. v. Dig. Equip. Corp., 781\\nN.E.2d 787, 795 (Mass. 2003) (citing Restatement (Second) of Torts\\n§§ 540, 541).\\n\\n\\n -31-\\n\\fhave discovered the falsity of the defendant's representation, but\\n\\nfailed to do so, plaintiff's reliance is reasonable unless there\\n\\nwere \\\"any warning signs . . . either in the documents, in the\\n\\nnature of [a] transaction, or in [defendant's] conduct or\\n\\nstatements.\\\" Sanford, 156 F.3d at 75 (quoting Restatement (Second)\\n\\nof Torts § 540, cmt. a (1977)); see also Kenda Corp., Inc. v. Pot\\n\\nO'Gold Money Leagues, Inc., 329 F.3d 216, 227 (1st Cir. 2003)\\n\\n(\\\"Certainly where a defendant has willfully made false\\n\\nrepresentations with intent to deceive he ought not to be relieved\\n\\nof liability because of his victim's lack of diligence.\\\" (quoting\\n\\nYorke, 124 N.E.2d at 916)).\\n\\n Clearly conflicting statements, however, \\\"should [place]\\n\\npetitioner on notice that he should not rely on either statement.\\n\\nConfronted by such a conflict a reasonable person investigates\\n\\nmatters further; he receives assurances or clarification before\\n\\nrelying.\\\" Trifiro v. N.Y. Life Ins. Co., 845 F.2d 30, 33 (1st\\n\\nCir. 1988). \\\"Explicit conflict engenders doubt, and to rely on a\\n\\nstatement the veracity of which one should doubt is unreasonable.\\\"\\n\\nId. at 34 (emphasis added).\\n\\n The conflicting information that the district court\\n\\nfound triggered AcBel's duty to inquire -- or otherwise make its\\n\\nreliance on either piece of information unreasonable -- was the\\n\\ncontent of the Fairchild's 2008 PCN and the unchanged part number\\n\\n\\n -32-\\n\\fin the KA7805's label. The PCN represented that the KA7805 was\\n\\nundergoing a design change. The unchanged part number, on the\\n\\nother hand, could be perceived to represent that no change was\\n\\nmade to the KA7805's design following the delivery of the PCN. In\\n\\nlight of the fact that the PCN did not provide a specific date for\\n\\nthe shipment of shrunk-die KA7805s, we cannot agree that there was\\n\\nno issue of material fact regarding the existence of a conflict\\n\\nbetween the representations, much less as to the existence of an\\n\\n\\\"[e]xplicit conflict\\\" that \\\"engender[ed] doubt\\\" and thus triggered\\n\\nAcBel's duty to inquire. Id. Given the uncertainty as to shipment\\n\\ndate reflected in the PCN, and the lack of temporal proximity\\n\\nbetween the delivery of the PCN and the actual commencement of\\n\\nshipment of shrunk-die KA7805s to AcBel -- approximately one year\\n\\nand nine months later -- we conclude that the issues of AcBel's\\n\\nreasonable reliance (in general) and the existence of a conflict\\n\\nin information that triggered AcBel's duty to inquire (more\\n\\nspecifically) would be more properly addressed at trial.20 See\\n\\nMarram v. Kobrick Offshore Fund, Ltd., 809 N.E.2d 1017, 1031 (Mass.\\n\\n\\n\\n20 The district court did not address AcBel's reliance on the\\nunchanged part number in relation to Fairchild's switch back to\\nthe large-die model in week 35 of 2010, but rather only as to the\\nfirst switch to the shrunk-die in week 1 of 2010. Fairchild's\\nfailure to differentiate between the two models based on part\\nnumber permitted it to revert to the large-die model without\\nexplicitly revealing that this change had been made.\\n\\n\\n -33-\\n\\f2004).\\n\\n By the same token, we cannot agree that AcBel's reliance\\n\\non the unchanged part number was unreasonable as a matter of law.\\n\\nA court's reasonable reliance analysis is based on the\\n\\ncircumstances of the alleged reliance on a representation. Rodi,\\n\\n532 F.3d at 15. The circumstances in the present case are clearly\\n\\ndistinguishable from those presented in the cases cited by\\n\\nFairchild, as well as other we have located, where the First\\n\\nCircuit or Massachusetts courts have found a plaintiff's reliance\\n\\nunreasonable due to the existence of conflicting information.\\n\\n For example, in Trifiro, cited approvingly by the\\n\\ndistrict court, the plaintiff claimed that he reasonably relied on\\n\\na statement made by defendant's officer as to the formation of a\\n\\ncontract which was directly contradicted by a letter sent by\\n\\ndefendant shortly thereafter. 845 F.2d at 33. Specifically,\\n\\nduring an initial conversation, defendant's officer expressed to\\n\\nplaintiff's agent that, despite his employer having a committee\\n\\napproval requirement, the transaction proposed by plaintiff \\\"would\\n\\nbe a small deal for [defendant] and . . . committee approval would\\n\\nbe a mere formality.\\\" Id. Notwithstanding, a mere two days to a\\n\\nweek later, the defendant sent the plaintiff a letter explicitly\\n\\nstating that \\\"approval of any proposal would be at the sole\\n\\ndiscretion of the appropriate committee or authority\\\" and,\\n\\n\\n -34-\\n\\ffurthermore, requesting that plaintiff \\\"acknowledge [his]\\n\\nunderstanding of . . . [the requirement of committee approval] by\\n\\nsigning and dating the enclosed copy of th[e] letter.\\\" Id. (some\\n\\nalterations in the original). Plaintiff signed the letter but,\\n\\nnonetheless, later asked this court to \\\"hold that he acted\\n\\nreasonably in relying on the earlier oral statement made to [his\\n\\nagent] that committee approval would be a mere formality.\\\" Id.\\n\\nWe rejected the plaintiff's request holding that \\\"[w]hen a person\\n\\nacts in a way contrary to his own acknowledged understanding of\\n\\nthe facts, his acts must be deemed unreasonable as a matter of\\n\\nlaw,\\\" and, furthermore, that the circumstances rendered the\\n\\nplaintiff's reliance unreasonable because he was the recipient of\\n\\nexplicitly conflicting information -- one statement that approval\\n\\nof his proposal was certain versus a second representing that it\\n\\nwas uncertain. Id.\\n\\n These cases are very fact-dependent. Nevertheless, the\\n\\ncircumstances in the present case lead us to conclude that the\\n\\nquestion of whether AcBel's reliance on the unchanged part number\\n\\nwas reasonable is an issue of fact. First, while it is true that\\n\\nAcBel admitted it received the PCN informing that Fairchild would\\n\\nswitch to a small-die model, nowhere in the PCN did Fairchild state\\n\\nthat the part number would not be changed in contravention to\\n\\nindustry norm. Second, the discrepancy between the PCN and\\n\\n\\n -35-\\n\\funchanged part number was not as explicit as, perhaps, conflicting\\n\\nstatements such as being told \\\"yes\\\" and later \\\"no.\\\" The statements\\n\\nhere are more similar, at best, to a \\\"yes\\\" followed by \\\"maybe no.\\\"\\n\\nThat is, an unchanged part number does not provide the same level\\n\\nof certainty regarding contradiction as does an affirmative\\n\\nstatement to the opposite. See id. 33-34. Third, the temporal\\n\\nproximity between the conflicting statements in Trifiro was\\n\\nsignificantly short, a week at most, while the supposed conflict\\n\\nbetween the PCN, representing that the KA7805 was to be redesigned,\\n\\nand the shrunk-die KA7805's labelling (i.e., with the same part\\n\\nnumber as the large-die model), representing that the part had not\\n\\nundergone a change, came into effect approximately one year and\\n\\nnine months later. With this amount of time before the KA7805's\\n\\nlabelling could possibly constitute a false statement, a\\n\\nfactfinder might find it hard to understand how its falsity could\\n\\nbe obvious to AcBel. See Restatement (Second) of Torts § 541\\n\\n(1977) (\\\"The recipient of a fraudulent misrepresentation is not\\n\\njustified in relying upon its truth if he knows that it is false\\n\\nor its falsity is obvious to him.\\\").\\n\\n Similarly, in Kuwaiti Danish Computer Co., the plaintiff\\n\\nalleged that a contract had been formed based on his reliance on\\n\\nthe conduct and statements made by one of the defendant's employees\\n\\nat the end of negotiations. 781 N.E.2d at 795. The SJC held that\\n\\n\\n -36-\\n\\fplaintiff's reliance was unreasonable as a matter of law because\\n\\n\\\"any statement or conduct\\\" of defendant's employee \\\"conflicted\\n\\nwith the qualifying language of [his] quotation, which stated that\\n\\nit was only an invitation to offer, and that any contract required\\n\\napproval from someone with authority at [the defendant company].\\\"\\n\\nId. In reaching this conclusion, the SJC stressed that \\\"[t]he\\n\\nqualifying language was presented essentially contemporaneously\\n\\nwith [the defendant's employee's] statements.\\\" Id.\\n\\n Again, the distinctions between these circumstances and\\n\\nthose presented in the case at hand are clear. The conflict\\n\\nbetween the defendant employee's statement and the information in\\n\\nthe quotation he provided was unequivocal. As the SJC noted,\\n\\n\\\"[a]ll that was required of [plaintiff's representatives] was that\\n\\nthey read the document to ascertain the obvious.\\\"21 Id. As noted\\n\\n\\n21 Fairchild cites to this passage in support of its contention\\nthat AcBel's reliance on the KA7805's unchanged part number was\\nunreasonable, despite the noted difference between the\\ncircumstances faced by the plaintiff in Kuwaiti Danish Computer\\nCo. from those faced by AcBel. As mentioned above, the\\ncircumstances were also significantly different in the other cases\\ncited by Fairchild. See, e.g., Rodi, 532 F.3d at 17 (information\\nthat conflicted with statement on which plaintiff relied regarding\\ndefendant law school's accreditation was contemporaneously\\navailable in the school's catalogue); Liberty Leather Corp. v.\\nCallum, 653 F.2d 694, 696-99 (1st Cir. 1981) (reliance by plaintiff\\non representations by defendant regarding imminence of completion\\nof sale of stock to him was unreasonable given that: (1) three to\\nfour days after representations were made, defendant called the\\nplaintiff to request an increased offer for the stock; and, within\\na maximum of seventeen days after defendant's representations,\\nplaintiff came to knowledge of shareholder's unanimous vote to\\n\\n -37-\\n\\fabove, the supposed conflicting statements in the present case\\n\\nwere not obviously contradictory nor presented within a short\\n\\nperiod of time, much less contemporaneously.\\n\\n Based on the foregoing analysis, we conclude that the\\n\\ndistrict court erred in dismissing AcBel's fraudulent\\n\\nmisrepresentation claim summarily. Because the district court's\\n\\nbasis for dismissal of AcBel's fraudulent omission and negligent\\n\\nmisrepresentation 22 also rested on its erroneous holding that\\n\\nAcBel's reliance on the KA7805's unchanged part number was\\n\\nunreasonable as a matter of law, we conclude that the court erred\\n\\nin dismissing these two claims as well. Accordingly, we vacate\\n\\nthe district court's entry of summary judgment dismissing AcBel's\\n\\n\\n\\n\\nreject his offer).\\n22 Inasmuch as the district court's dismissal of AcBel's negligent\\nmisrepresentation claim is based on AcBel's supposed failure to\\nprovide an affirmative misstatement or presentation of false\\ninformation regarding the design changes made to the KA7805, we\\nhold that the district court erred given that the evaluation of\\nfalsity regarding design changes in the present case's context is\\ndependent on industry custom, which is at issue. See supra at 28-\\n32. The same logic applies to the district court's dismissal of\\nAcBel's fraud by omission and negligent misrepresentation claims\\non the grounds that Fairchild did not have a duty to disclose\\nissues regarding the KA7805's design or that the part was switched\\nback to the large-die version. See Restatement (Second) of Torts\\n§ 551(2)(e) (1977) (providing that duty to disclose may arise out\\nof \\\"the customs of the trade\\\"); see also Greenery Rehab. Grp.,\\nInc. v. Antaramian, 628 N.E.2d 1291, 1294 (Mass. App. Ct. 1994)\\n(recognizing that a duty to disclose arises out of the situations\\ndescribed in § 551).\\n\\n\\n -38-\\n\\ffraud (Count III), fraud by omission (Count IV), and negligent\\n\\nmisrepresentation (Count V) claims, and remand for trial on the\\n\\nmerits.\\n\\nC. Fairchild's Cross-Appeal\\n\\n Because we are remanding for further proceedings below,\\n\\nwe now turn to Fairchild's cross-appeal. Fairchild asks us to\\n\\norder that it be permitted to conduct additional discovery in\\n\\nrelation to documents produced by AcBel after the case's discovery\\n\\ndeadline had elapsed.\\n\\n Weighing the equities and in light of the possibility\\n\\nthat discovery related to issues or leads suggested by the late-\\n\\nproduced documents will lead to evidence relevant to the remanded\\n\\nclaims, we instruct the district court to reopen discovery\\n\\nexclusively for purposes of Fairchild's discovery of evidence\\n\\nstrictly related to AcBel's late-produced documents. See\\n\\nAngioDynamics, Inc. v. Biolitec AG, 780 F.3d 429, 435 (1st Cir.\\n\\n2015); see also Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st Cir.\\n\\n2008) (recognizing that a party's proffer of relevant leads it\\n\\nmight obtain through additional discovery \\\"may be an important\\n\\nfactor in deciding whether to reopen discovery\\\"); Young v. Gordon,\\n\\n330 F.3d 76, 82 (1st Cir. 2003) (implying that a party's failure\\n\\nto meet a case-management deadline should only be to his own\\n\\nperil).\\n\\n\\n -39-\\n\\f III. CONCLUSION\\n\\n For the reasons explained above, we vacate the district\\n\\ncourt's judgment dismissing AcBel's implied warranty of\\n\\nmerchantability (Count I), fraud (Count III), fraudulent omission\\n\\n(Count IV), and negligent misrepresentation (Count V) claims, and\\n\\nremand for further proceedings consistent with this opinion.\\n\\n Vacated and Remanded. Each party shall bear its own\\n\\ncosts.\\n\\n\\n\\n\\n -40-\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4408793/\", \"author_raw\": \"TORRUELLA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"KAYATTA"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4631540/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: AcBel Polytech, Inc. v. Fairchild Semiconductor Int'l\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-20\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNos. 18-1088,\n 18-1121\n\n ACBEL POLYTECH, INC., individually and as\n assignee of EMC CORPORATION,\n\n Plaintiff-Appellant/Cross-Appellee,\n\n v.\n\n FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC.,\n FAIRCHILD SEMICONDUCTOR CORPORATION,\n\n Defendants-Third Party Plaintiffs-Appellees/Cross-Appellants,\n\n SYNNEX ELECTRONICS HONG KONG LTD.,\n SYNNEX TECHNOLOGY INTERNATIONAL CORP.,\n\n Third Party Defendants.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Denise J. Casper, U.S. District Judge]\n\n\n Before\n\n Torruella, Kayatta, and Barron,\n Circuit Judges.\n\n\n Zeb Landsman, with whom Richard Chassin, Jesse Travis Conan,\nand Becker Glynn Muffly Chassin & Hosinski LLP were on brief, for\nappellant/cross-appellee.\n Matthew Iverson, with whom Daniel E. Rosenfeld, Stephen W.\nHassink, Yasmin Ghassab, DLA Piper LLP, Jeffrey A. Rosenfeld, and\nAlston & Bird LLP were on brief, for defendants-third party\nappellees/cross-appellants.\n\fJune 20, 2019\n\n\n\n\n -2-\n\f TORRUELLA, Circuit Judge. We often fail to notice the\n\ncomplex interplay between the numerous components that make up\n\nelectronic equipment. This is a case about one of these components\n\n-- a miniscule microcircuit that serves as a voltage regulator,\n\nthe KA7805ERTM (\"KA7805\").\n\n Defendant-Appellee Fairchild Semiconductor\n\nCorporation's (\"Fairchild US\") subsidiaries manufactured the\n\nKA7805. Plaintiff-Appellant AcBel Polytech, Inc. (\"AcBel\")\n\npurchased KA7805s from Fairchild's agent and installed them into\n\npower supply units (\"PSUs\") it then sold to EMC Corporation\n\n(\"EMC\"). EMC used the PSUs for its data storage devices. In 2010,\n\none of Fairchild US's subsidiaries began to manufacture a new\n\n\"shrunk-die\"1 version of the KA7805 (\"shrunk-die KA7805\"). After\n\nFairchild transitioned to the shrunk-die KA7805, EMC began to\n\nexperience problems with AcBel's PSUs. The shrunk-die KA7805s\n\nwere failing.\n\n AcBel attributed EMC's problems with its PSUs to the\n\ndesign of Fairchild's shrunk-die K8705. As a result, it filed a\n\ndiversity suit against Fairchild US and its holding company,\n\nFairchild Semiconductor International, Inc. (\"Fairchild\n\n\n1 A die is a miniaturized electronic circuit manufactured in, and\non, the surface of a thin substrate of semiconducting material\n(e.g., silicone). The components of voltage regulators, like the\nKA7805, are installed on a die.\n\n\n -3-\n\fInternational\") (collectively, \"Fairchild\"), asserting claims of\n\nbreach of warranty (Counts I, II, XII and XIII); fraud and\n\nnegligent misrepresentation (Counts III, IV and V); \"design defect\n\n-- implied warranty/strict liability\" (Counts VI and XIV); \"design\n\ndefect -- negligence\" (Counts VII and XV); \"failure to warn --\n\nimplied warranty/strict liability\" (Counts VIII and XVI); \"failure\n\nto warn -- negligence\" (Counts IX and XVII); and violation of Mass.\n\nGen. Laws ch. 93A (Counts X and XVIII).2 AcBel asserted all claims\n\non its own behalf and on behalf of EMC, as its assignee, except\n\nfor its fraud and misrepresentation claims (Counts III, IV, and\n\nV).\n\n At the summary judgment stage, the district court\n\ndismissed all claims except those involving breach of implied\n\nwarranty (Counts I, II, XII, and XIII). After a nine-day bench\n\ntrial, the district court dismissed AcBel's remaining breach of\n\nimplied warranty claims. AcBel appeals from the dismissal of its\n\nimplied warranty of merchantability (Count I), fraud (Counts III\n\nand IV) and negligent misrepresentation (Count V) claims.\n\nFairchild cross-appeals, contending that, even if the district\n\n\n\n2 In its complaint, AcBel also presented two claims for punitive\ndamages (Counts XI and XIX), but these were dismissed by the\ndistrict court at the early stages of litigation pursuant to a\nmotion to dismiss filed by Fairchild and are not subject to the\npresent appeal.\n\n\n -4-\n\fcourt's grounds for dismissal were improper, it is still not liable\n\nto AcBel because the district court erred in determining that\n\nFairchild's subsidiaries were its agents for liability purposes.\n\nAdditionally, Fairchild avers in its cross-appeal that, in the\n\nevent of reversal, this court should order discovery regarding\n\ncertain documents produced by AcBel after discovery had closed\n\n(the \"late-produced documents\").\n\n After careful review, we affirm the district court's\n\nfinding of Fairchild's liability for the actions of its\n\nsubsidiaries, vacate the district court's judgment dismissing\n\nAcBel's implied warranty of merchantability, fraud, fraud by\n\nomission, and negligent misrepresentation claims, and remand for\n\nfurther proceedings consistent with this opinion. Because it will\n\nlikely help develop the record for trial on the remanded claims,\n\nwe also grant Fairchild's request for additional discovery in\n\nrelation to the late-produced documents.\n\n I. BACKGROUND\n\n AcBel is a Taiwanese company that manufactures and sells\n\nPSUs, including Katina, a second-generation PSU used by its\n\ncustomer, EMC, in its data storage devices. The Katina PSU was\n\ncustom-made for EMC and specifically required the KA7805 voltage\n\nregulator, which was designed to emit a constant output of voltage,\n\nas one of its approximately 400 components.\n\n\n -5-\n\f Fairchild US is a Delaware corporation. Its wholly-\n\nowned international subsidiaries (the \"Asian subsidiaries\")\n\nmanufactured, assembled, and distributed the KA7805s.\n\nSpecifically, the KA7805s were manufactured by Fairchild Korea\n\nSemiconductor Ltd. (\"FSC Korea\"), assembled by Fairchild\n\nSemiconductor Shuzhou Company, Ltd. (\"FSC Shuzhou\"), and\n\ndistributed by Fairchild Semiconductor PTE, Ltd. (\"FSC Singapore\")\n\nand Fairchild Semiconductor Hong Kong Ltd. (\"FSC Hong Kong\").\n\nAlthough the KA7805 voltage regulators were ultimately utilized in\n\nthe Katina PSU, Fairchild did not manufacture them specifically\n\nfor AcBel.\n\n In 2008, AcBel received a process change notice (\"PCN\")\n\nfrom Synnex,3 a company that had apparent authority to act as\n\nFairchild's agent, notifying it that the KA7805 voltage regulator\n\nwould be redesigned. The new version required that some internal\n\ncomponents be moved to accommodate the smaller die, including a\n\npart known as the zener diode. In January 2010, FSC Korea began\n\nto manufacture the new shrunk-die version of the KA7805. At the\n\nend of the design process, FSC Korea performed industry-standard\n\ntesting on the shrunk-die KA7805, and there were zero failures\n\n\n3 \"Synnex\" refers to Synnex Technology International and Synnex\nElectronics Hong Kong Ltd., third-party defendants that are not\nparties to this appeal. Synnex distributed Fairchild's KA7805\nvoltage regulators.\n\n\n -6-\n\freported.4 Fairchild did not assign a new part number to the\n\nredesigned shrunk-die KA7805.\n\n Despite the shrunk-die KA7805's entry into the market in\n\nearly 2010, its manufacture and shipment was halted sometime in\n\nJuly 2010 when FSC Korea reported a quality incident involving a\n\nproduct that used the same shrunk die. The root cause of the\n\nreported quality incident was not immediately known. Fairchild\n\nUS recommended that FSC Korea permanently cease production of the\n\nshrunk-die version KA7805 and revert to the larger die, which was\n\ndone by week 35 of 2010. No notification of the switch from the\n\nshrunk-die KA7805 model back to the large-die model was provided\n\nto AcBel and Fairchild's other customers.\n\n Meanwhile, AcBel had purchased 195,000 shrunk-die\n\nKA7805s, all of which ended up in the second-generation Katina\n\nPSUs it manufactured for EMC. On or about December 3, 2010, while\n\nFSC Korea was still investigating the quality issue reported in\n\nJuly of that year, AcBel received notice from EMC that thousands\n\nof shrunk-die KA7805s had failed, causing the Katina PSUs in its\n\ndata storage devices to fail as well. Eventually, it was\n\n\n\n\n4 FSC Korea tested the shrunk-die KA7805 in accordance with the\nstandards set by the Joint Electron Device Engineering Council\n(\"JEDEC\"), a body that establishes industry-accepted qualification\nstandards for testing semiconductor reliability.\n\n\n -7-\n\fdetermined that 26,000 PSUs needed to be replaced for EMC\n\ncustomers.\n\n No terms and conditions limiting liability in connection\n\nwith the KA7805 sales were provided to AcBel prior to December\n\n2010. At AcBel's request, a representative from FSC Hong Kong\n\nformed a task force to address the shrunk-die KA7805's failure\n\nissue. On December 22, 2010, Fairchild executed a letter\n\nguaranteeing AcBel that it would revert to the non-shrunk or large-\n\ndie design of the KA7805.\n\n The dispute over the cause of shrunk-die KA7805's\n\nfailures eventually led to the current litigation. AcBel\n\nattributed the part's failures to the shrunk-die model's design,\n\nwhich it claimed made the product defective. During trial,\n\nFairchild's expert testified that a certain sequence of events\n\nmust occur to trigger the shrunk-die KA7805's failure: (1) moisture\n\npenetration; (2) a mechanism for the generation of hydrogen from\n\nmoisture on the die surface; (3) a way for the hydrogen to get\n\nunderneath the silicon nitride at the edge of the die and find its\n\nway to the zener diode; (4) a trigger for the molecular hydrogen\n\nto form atomic hydrogen; and (5) that all of these occurrences\n\nhappen at relatively low temperatures. Evidence demonstrated that\n\nthe failure symptoms could only be duplicated by creating extreme\n\nconditions designed to make devices fail, such as a Highly\n\n\n -8-\n\fAccelerated Stress Test (\"HAST\"), with bias, followed by a Low\n\nTemperature Operating Life test (\"LTOL\"). HAST and LTOL testing\n\nare not part of the JEDEC standards, so standard industry testing\n\nwould not uncover the shrunk-die KA7805's failure systems.\n\nAdditionally, evidence presented at trial suggested that EMC's\n\nproblems with the KA7805s may have resulted from the extreme heat\n\nproduced by AcBel's soldering of the microcircuits to the PSU\n\ncircuit boards.\n\n AcBel's expert, on the other hand, concluded the KA7805s\n\nhad a defective design, and claimed AcBel's soldering process was\n\nwithin industry standards. AcBel's expert believed the new\n\nplacement of the zener diode in the shrunk-die KA7805 made it\n\nsusceptible to moisture exposure, thereby impairing the voltage\n\nregulator's electrical function. The expert, however, could not\n\nidentify the specific mechanism that caused the KA7805s to fail\n\nand did not perform independent testing.\n\n II. DISCUSSION\n\nA. AcBel's Implied Warranty of Merchantability Claim (Count I)\n\n The district court held that Fairchild did not breach\n\nthe KA7805's implied warranty of merchantability. It based its\n\nholding on AcBel's failure to establish that the design defect of\n\nFairchild's shrunk-die KA7805 was foreseeable. AcBel contends\n\nthat the district court's analysis was legally flawed, inasmuch as\n\n\n -9-\n\fit held that AcBel was required to establish that the design defect\n\nof Fairchild's shrunk-die KA7805 was foreseeable in order to\n\nprevail in its implied warranty of merchantability claim. Because\n\nAcBel challenges a legal determination made by the district court\n\nduring the course of the bench trial, our review is de novo.\n\nUnited States v. 15 Bosworth St., 236 F.3d 50, 53 (1st Cir. 2001).\n\n Under Massachusetts law, with certain exceptions not\n\napplicable here, \"a warranty that the goods shall be merchantable\n\nis implied in a contract for their sale if the seller is a merchant\n\nwith respect to goods of that kind.\" Mass. Gen. Laws ch. 106,\n\n§ 2–314(1) (adopted by Massachusetts from the Uniform Commercial\n\nCode (\"UCC\") § 2–314(1)). Thus, manufacturers impliedly warrant\n\nthat their products will be \"fit for the ordinary purposes for\n\nwhich such goods are used.\" Back v. Wickes Corp., 378 N.E.2d 964,\n\n969 (Mass. 1978) (quoting Mass. Gen. Laws ch. 106, § 2–314(2)(C)).\n\nThe cornerstone of the duty of warranty of merchantability \"is the\n\nanticipation of foreseeable uses.\" Cigna Ins. Co. v. Oy Saunatec,\n\nLtd., 241 F.3d 1, 16 (1st Cir. 2001).\n\n In its complaint, AcBel alleged that Fairchild breached\n\nthe implied warranty of merchantability by selling to AcBel\n\ndefective shrunk-die KA7805s that were unfit for their ordinary\n\npurpose. As correctly noted by the district court, for AcBel to\n\nsucceed on its breach of the implied warranty of merchantability\n\n\n -10-\n\fclaim presented on its behalf and on behalf of EMC, it must have\n\ndemonstrated at trial that: (1) Fairchild manufactured or sold the\n\nshrunk-die KA7805s; (2) a defect or unreasonably dangerous\n\ncondition existed that rendered the shrunk-die KA7805s not\n\nsuitable for the ordinary uses for which voltage regulators were\n\nsold; (3) AcBel and EMC were using the shrunk-die KA7805s in a\n\nmanner that Fairchild intended or could have reasonably foreseen;\n\nand (4) the defect or unreasonably dangerous condition was a legal\n\ncause of AcBel's and EMC's injuries. See Provanzano v. MTD Prods.\n\nCo., 215 F. Supp. 3d 134, 138 (D. Mass. 2016) (citing Lally v.\n\nVolkswagen Aktiengesellschaft, 698 N.E.2d 28, 43 (Mass. App. Ct.\n\n1998)).\n\n As to the first prong, Fairchild challenges on appeal\n\nthe district court's determination that it is liable for the acts\n\nof its subsidiaries. Specifically, the district court found that,\n\nbecause Fairchild was so intermingled with the conduct of its\n\nsubsidiaries, they were its agents for liability purposes.5 This\n\nis relevant for our implied warranty of merchantability analysis\n\n\n5 Given that the district court correctly decided this issue, and\npersuasively explained its reasoning in detailed fashion, see\nAcBel Polytech, Inc. v. Fairchild Semiconductor Int'l, Inc., No.\nCV 13-13046-DJC, 2017 WL 6625036, at *9-10 (D. Mass. Dec. 27,\n2017), we see no reason to write at length to place our seal of\napproval on its decision. See In re Fin. Oversight & Mgmt. Bd.\nfor P.R., No. 18-1165, 2019 WL 1349223, at *3 n.6 (1st Cir.\nMar. 26, 2019).\n\n\n -11-\n\fbecause the shrunk-die KA7805s were manufactured by FSC Korea and\n\nsold to AcBel by Synnex, which acted as FSC Hong Kong's agent.6\n\nThus, if Fairchild is not liable for its subsidiaries' actions,\n\nAcBel is unable to meet the first element of this implied warranty\n\nof merchantability inquiry. See Provanzano, 215 F. Supp. 3d at\n\n138.\n\n Fairchild accepts the district court's factual findings\n\nregarding its relationship with its Asian subsidiaries, but on\n\nappeal makes three strictly legal arguments in support of its\n\ncontention that the district court improperly held it liable for\n\nits subsidiaries' conduct.\n\n First, Fairchild sustains that the district court based\n\nits agency determination on the \"pervasive control\" theory but did\n\nnot make the requisite finding that Fairchild also used the\n\ncorporate form to engage in improper conduct. Fairchild contends\n\nthat the absence of improper conduct is dispositive because\n\n\"control, even pervasive control, without more, is not a sufficient\n\nbasis for a court to ignore corporate formalities . . . without a\n\nshowing of improper conduct.\" (quoting Scott v. NG U.S. 1, Inc.,\n\n881 N.E.2d 1125, 1132 (Mass. 2008)).\n\n Second, Fairchild argues that, even in the absence of\n\n\n6 Fairchild does not challenge the FSC Hong Kong-Synnex agency\nrelationship.\n\n\n -12-\n\fimproper conduct, the district court's agency determination was\n\nerroneous because the facts it found do not establish its pervasive\n\ncontrol over its subsidiaries, as required to create liability.\n\n And third, Fairchild asserts it would not be liable for\n\nthe Asian subsidiaries' conduct under the apparent manufacturer\n\ndoctrine, as suggested by the district court in dicta, because for\n\nthe doctrine to apply, Fairchild must have \"participate[d]\n\nsubstantially in the design, manufacture, or distribution of the\n\n[KA7805s]\" and the district court made no finding to such effect.\n\n(quoting Lou v. Otis Elevator Co., 933 N.E.2d 140, 148 (Mass. App.\n\nCt. 2010)).\n\n We are not persuaded. A simple reading of the district\n\ncourt's judgment reveals that its decision was made on the basis\n\nof an agency theory, not a pervasive control theory, despite its\n\nciting of cases addressing the piercing of the corporate veil in\n\nsupport of its agency conclusion. See AcBel Polytech, 2017 WL\n\n6625036, at *9-10. The district court cited those cases to\n\nhighlight the level of control FSC had over its subsidiaries. Id.\n\nFairchild's level of control over its subsidiaries is not exclusive\n\nof agency but rather supportive of the district court's finding\n\nthat such relationship exists. Id. (citing RFF Family P'ship, LP\n\nv. Link Dev., LLC, 907 F. Supp. 2d 155, 161 (D. Mass. 2012) (\"An\n\nagency relationship is created when there is mutual consent,\n\n\n -13-\n\fexpress or implied, that the agent is authorized to act on behalf\n\nand for the benefit of the principal, subject to the principal's\n\ncontrol.\" (emphasis added))).\n\n Moreover, the intermingling between two entities can\n\nalso provide an independent basis for the conclusion that an agency\n\nrelationship existed. To this point, in My Bread Baking Co. v.\n\nCumberland Farms, Inc., the Supreme Judicial Court of\n\nMassachusetts (\"SJC\") held that:\n\n Although common ownership of the stock of two or more\n corporations together with common management,\n standing alone, will not give rise to liability on\n the part of one corporation for the acts of another\n corporation or its employees, additional facts may be\n such as to permit the conclusion that an agency or\n similar relationship exists between the entities.\n Particularly is this true (a) when there is active\n and direct participation by the representatives of\n one corporation, apparently exercising some form of\n pervasive control, in the activities of another and\n there is some fraudulent or injurious consequence of\n the intercorporate relationship, or (b) when there is\n a confused intermingling of activity of two or more\n corporations engaged in a common enterprise with\n substantial disregard of the separate nature of the\n corporate entities . . . .\n\n233 N.E.2d 748, 751-52 (Mass. 1968) (emphasis added).\n\n Based on the foregoing and the fact that Fairchild\n\naccepts the district court's factual findings, which reveal the\n\nhigh degree of control Fairchild actually exercised over its\n\nsubsidiaries, we cannot find any error in the district court's\n\ndetermination that an agency relationship existed between\n\n\n -14-\n\fFairchild and its Asian subsidiaries. The district court was not\n\nrequired to make any additional findings, as Fairchild contends,\n\nto impose liability. Accordingly, we conclude that AcBel met the\n\nfirst element of the implied warranty of merchantability test by\n\nestablishing that, for purposes of liability, Fairchild\n\nmanufactured and sold the shrunk-die KA7805s.\n\n The second element of the test required AcBel to show\n\nthat the shrunk-die KA7805 had a defect or unreasonably dangerous\n\ncondition7 that made it unsuitable for its ordinary use, while the\n\nthird element required AcBel to show it was, along with EMC, using\n\nthe shrunk-die KA7805s in a manner that Fairchild intended or could\n\nhave reasonably foreseen. Here, things start to get complicated.\n\nThe district court conflated its analysis of these two elements.\n\nThus, the specific basis for its conclusion that Fairchild did not\n\nviolate the shrunk-die KA7805's implied warranty of\n\nmerchantability is not completely clear. What is clear, however,\n\n\n\n7 In the context of the present case, where no person was\nphysically injured, we interpret \"dangerous condition\" to mean a\ncondition that presents a danger of injury to the product itself\n-- the shrunk-die KA7805 -- and thus to its fitness for its\nordinary purposes. See generally East River Steamship Corp. v.\nTransamerica Delaval, Inc., 476 U.S. 858, 871-72 (1986)\n(explaining, in the context of interpreting UCC § 2-314, that\n\"[d]amage to a product itself is most naturally understood as a\nwarranty claim\"); see also Mass. Gen. Laws ch. 106, § 2-314\n(adopting UCC § 2-314 for purposes of Massachusetts implied\nwarranty claims).\n\n\n -15-\n\fis that the district court relied on a tort-based design defect\n\ntheory and, in doing so, erroneously added an inapplicable\n\n\"foreseeability by reasonable testing requirement\" to AcBel's\n\ncontract-based implied warranty of merchantability claim.\n\n After recounting the correct four-element test for an\n\nimplied warranty of merchantability claim, the district court\n\ncited to Town of Westport v. Monsanto Co., a tort case involving\n\na dangerous product,8 in support of its conclusion that Fairchild\n\ndid not breach the implied warranty of merchantability. AcBel\n\nPolytech, 2017 WL 6625036, at *12 (citing Town of Westport,\n\nNo. 14 -cv-12041, 2017 WL 1347671, at *4 (D. Mass. Apr. 7, 2017),\n\naff'd, 877 F.3d 58 (1st Cir. 2017)). Specifically, the district\n\ncourt held that \"[a] manufacturer may only be held liable for a\n\ndefective design if it fails to design against the reasonably\n\nforeseeable risks attending the product's use in that setting.\"\n\nId. (quoting Town of Westport, 2017 WL 1347671, at *4 (internal\n\ncitations and quotations omitted)). The court explained that\n\n\"[t]he expert testimony and other evidence concerning the design\n\nand testing of the shrunk-die KA7805 shows that, to the extent\n\n\n\n8 Specifically, in Town of Westport, plaintiffs filed suit\nalleging tort liability against the manufacturer of a dangerous\nproduct, polychlorinated biphenyls (\"PCBs\") -- chemicals that are\nhazardous above certain concentrations. See Town of Westport v.\nMonsanto Co., 877 F.3d 58, 61-62 (1st Cir. 2017).\n\n\n -16-\n\fmoving the zener diode was a risk, there was no reasonably\n\nforeseeable risk in its design\" and, furthermore, that \"[d]espite\n\nthe shrunk-die KA7805's rate of failure . . . AcBel failed to show\n\nthat any reasonable testing regimen would have revealed any such\n\ndefect.\" Id.9\n\n The district court also seems to have focused on the\n\nshrunk-die KA7805's testing for purposes of its analysis of the\n\nsecond element of the implied warranty of merchantability test.\n\nAfter noting that Fairchild and its subsidiaries tested the shrunk-\n\ndie KA7805 in accordance with industry standards10 but could only\n\nrecreate its failure by running non-industry standard consecutive\n\nHAST and LTOL tests, the court held that \"even with the benefit of\n\nexpert testimony, AcBel did not show that the shrunk-die [KA7805]\n\nwas defective or had an unreasonably dangerous condition.\" Id.\n\nDoubling down on its focus on testing, the district court finalized\n\nits implied warranty of merchantability analysis relying on\n\nVassallo v. Baxter Healthcare Corp., 696 N.E.2d 909 (Mass. 1998),\n\n\n\n\n9 Because these expressions address foreseeability, albeit\nincorrectly, we read them to be related to the district court's\nanalysis of the third element of the implied warranty of\nmerchantability test, which will be discussed in turn.\n10 As mentioned above, supra n.4, JEDEC establishes industry-\naccepted standards for assessing reliability in the semiconductor\ncomponent industry.\n\n\n -17-\n\fanother tort case involving a dangerous product. 11 The court\n\nconcluded that \"[a]pplying 'the standard of knowledge of an expert\n\nin the appropriate field,' [Fairchild] 'could not have []\n\ndiscovered by way of reasonable testing' [the shrunk-die KA7805's]\n\nrisk of failure under the[] extreme circumstances\" created by\n\nconsecutively running the HAST and LTOL tests. AcBel Polytech,\n\n2017 WL 6625036, at *12 (quoting Vassallo, 696 N.E.2d at 923) (some\n\nalterations in the original).\n\n The link between a reasonable testing regime, which\n\ngenerally goes towards foreseeability, see Vassallo, 696 N.E.2d at\n\n923 (applying the reasonable testing standard in the context of a\n\nfailure to warn or provide instructions about risks context), and\n\nthe district court's conclusion that the KA7805 was not defective\n\nor had an unreasonably dangerous condition is not totally clear.\n\nNotwithstanding, because this conclusion was only supported by an\n\ninapplicable tort-based theory, we need not unravel this mystery\n\nto conclude that the district court erred.\n\n By considering foreseeability by reasonable testing for\n\nits analysis of the second and third elements of the implied\n\n\n11 In Vassallo, the plaintiff sued the successor of a company that\nmanufactured silicone breast implants she had implanted in her,\nclaiming that they were negligently designed, accompanied by\nnegligent product warnings, and breached the implied warranty of\nmerchantability, with the consequence of causing injuries to her\nperson. 696 N.E.2d at 912.\n\n\n -18-\n\fwarranty of merchantability test, the district court improperly\n\ncommingled contract-based and tort-based theories of implied\n\nwarranty. See Rule v. Fort Dodge Animal Health, Inc., 607 F.3d\n\n250, 252 (1st Cir. 2010) (warning that \"[g]eneraliz[ations] about\n\nwarranty law should be [made] with care; there are variations in\n\nstate law, changes over time, modification by statutes like the\n\nUniform Commercial Code, [and] a mingling of tort and contract\n\nconcepts\"). When economic loss is the only injury that is claimed,\n\nrecovery for breach of an implied warranty should be construed as\n\ncontract-based, not tort-based, under Massachusetts law. Jacobs\n\nv. Yamaha Motor Corp., U.S.A., 649 N.E.2d 758, 762 (Mass. 1995)\n\n(recognizing a contract-based warranty claim \"to recover against\n\na manufacturer or remote seller for breach of warranty causing\n\ndamage other than personal injury\"); Bay State-Spray &\n\nProvincetown S.S., Inc. v. Caterpillar Tractor Co., 533 N.E.2d\n\n1350, 1352 (Mass. 1989). We have made the same distinction, see\n\nWilson v. Hammer Holdings, Inc., 850 F.2d 3, 7-8 (1st Cir. 1988)\n\n(noting a difference between \"products liability actions\" and\n\n\"contractually based warranty claims\"), and the Supreme Court has\n\nsaid as much in the context of an admiralty case, see East River\n\nSteamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871-\n\n75 (1986) (\"When a product injures only itself the reasons for\n\nimposing a tort duty are weak and those for leaving the party to\n\n\n -19-\n\fits contractual remedies are strong.\"); see also 18 Williston on\n\nContracts § 52:67 (4th ed.) (\"An implied warranty may be breached\n\nwhether or not the seller is aware of a defect in the goods\n\n. . . .\").\n\n Because the injury here was to the shrunk-die\n\nKA7805s -- the product itself -- it sounds in contract, not tort.\n\nAs a result, the reasonableness of the testing of the shrunk-die\n\nKA7805 was inconsequential. Instead, the district court's\n\nanalysis should have been circumscribed to the foreseeability of\n\nthe shrunk-die KA7805's use. See Mass. Gen. Laws ch. 106, § 2-\n\n314(2)(c) (\"Goods to be merchantable must at least be . . . fit\n\nfor the ordinary purposes for which such goods are used . . . .\");\n\nsee also Cigna Ins. Co., 241 F.3d at 16.\n\n Thus, to conduct the proper contractual implied warranty\n\nof merchantability inquiry, we must turn to the question of whether\n\nAcBel's use of the shrunk-die KA7805's was foreseeable. The\n\nshrunk-die KA7805's functionality was contingent on it being\n\nsoldered into a circuit board, as AcBel did to install the KA7805s\n\nonto its PSUs. The act of soldering the KA7805 into a circuit\n\nimplicates exposure to high heat. Furthermore, the tests employed\n\nby Fairchild to verify the KA7805's reliability in accordance with\n\nthe industry standard and later to determine its failure mechanism\n\n\n\n\n -20-\n\fall involved exposure to high heat.12 Finally, testimony at trial\n\nrevealed that Fairchild was aware of the multiple uses given to\n\nthe shrunk-die KA7805. Fairchild US's vice-president, Eric Hertz,\n\ndescribed the KA7805 as a \"jelly bean product\" -- \"a product that\n\n. . . is sold to a lot of different customers[] [for] a lot of\n\ndifferent applications.\" Taking these facts into account, we\n\ncannot conclude that AcBel was unable to meet the implied warranty\n\nof merchantability test's burden of establishing that its use of\n\nthe shrunk-die KA7805 was foreseeable.\n\n Our inquiry, however, does not end here. Even assuming\n\nthat its use of the shrunk-die KA7805s was foreseeable, AcBel was\n\nstill required to meet the fourth and last element of the implied\n\nwarranty of merchantability test: establishing that a defect or\n\nunreasonably dangerous condition of the shrunk-die KA7805\n\nconstituted the legal cause of the injuries sustained by itself\n\nand EMC. See Provanzano, 215 F. Supp. 3d at 138. The district\n\ncourt found that the root cause of the failures experienced by EMC\n\nwith the shrunk-die KA7805 was the sequence of events recreated by\n\nrunning the HAST, with bias, followed by a LTOL, but that is of\n\nlittle help to establish legal or proximate causation. 13 See\n\n\n12 These tests exposed the shrunk-die KA7805 to temperatures as\nhigh as 150 degrees Celsius. For context, water's boiling point\nis 100 degrees Celsius.\n13 The terms \"legal cause\" and \"proximate cause\" are\n\n -21-\n\fRestatement (Second) of Torts § 9 cmt. a (Am. Law. Ins. 1965)\n\n(establishing that legal causation traces liability to a person).\n\nLegal cause must be sufficient to result in liability. Restatement\n\n(Second) of Torts § 9 (Am. Law. Ins. 1965). Be it the result of\n\nan act or omission, legal causation leads to a consequence for\n\nwhich liability may be imposed on a party. Id.\n\n Given its finding on foreseeability, the district court\n\nhad no need to reach a finding on legal causation. The evidence\n\non this issue was conflicting. As the district court observed,\n\nthe problems EMC experienced with the shrunk-die KA7805s may have\n\noriginated when AcBel soldered them to its PSU circuit boards14 and\n\nother users reported a rate of 0.012%, while AcBel reported a\n\nfailure rate of 7.5% for the same relevant time period (third and\n\nfourth quarters of 2010).15 In conflict with these observations,\n\n\n\ninterchangeable. See CSX Transp., Inc. v. McBride, 564 U.S. 685,\n701 (2011); Cause, Black's Law Dictionary (10th ed. 2014).\n14 Specifically, the district court found that \"the problem with\nthe shrunk-die KA7805 may have resulted from delamination caused\nby extreme heat during AcBel's wave soldering process.\" AcBel\nPolytech, 2017 WL 6625036, at *8. In further support of this\nconclusion, it noted that \"[d]elamination was not present when the\nKA7805s were originally shipped [by Fairchild]. It occurred when\nthe KA7805s were in the care of AcBel.\" Id.\n15 Furthermore, our own review of the record reveals that AcBel's\ninternal documents reflect that 80% of its employees, including\nengineers, failed their soldering skill performance examinations\nin 2008. This, considered in tandem with EMC's heightened failure\nrates in comparison with other sources, raises serious questions\nas to whether AcBel's soldering practices caused the KA7805\n\n -22-\n\fthe court also noted -- without making any statements as to\n\ncredibility -- that AcBel's expert testified that AcBel's\n\nsoldering process was within industry standards.\n\n The inconclusive nature of the district court's findings\n\ncoupled with the absence of a causation analysis -- considered in\n\nconjunction with its application of an erred foreseeability\n\nanalysis -- counsels us against making a final determination as to\n\nwhether Fairchild actually breached the shrunk-die KA7805's\n\nwarranty of merchantability. With the benefit of the guidance set\n\nout above as to the proper inquiry to be performed in adjudicating\n\na contract-based implied warranty of merchantability claim, we\n\nbelieve the district court is in an improved position to evaluate\n\nthe parties' arguments and evidence in this all but simple case.\n\nAccordingly, we vacate the district court's dismissal of AcBel's\n\nimplied warranty of merchantability claim and remand for trial\n\nwhere the district court shall determine: whether the shrunk-die\n\nKA7805 had a defect or unreasonably dangerous condition that\n\nrendered it not suitable for the ordinary use for which it was\n\nsold; whether AcBel and EMC were using the shrunk-die KA7805 in a\n\nmanner that Fairchild intended or could have reasonably foreseen;\n\nand whether a defect or unreasonably defective condition of the\n\n\n\n\nfailures.\n\n\n -23-\n\fshrunk-die KA 7805 constituted the legal cause of AcBel's and EMC's\n\ninjury.16\n\nB. AcBel's Fraud and Misrepresentation Claims (Counts III, IV,\n and V)\n\n AcBel also challenges the district court's entry of\n\nsummary judgment dismissing its fraud (Count III), fraud by\n\nomission (Count IV), and negligent misrepresentation (Count V)\n\nclaims. Our review is de novo. See Scholz v. Goudreau, 901 F.3d\n\n37, 44 (1st Cir. 2018). \"In so reviewing, we must 'tak[e] the\n\nfacts and all reasonable inferences therefrom in the light most\n\nfavorable to [the non-moving party],\" in this case AcBel. Id.\n\n(quoting Aponte-Rosario v. Acevedo-Vilá, 617 F.3d 1, 6 (1st Cir.\n\n2010)). We will affirm a district court's grant of summary\n\njudgment only \"when there is no genuine dispute as to any material\n\nfact and the movant is entitled to judgment as a matter of law.\"\n\nRivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 (1st Cir.\n\n2018) (citation and internal quotation marks omitted).\n\n The core of AcBel's fraud and negligent\n\nmisrepresentation claims rests on the following factual\n\nallegation: despite being required by industry custom, Fairchild\n\n\n16 We assume, without concluding, that as part of trial proceedings\nthe district court will also have to evaluate the misuse,\nunreasonable use, and unforeseeable use defenses raised by\nFairchild. See generally Cigna Ins. Co., 241 F.3d at 14-19; Allen\nv. Chance Mfg. Co., 494 N.E.2d 1324 (Mass. 1986).\n\n\n -24-\n\fdid not notify AcBel that it abandoned the shrunk-die KA7805 and\n\nreverted back to the large-die model in week 35 of 2010, either\n\nthrough a change in part number or issuance of a PCN. The district\n\ncourt based its dismissal of all three of AcBel's fraud and\n\nmisrepresentation claims primarily on its conclusion that AcBel's\n\nreliance on Fairchild's failure to change the KA7805's part number\n\nwhen the part was switched from the large-die to the shrunk-die\n\nmodel was, as a matter of law, unreasonable. We disagree and\n\ntherefore vacate the district court's dismissal of AcBel's fraud\n\nand misrepresentation claims and remand for adjudication of these\n\nclaims at trial. For clarity, we discuss each of AcBel's fraud\n\nand misrepresentation claims in turn.\n\n Under Massachusetts law, to recover on fraudulent\n\nmisrepresentation claims, a plaintiff must establish that\n\ndefendants: (1) \" made a false representation of material fact\";\n\n(2) \"with knowledge of its falsity\"; (3) \"for the purpose of\n\ninducing the plaintiff[] to act on this representation\"; (4) \"that\n\nthe plaintiff[] reasonably relied on the representation as true\";\n\nand (5) \"that [the plaintiff] acted upon it to their damage.\"\n\nCumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 918 N.E.2d\n\n36, 47 (Mass. 2009) (emphasis added); see also Rodi v. S. New\n\nEngland Sch. of Law, 532 F.3d 11, 15 (1st Cir. 2008) (pursuant to\n\nMassachusetts law, reliance upon the alleged misstatement must be\n\n\n -25-\n\f\"reasonable under the circumstances\").\n\n The standard for a fraudulent omission claim retains the\n\nabove-cited elements but the \"false representation\" element takes\n\nthe form of an omission. See Sahin v. Sahin, 758 N.E.2d 132, 138\n\nn.9 (Mass. 2001). Additionally, to establish a fraud by omission\n\nclaim, a plaintiff must establish defendants' \"concealment of\n\nmaterial information\" and \"duty requiring disclosure.\" Id.\n\n The standard for a negligent misrepresentation claim,\n\nhowever, differs to a larger extent. \"Unlike fraud, negligent\n\nmisrepresentation does not require an intent to deceive or actual\n\nknowledge that a statement is false.\" Cumis Ins. Soc'y, 918 N.E.2d\n\nat 47. To succeed on a negligent misrepresentation claim, a\n\nplaintiff must establish that:\n\n [T]he defendants, \"in the course of [their] business,\n profession or employment, or in any other transaction\n in which [they had] a pecuniary interest, suppli[ed]\n false information for the guidance of others in their\n business transactions\" without exercising \"reasonable\n care or competence in obtaining or communicating the\n information,\" that those others justifiably relied on\n the information, and that they suffered pecuniary loss\n caused by their justifiable reliance upon the\n information.\n\nId. at 47-48 (citation omitted) (some alterations in original)\n\n(emphasis added).\n\n As may be noted, and most importantly for purposes of\n\nour current analysis, all three of AcBel's fraud and\n\nmisrepresentation claims have a reliance requirement.\n\n -26-\n\f The district court addressed two elements of AcBel's\n\nfraud claims: Fairchild's alleged false representation and\n\nomission, and AcBel's reasonable reliance on the alleged\n\nmisrepresentation and omission. Its decision to grant summary\n\njudgment in favor of Fairchild, however, rested exclusively on the\n\nlatter.17\n\n As to the first switch from the large-die to shrunk-die\n\nmodel, the district court found that Fairchild did not make a\n\nmisrepresentation by failing to change the KA7805's part number\n\nbecause, in 2008, it provided AcBel \"adequate notice of the design\n\nchange\" through the delivery of a PCN.18 The PCN described the\n\nchanges that were going to be made to the KA7805 and stated that\n\nthe first shipment of shrunk-die model was expected to take place\n\nin approximately three months. As to the switch back to the large-\n\ndie model in week 35 of 2010, the district court concluded that,\n\n\n17 A finding of a misrepresentation hinges on whether Fairchild\nhad an obligation to change the KA7805's part number when it\nswitched the microcircuit from the large-die to the shrunk-die\nmodel. Because the parties dispute the requirement of a change in\npart number, this raises an issue of material fact. Specifically,\nAcBel contends that industry custom and standards required\nFairchild to add a suffix to the part number, while Fairchild\nsustains that no change was required. Notwithstanding, for\npurposes of its summary judgment disposition, the district court\nassumed the change was required and rested its conclusion on the\nsupposed unreasonableness of AcBel's reliance on the KA7805's part\nnumber.\n18 The PCN was delivered to AcBel by Fairchild's agent, Synnex.\n\n\n -27-\n\finasmuch as \"the [KA7805s] were returned to their original\n\ndesign[,] . . . labeling them with the original part number was\n\nnot a false statement even under AcBel's representation of the\n\nindustry custom.\" Accordingly, it held that Fairchild's \"failure\n\nto change the part number when 'the second change' was made [did]\n\nnot amount to a misrepresentation.\"\n\n Whether Fairchild's continued use of the same part\n\nnumber for the shrunk-die KA7805 constituted a misrepresentation\n\nis contingent on whether industry norm required a change -- an\n\nissue of material fact. On review, we must presume as much. See\n\nScholz, 901 F.3d at 44. Assuming that the change was required, as\n\nwe must, the district court's position in granting summary judgment\n\nthat Fairchild's failure to change the KA7805's part number was\n\nsomehow cured as a matter of law by the PCN in 2008, and then by\n\nthe reassignment of the unchanged part number back to the large-\n\ndie version in 2010, is unavailing. While it is true that Fairchild\n\nsent a PCN informing AcBel that a switch to a new shrunk-die model\n\nwas going to take place, nowhere in the PCN does Fairchild affirm\n\nor deny that a new part number was going to be assigned. Under\n\nthese circumstances was it not safe for AcBel to assume, at some\n\npoint, that the shrunk-die model retained the large-die model's\n\npart number, despite this being contrary to the usual practice\n\nunder industry custom? In such case, would changing the KA7805\n\n\n -28-\n\fback to a large-die design without informing such change not\n\nconstitute a misrepresentation given that its original part number\n\nnow constituted the shrunk-die's part number? We view these\n\nquestions as too dependent on the idiosyncrasies of industry norms\n\nto be addressed with the record available to the district court at\n\nsummary judgment.\n\n Furthermore, the extent to which the PCN could have cured\n\nFairchild's failure to change the part number when switching to\n\nthe shrunk-die model is in itself an issue of material fact better\n\nleft for trial. Likewise, whether Fairchild was required to issue\n\na PCN in 2010 when switching back to the large-die model in 2010,\n\nas AcBel alleges was required by industry norm, is also an issue\n\nof material fact better left for trial.\n\n That the KA7805's part number, after week 35 of 2010,\n\nonce again coincided with the large-die model to which it was\n\noriginally assigned does not preclude the existence of an\n\naffirmative misrepresentation. The thrust of AcBel's affirmative\n\nmisrepresentation claim lies in that, by keeping the same part\n\nnumber for both the large-die and shrunk-die models, Fairchild\n\nmisrepresented that the part had not undergone a material change.\n\nThe factfinder could certainly find that a highly unusual switch\n\nback to the large-die model, which would have put AcBel on notice\n\nregarding issues with the shrunk-die model, is a material change.\n\n\n -29-\n\f In any case, we now turn to what we read as the district\n\ncourt's primary basis for dismissing AcBel's fraud and\n\nmisrepresentation claims, regardless of whether Fairchild's\n\nfailure to change the part number constituted a misrepresentation\n\n-- AcBel's allegedly unreasonable reliance on the unchanged part\n\nnumber.\n\n In regard to AcBel's reliance on the unchanged part\n\nnumber, the district court held that, even assuming that the\n\nunchanged part number constituted a misrepresentation, AcBel's\n\nreliance upon it was unreasonable as a matter of law because the\n\nPCN placed AcBel on notice that the KA7805 was being switched to\n\nthe shrunk-die model. For the district court, the PCN and the\n\nunchanged part number (to the extent that it represented that the\n\nKA7805 had not been altered) constituted \"conflicting statements\"\n\nthat \"engender[ed] doubt\" and thus rendered AcBel's reliance on\n\nthe part number unreasonable as a matter of law. Along the same\n\nvein, the court considered that AcBel's reliance was unreasonable\n\nbecause, at the very least, these \"conflicting statements\"\n\ntriggered AcBel's duty to inquire as to whether \"the information\n\nin the PCN was nullified by the allegedly unchanged part number,\"\n\nwhich the record reflects AcBel did not do. AcBel Polytech, Inc.\n\nv. Fairchild Semiconductor Int'l, Inc., No. CV 13-13046-DJC, 2016\n\nWL 7197368, at *12 (D. Mass. Dec. 9, 2016).\n\n\n -30-\n\f In order to establish a claim for fraud, reliance upon\n\nthe alleged misstatement must be \"reasonable under the\n\ncircumstances.\" Rodi, 532 F.3d at 15. While \"[a] party may\n\njustifiably rely on a misrepresentation even if he could have\n\nascertained its falsity by conducting an investigation,\"\n\nmisrepresentations that could be discovered by a \"cursory glance,\"\n\nand are known to be false or obviously false, may not be relied\n\nupon. Sanford Inst. for Sav. v. Gallo, 156 F.3d 71, 74-75 (1st\n\nCir. 1998).19 As the SJC has explained, a plaintiff may not rely\n\n\"on a representation that [is] either preposterous or palpably\n\nfalse.\" Yorke v. Taylor, 124 N.E.2d 912, 916 (Mass. 1955); see\n\nalso Damon v. Sun Co., Inc., 87 F.3d 1467, 1480 (1st Cir. 1996)\n\n(\"Only reliance on 'preposterous or palpably false'\n\nrepresentations vitiates a misrepresentation claim.\" (citation\n\nomitted)). \"[I]f a mere cursory glance would have disclosed the\n\nfalsity of the representation, its falsity is regarded as obvious\n\n. . . .\" Kuwaiti Danish Comput. Co. v. Dig. Equip. Corp., 781\n\nN.E.2d 787, 795 (Mass. 2003). Accordingly, if the plaintiff could\n\n\n\n19 Although Sanford is a bankruptcy case, the cited expressions\nregarding reasonable reliance are guided by the same common law\nconcepts adopted by Massachusetts law. Compare Sanford, 156 F.3d\nat 74-76 (citing Restatement (Second) of Torts §§ 540, 541 cmt. a\n(1976)) with Kuwaiti Danish Comput. Co. v. Dig. Equip. Corp., 781\nN.E.2d 787, 795 (Mass. 2003) (citing Restatement (Second) of Torts\n§§ 540, 541).\n\n\n -31-\n\fhave discovered the falsity of the defendant's representation, but\n\nfailed to do so, plaintiff's reliance is reasonable unless there\n\nwere \"any warning signs . . . either in the documents, in the\n\nnature of [a] transaction, or in [defendant's] conduct or\n\nstatements.\" Sanford, 156 F.3d at 75 (quoting Restatement (Second)\n\nof Torts § 540, cmt. a (1977)); see also Kenda Corp., Inc. v. Pot\n\nO'Gold Money Leagues, Inc., 329 F.3d 216, 227 (1st Cir. 2003)\n\n(\"Certainly where a defendant has willfully made false\n\nrepresentations with intent to deceive he ought not to be relieved\n\nof liability because of his victim's lack of diligence.\" (quoting\n\nYorke, 124 N.E.2d at 916)).\n\n Clearly conflicting statements, however, \"should [place]\n\npetitioner on notice that he should not rely on either statement.\n\nConfronted by such a conflict a reasonable person investigates\n\nmatters further; he receives assurances or clarification before\n\nrelying.\" Trifiro v. N.Y. Life Ins. Co., 845 F.2d 30, 33 (1st\n\nCir. 1988). \"Explicit conflict engenders doubt, and to rely on a\n\nstatement the veracity of which one should doubt is unreasonable.\"\n\nId. at 34 (emphasis added).\n\n The conflicting information that the district court\n\nfound triggered AcBel's duty to inquire -- or otherwise make its\n\nreliance on either piece of information unreasonable -- was the\n\ncontent of the Fairchild's 2008 PCN and the unchanged part number\n\n\n -32-\n\fin the KA7805's label. The PCN represented that the KA7805 was\n\nundergoing a design change. The unchanged part number, on the\n\nother hand, could be perceived to represent that no change was\n\nmade to the KA7805's design following the delivery of the PCN. In\n\nlight of the fact that the PCN did not provide a specific date for\n\nthe shipment of shrunk-die KA7805s, we cannot agree that there was\n\nno issue of material fact regarding the existence of a conflict\n\nbetween the representations, much less as to the existence of an\n\n\"[e]xplicit conflict\" that \"engender[ed] doubt\" and thus triggered\n\nAcBel's duty to inquire. Id. Given the uncertainty as to shipment\n\ndate reflected in the PCN, and the lack of temporal proximity\n\nbetween the delivery of the PCN and the actual commencement of\n\nshipment of shrunk-die KA7805s to AcBel -- approximately one year\n\nand nine months later -- we conclude that the issues of AcBel's\n\nreasonable reliance (in general) and the existence of a conflict\n\nin information that triggered AcBel's duty to inquire (more\n\nspecifically) would be more properly addressed at trial.20 See\n\nMarram v. Kobrick Offshore Fund, Ltd., 809 N.E.2d 1017, 1031 (Mass.\n\n\n\n20 The district court did not address AcBel's reliance on the\nunchanged part number in relation to Fairchild's switch back to\nthe large-die model in week 35 of 2010, but rather only as to the\nfirst switch to the shrunk-die in week 1 of 2010. Fairchild's\nfailure to differentiate between the two models based on part\nnumber permitted it to revert to the large-die model without\nexplicitly revealing that this change had been made.\n\n\n -33-\n\f2004).\n\n By the same token, we cannot agree that AcBel's reliance\n\non the unchanged part number was unreasonable as a matter of law.\n\nA court's reasonable reliance analysis is based on the\n\ncircumstances of the alleged reliance on a representation. Rodi,\n\n532 F.3d at 15. The circumstances in the present case are clearly\n\ndistinguishable from those presented in the cases cited by\n\nFairchild, as well as other we have located, where the First\n\nCircuit or Massachusetts courts have found a plaintiff's reliance\n\nunreasonable due to the existence of conflicting information.\n\n For example, in Trifiro, cited approvingly by the\n\ndistrict court, the plaintiff claimed that he reasonably relied on\n\na statement made by defendant's officer as to the formation of a\n\ncontract which was directly contradicted by a letter sent by\n\ndefendant shortly thereafter. 845 F.2d at 33. Specifically,\n\nduring an initial conversation, defendant's officer expressed to\n\nplaintiff's agent that, despite his employer having a committee\n\napproval requirement, the transaction proposed by plaintiff \"would\n\nbe a small deal for [defendant] and . . . committee approval would\n\nbe a mere formality.\" Id. Notwithstanding, a mere two days to a\n\nweek later, the defendant sent the plaintiff a letter explicitly\n\nstating that \"approval of any proposal would be at the sole\n\ndiscretion of the appropriate committee or authority\" and,\n\n\n -34-\n\ffurthermore, requesting that plaintiff \"acknowledge [his]\n\nunderstanding of . . . [the requirement of committee approval] by\n\nsigning and dating the enclosed copy of th[e] letter.\" Id. (some\n\nalterations in the original). Plaintiff signed the letter but,\n\nnonetheless, later asked this court to \"hold that he acted\n\nreasonably in relying on the earlier oral statement made to [his\n\nagent] that committee approval would be a mere formality.\" Id.\n\nWe rejected the plaintiff's request holding that \"[w]hen a person\n\nacts in a way contrary to his own acknowledged understanding of\n\nthe facts, his acts must be deemed unreasonable as a matter of\n\nlaw,\" and, furthermore, that the circumstances rendered the\n\nplaintiff's reliance unreasonable because he was the recipient of\n\nexplicitly conflicting information -- one statement that approval\n\nof his proposal was certain versus a second representing that it\n\nwas uncertain. Id.\n\n These cases are very fact-dependent. Nevertheless, the\n\ncircumstances in the present case lead us to conclude that the\n\nquestion of whether AcBel's reliance on the unchanged part number\n\nwas reasonable is an issue of fact. First, while it is true that\n\nAcBel admitted it received the PCN informing that Fairchild would\n\nswitch to a small-die model, nowhere in the PCN did Fairchild state\n\nthat the part number would not be changed in contravention to\n\nindustry norm. Second, the discrepancy between the PCN and\n\n\n -35-\n\funchanged part number was not as explicit as, perhaps, conflicting\n\nstatements such as being told \"yes\" and later \"no.\" The statements\n\nhere are more similar, at best, to a \"yes\" followed by \"maybe no.\"\n\nThat is, an unchanged part number does not provide the same level\n\nof certainty regarding contradiction as does an affirmative\n\nstatement to the opposite. See id. 33-34. Third, the temporal\n\nproximity between the conflicting statements in Trifiro was\n\nsignificantly short, a week at most, while the supposed conflict\n\nbetween the PCN, representing that the KA7805 was to be redesigned,\n\nand the shrunk-die KA7805's labelling (i.e., with the same part\n\nnumber as the large-die model), representing that the part had not\n\nundergone a change, came into effect approximately one year and\n\nnine months later. With this amount of time before the KA7805's\n\nlabelling could possibly constitute a false statement, a\n\nfactfinder might find it hard to understand how its falsity could\n\nbe obvious to AcBel. See Restatement (Second) of Torts § 541\n\n(1977) (\"The recipient of a fraudulent misrepresentation is not\n\njustified in relying upon its truth if he knows that it is false\n\nor its falsity is obvious to him.\").\n\n Similarly, in Kuwaiti Danish Computer Co., the plaintiff\n\nalleged that a contract had been formed based on his reliance on\n\nthe conduct and statements made by one of the defendant's employees\n\nat the end of negotiations. 781 N.E.2d at 795. The SJC held that\n\n\n -36-\n\fplaintiff's reliance was unreasonable as a matter of law because\n\n\"any statement or conduct\" of defendant's employee \"conflicted\n\nwith the qualifying language of [his] quotation, which stated that\n\nit was only an invitation to offer, and that any contract required\n\napproval from someone with authority at [the defendant company].\"\n\nId. In reaching this conclusion, the SJC stressed that \"[t]he\n\nqualifying language was presented essentially contemporaneously\n\nwith [the defendant's employee's] statements.\" Id.\n\n Again, the distinctions between these circumstances and\n\nthose presented in the case at hand are clear. The conflict\n\nbetween the defendant employee's statement and the information in\n\nthe quotation he provided was unequivocal. As the SJC noted,\n\n\"[a]ll that was required of [plaintiff's representatives] was that\n\nthey read the document to ascertain the obvious.\"21 Id. As noted\n\n\n21 Fairchild cites to this passage in support of its contention\nthat AcBel's reliance on the KA7805's unchanged part number was\nunreasonable, despite the noted difference between the\ncircumstances faced by the plaintiff in Kuwaiti Danish Computer\nCo. from those faced by AcBel. As mentioned above, the\ncircumstances were also significantly different in the other cases\ncited by Fairchild. See, e.g., Rodi, 532 F.3d at 17 (information\nthat conflicted with statement on which plaintiff relied regarding\ndefendant law school's accreditation was contemporaneously\navailable in the school's catalogue); Liberty Leather Corp. v.\nCallum, 653 F.2d 694, 696-99 (1st Cir. 1981) (reliance by plaintiff\non representations by defendant regarding imminence of completion\nof sale of stock to him was unreasonable given that: (1) three to\nfour days after representations were made, defendant called the\nplaintiff to request an increased offer for the stock; and, within\na maximum of seventeen days after defendant's representations,\nplaintiff came to knowledge of shareholder's unanimous vote to\n\n -37-\n\fabove, the supposed conflicting statements in the present case\n\nwere not obviously contradictory nor presented within a short\n\nperiod of time, much less contemporaneously.\n\n Based on the foregoing analysis, we conclude that the\n\ndistrict court erred in dismissing AcBel's fraudulent\n\nmisrepresentation claim summarily. Because the district court's\n\nbasis for dismissal of AcBel's fraudulent omission and negligent\n\nmisrepresentation 22 also rested on its erroneous holding that\n\nAcBel's reliance on the KA7805's unchanged part number was\n\nunreasonable as a matter of law, we conclude that the court erred\n\nin dismissing these two claims as well. Accordingly, we vacate\n\nthe district court's entry of summary judgment dismissing AcBel's\n\n\n\n\nreject his offer).\n22 Inasmuch as the district court's dismissal of AcBel's negligent\nmisrepresentation claim is based on AcBel's supposed failure to\nprovide an affirmative misstatement or presentation of false\ninformation regarding the design changes made to the KA7805, we\nhold that the district court erred given that the evaluation of\nfalsity regarding design changes in the present case's context is\ndependent on industry custom, which is at issue. See supra at 28-\n32. The same logic applies to the district court's dismissal of\nAcBel's fraud by omission and negligent misrepresentation claims\non the grounds that Fairchild did not have a duty to disclose\nissues regarding the KA7805's design or that the part was switched\nback to the large-die version. See Restatement (Second) of Torts\n§ 551(2)(e) (1977) (providing that duty to disclose may arise out\nof \"the customs of the trade\"); see also Greenery Rehab. Grp.,\nInc. v. Antaramian, 628 N.E.2d 1291, 1294 (Mass. App. Ct. 1994)\n(recognizing that a duty to disclose arises out of the situations\ndescribed in § 551).\n\n\n -38-\n\ffraud (Count III), fraud by omission (Count IV), and negligent\n\nmisrepresentation (Count V) claims, and remand for trial on the\n\nmerits.\n\nC. Fairchild's Cross-Appeal\n\n Because we are remanding for further proceedings below,\n\nwe now turn to Fairchild's cross-appeal. Fairchild asks us to\n\norder that it be permitted to conduct additional discovery in\n\nrelation to documents produced by AcBel after the case's discovery\n\ndeadline had elapsed.\n\n Weighing the equities and in light of the possibility\n\nthat discovery related to issues or leads suggested by the late-\n\nproduced documents will lead to evidence relevant to the remanded\n\nclaims, we instruct the district court to reopen discovery\n\nexclusively for purposes of Fairchild's discovery of evidence\n\nstrictly related to AcBel's late-produced documents. See\n\nAngioDynamics, Inc. v. Biolitec AG, 780 F.3d 429, 435 (1st Cir.\n\n2015); see also Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st Cir.\n\n2008) (recognizing that a party's proffer of relevant leads it\n\nmight obtain through additional discovery \"may be an important\n\nfactor in deciding whether to reopen discovery\"); Young v. Gordon,\n\n330 F.3d 76, 82 (1st Cir. 2003) (implying that a party's failure\n\nto meet a case-management deadline should only be to his own\n\nperil).\n\n\n -39-\n\f III. CONCLUSION\n\n For the reasons explained above, we vacate the district\n\ncourt's judgment dismissing AcBel's implied warranty of\n\nmerchantability (Count I), fraud (Count III), fraudulent omission\n\n(Count IV), and negligent misrepresentation (Count V) claims, and\n\nremand for further proceedings consistent with this opinion.\n\n Vacated and Remanded. Each party shall bear its own\n\ncosts.\n\n\n\n\n -40-\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: AcBel Polytech, Inc. v. Fairchild Semiconductor Int'l\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-20\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\nNos. 18-1088,\\n 18-1121\\n\\n ACBEL POLYTECH, INC., individually and as\\n assignee of EMC CORPORATION,\\n\\n Plaintiff-Appellant/Cross-Appellee,\\n\\n v.\\n\\n FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC.,\\n FAIRCHILD SEMICONDUCTOR CORPORATION,\\n\\n Defendants-Third Party Plaintiffs-Appellees/Cross-Appellants,\\n\\n SYNNEX ELECTRONICS HONG KONG LTD.,\\n SYNNEX TECHNOLOGY INTERNATIONAL CORP.,\\n\\n Third Party Defendants.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Denise J. Casper, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Zeb Landsman, with whom Richard Chassin, Jesse Travis Conan,\\nand Becker Glynn Muffly Chassin & Hosinski LLP were on brief, for\\nappellant/cross-appellee.\\n Matthew Iverson, with whom Daniel E. Rosenfeld, Stephen W.\\nHassink, Yasmin Ghassab, DLA Piper LLP, Jeffrey A. Rosenfeld, and\\nAlston & Bird LLP were on brief, for defendants-third party\\nappellees/cross-appellants.\\n\\fJune 20, 2019\\n\\n\\n\\n\\n -2-\\n\\f TORRUELLA, Circuit Judge. We often fail to notice the\\n\\ncomplex interplay between the numerous components that make up\\n\\nelectronic equipment. This is a case about one of these components\\n\\n-- a miniscule microcircuit that serves as a voltage regulator,\\n\\nthe KA7805ERTM (\\\"KA7805\\\").\\n\\n Defendant-Appellee Fairchild Semiconductor\\n\\nCorporation's (\\\"Fairchild US\\\") subsidiaries manufactured the\\n\\nKA7805. Plaintiff-Appellant AcBel Polytech, Inc. (\\\"AcBel\\\")\\n\\npurchased KA7805s from Fairchild's agent and installed them into\\n\\npower supply units (\\\"PSUs\\\") it then sold to EMC Corporation\\n\\n(\\\"EMC\\\"). EMC used the PSUs for its data storage devices. In 2010,\\n\\none of Fairchild US's subsidiaries began to manufacture a new\\n\\n\\\"shrunk-die\\\"1 version of the KA7805 (\\\"shrunk-die KA7805\\\"). After\\n\\nFairchild transitioned to the shrunk-die KA7805, EMC began to\\n\\nexperience problems with AcBel's PSUs. The shrunk-die KA7805s\\n\\nwere failing.\\n\\n AcBel attributed EMC's problems with its PSUs to the\\n\\ndesign of Fairchild's shrunk-die K8705. As a result, it filed a\\n\\ndiversity suit against Fairchild US and its holding company,\\n\\nFairchild Semiconductor International, Inc. (\\\"Fairchild\\n\\n\\n1 A die is a miniaturized electronic circuit manufactured in, and\\non, the surface of a thin substrate of semiconducting material\\n(e.g., silicone). The components of voltage regulators, like the\\nKA7805, are installed on a die.\\n\\n\\n -3-\\n\\fInternational\\\") (collectively, \\\"Fairchild\\\"), asserting claims of\\n\\nbreach of warranty (Counts I, II, XII and XIII); fraud and\\n\\nnegligent misrepresentation (Counts III, IV and V); \\\"design defect\\n\\n-- implied warranty/strict liability\\\" (Counts VI and XIV); \\\"design\\n\\ndefect -- negligence\\\" (Counts VII and XV); \\\"failure to warn --\\n\\nimplied warranty/strict liability\\\" (Counts VIII and XVI); \\\"failure\\n\\nto warn -- negligence\\\" (Counts IX and XVII); and violation of Mass.\\n\\nGen. Laws ch. 93A (Counts X and XVIII).2 AcBel asserted all claims\\n\\non its own behalf and on behalf of EMC, as its assignee, except\\n\\nfor its fraud and misrepresentation claims (Counts III, IV, and\\n\\nV).\\n\\n At the summary judgment stage, the district court\\n\\ndismissed all claims except those involving breach of implied\\n\\nwarranty (Counts I, II, XII, and XIII). After a nine-day bench\\n\\ntrial, the district court dismissed AcBel's remaining breach of\\n\\nimplied warranty claims. AcBel appeals from the dismissal of its\\n\\nimplied warranty of merchantability (Count I), fraud (Counts III\\n\\nand IV) and negligent misrepresentation (Count V) claims.\\n\\nFairchild cross-appeals, contending that, even if the district\\n\\n\\n\\n2 In its complaint, AcBel also presented two claims for punitive\\ndamages (Counts XI and XIX), but these were dismissed by the\\ndistrict court at the early stages of litigation pursuant to a\\nmotion to dismiss filed by Fairchild and are not subject to the\\npresent appeal.\\n\\n\\n -4-\\n\\fcourt's grounds for dismissal were improper, it is still not liable\\n\\nto AcBel because the district court erred in determining that\\n\\nFairchild's subsidiaries were its agents for liability purposes.\\n\\nAdditionally, Fairchild avers in its cross-appeal that, in the\\n\\nevent of reversal, this court should order discovery regarding\\n\\ncertain documents produced by AcBel after discovery had closed\\n\\n(the \\\"late-produced documents\\\").\\n\\n After careful review, we affirm the district court's\\n\\nfinding of Fairchild's liability for the actions of its\\n\\nsubsidiaries, vacate the district court's judgment dismissing\\n\\nAcBel's implied warranty of merchantability, fraud, fraud by\\n\\nomission, and negligent misrepresentation claims, and remand for\\n\\nfurther proceedings consistent with this opinion. Because it will\\n\\nlikely help develop the record for trial on the remanded claims,\\n\\nwe also grant Fairchild's request for additional discovery in\\n\\nrelation to the late-produced documents.\\n\\n I. BACKGROUND\\n\\n AcBel is a Taiwanese company that manufactures and sells\\n\\nPSUs, including Katina, a second-generation PSU used by its\\n\\ncustomer, EMC, in its data storage devices. The Katina PSU was\\n\\ncustom-made for EMC and specifically required the KA7805 voltage\\n\\nregulator, which was designed to emit a constant output of voltage,\\n\\nas one of its approximately 400 components.\\n\\n\\n -5-\\n\\f Fairchild US is a Delaware corporation. Its wholly-\\n\\nowned international subsidiaries (the \\\"Asian subsidiaries\\\")\\n\\nmanufactured, assembled, and distributed the KA7805s.\\n\\nSpecifically, the KA7805s were manufactured by Fairchild Korea\\n\\nSemiconductor Ltd. (\\\"FSC Korea\\\"), assembled by Fairchild\\n\\nSemiconductor Shuzhou Company, Ltd. (\\\"FSC Shuzhou\\\"), and\\n\\ndistributed by Fairchild Semiconductor PTE, Ltd. (\\\"FSC Singapore\\\")\\n\\nand Fairchild Semiconductor Hong Kong Ltd. (\\\"FSC Hong Kong\\\").\\n\\nAlthough the KA7805 voltage regulators were ultimately utilized in\\n\\nthe Katina PSU, Fairchild did not manufacture them specifically\\n\\nfor AcBel.\\n\\n In 2008, AcBel received a process change notice (\\\"PCN\\\")\\n\\nfrom Synnex,3 a company that had apparent authority to act as\\n\\nFairchild's agent, notifying it that the KA7805 voltage regulator\\n\\nwould be redesigned. The new version required that some internal\\n\\ncomponents be moved to accommodate the smaller die, including a\\n\\npart known as the zener diode. In January 2010, FSC Korea began\\n\\nto manufacture the new shrunk-die version of the KA7805. At the\\n\\nend of the design process, FSC Korea performed industry-standard\\n\\ntesting on the shrunk-die KA7805, and there were zero failures\\n\\n\\n3 \\\"Synnex\\\" refers to Synnex Technology International and Synnex\\nElectronics Hong Kong Ltd., third-party defendants that are not\\nparties to this appeal. Synnex distributed Fairchild's KA7805\\nvoltage regulators.\\n\\n\\n -6-\\n\\freported.4 Fairchild did not assign a new part number to the\\n\\nredesigned shrunk-die KA7805.\\n\\n Despite the shrunk-die KA7805's entry into the market in\\n\\nearly 2010, its manufacture and shipment was halted sometime in\\n\\nJuly 2010 when FSC Korea reported a quality incident involving a\\n\\nproduct that used the same shrunk die. The root cause of the\\n\\nreported quality incident was not immediately known. Fairchild\\n\\nUS recommended that FSC Korea permanently cease production of the\\n\\nshrunk-die version KA7805 and revert to the larger die, which was\\n\\ndone by week 35 of 2010. No notification of the switch from the\\n\\nshrunk-die KA7805 model back to the large-die model was provided\\n\\nto AcBel and Fairchild's other customers.\\n\\n Meanwhile, AcBel had purchased 195,000 shrunk-die\\n\\nKA7805s, all of which ended up in the second-generation Katina\\n\\nPSUs it manufactured for EMC. On or about December 3, 2010, while\\n\\nFSC Korea was still investigating the quality issue reported in\\n\\nJuly of that year, AcBel received notice from EMC that thousands\\n\\nof shrunk-die KA7805s had failed, causing the Katina PSUs in its\\n\\ndata storage devices to fail as well. Eventually, it was\\n\\n\\n\\n\\n4 FSC Korea tested the shrunk-die KA7805 in accordance with the\\nstandards set by the Joint Electron Device Engineering Council\\n(\\\"JEDEC\\\"), a body that establishes industry-accepted qualification\\nstandards for testing semiconductor reliability.\\n\\n\\n -7-\\n\\fdetermined that 26,000 PSUs needed to be replaced for EMC\\n\\ncustomers.\\n\\n No terms and conditions limiting liability in connection\\n\\nwith the KA7805 sales were provided to AcBel prior to December\\n\\n2010. At AcBel's request, a representative from FSC Hong Kong\\n\\nformed a task force to address the shrunk-die KA7805's failure\\n\\nissue. On December 22, 2010, Fairchild executed a letter\\n\\nguaranteeing AcBel that it would revert to the non-shrunk or large-\\n\\ndie design of the KA7805.\\n\\n The dispute over the cause of shrunk-die KA7805's\\n\\nfailures eventually led to the current litigation. AcBel\\n\\nattributed the part's failures to the shrunk-die model's design,\\n\\nwhich it claimed made the product defective. During trial,\\n\\nFairchild's expert testified that a certain sequence of events\\n\\nmust occur to trigger the shrunk-die KA7805's failure: (1) moisture\\n\\npenetration; (2) a mechanism for the generation of hydrogen from\\n\\nmoisture on the die surface; (3) a way for the hydrogen to get\\n\\nunderneath the silicon nitride at the edge of the die and find its\\n\\nway to the zener diode; (4) a trigger for the molecular hydrogen\\n\\nto form atomic hydrogen; and (5) that all of these occurrences\\n\\nhappen at relatively low temperatures. Evidence demonstrated that\\n\\nthe failure symptoms could only be duplicated by creating extreme\\n\\nconditions designed to make devices fail, such as a Highly\\n\\n\\n -8-\\n\\fAccelerated Stress Test (\\\"HAST\\\"), with bias, followed by a Low\\n\\nTemperature Operating Life test (\\\"LTOL\\\"). HAST and LTOL testing\\n\\nare not part of the JEDEC standards, so standard industry testing\\n\\nwould not uncover the shrunk-die KA7805's failure systems.\\n\\nAdditionally, evidence presented at trial suggested that EMC's\\n\\nproblems with the KA7805s may have resulted from the extreme heat\\n\\nproduced by AcBel's soldering of the microcircuits to the PSU\\n\\ncircuit boards.\\n\\n AcBel's expert, on the other hand, concluded the KA7805s\\n\\nhad a defective design, and claimed AcBel's soldering process was\\n\\nwithin industry standards. AcBel's expert believed the new\\n\\nplacement of the zener diode in the shrunk-die KA7805 made it\\n\\nsusceptible to moisture exposure, thereby impairing the voltage\\n\\nregulator's electrical function. The expert, however, could not\\n\\nidentify the specific mechanism that caused the KA7805s to fail\\n\\nand did not perform independent testing.\\n\\n II. DISCUSSION\\n\\nA. AcBel's Implied Warranty of Merchantability Claim (Count I)\\n\\n The district court held that Fairchild did not breach\\n\\nthe KA7805's implied warranty of merchantability. It based its\\n\\nholding on AcBel's failure to establish that the design defect of\\n\\nFairchild's shrunk-die KA7805 was foreseeable. AcBel contends\\n\\nthat the district court's analysis was legally flawed, inasmuch as\\n\\n\\n -9-\\n\\fit held that AcBel was required to establish that the design defect\\n\\nof Fairchild's shrunk-die KA7805 was foreseeable in order to\\n\\nprevail in its implied warranty of merchantability claim. Because\\n\\nAcBel challenges a legal determination made by the district court\\n\\nduring the course of the bench trial, our review is de novo.\\n\\nUnited States v. 15 Bosworth St., 236 F.3d 50, 53 (1st Cir. 2001).\\n\\n Under Massachusetts law, with certain exceptions not\\n\\napplicable here, \\\"a warranty that the goods shall be merchantable\\n\\nis implied in a contract for their sale if the seller is a merchant\\n\\nwith respect to goods of that kind.\\\" Mass. Gen. Laws ch. 106,\\n\\n§ 2–314(1) (adopted by Massachusetts from the Uniform Commercial\\n\\nCode (\\\"UCC\\\") § 2–314(1)). Thus, manufacturers impliedly warrant\\n\\nthat their products will be \\\"fit for the ordinary purposes for\\n\\nwhich such goods are used.\\\" Back v. Wickes Corp., 378 N.E.2d 964,\\n\\n969 (Mass. 1978) (quoting Mass. Gen. Laws ch. 106, § 2–314(2)(C)).\\n\\nThe cornerstone of the duty of warranty of merchantability \\\"is the\\n\\nanticipation of foreseeable uses.\\\" Cigna Ins. Co. v. Oy Saunatec,\\n\\nLtd., 241 F.3d 1, 16 (1st Cir. 2001).\\n\\n In its complaint, AcBel alleged that Fairchild breached\\n\\nthe implied warranty of merchantability by selling to AcBel\\n\\ndefective shrunk-die KA7805s that were unfit for their ordinary\\n\\npurpose. As correctly noted by the district court, for AcBel to\\n\\nsucceed on its breach of the implied warranty of merchantability\\n\\n\\n -10-\\n\\fclaim presented on its behalf and on behalf of EMC, it must have\\n\\ndemonstrated at trial that: (1) Fairchild manufactured or sold the\\n\\nshrunk-die KA7805s; (2) a defect or unreasonably dangerous\\n\\ncondition existed that rendered the shrunk-die KA7805s not\\n\\nsuitable for the ordinary uses for which voltage regulators were\\n\\nsold; (3) AcBel and EMC were using the shrunk-die KA7805s in a\\n\\nmanner that Fairchild intended or could have reasonably foreseen;\\n\\nand (4) the defect or unreasonably dangerous condition was a legal\\n\\ncause of AcBel's and EMC's injuries. See Provanzano v. MTD Prods.\\n\\nCo., 215 F. Supp. 3d 134, 138 (D. Mass. 2016) (citing Lally v.\\n\\nVolkswagen Aktiengesellschaft, 698 N.E.2d 28, 43 (Mass. App. Ct.\\n\\n1998)).\\n\\n As to the first prong, Fairchild challenges on appeal\\n\\nthe district court's determination that it is liable for the acts\\n\\nof its subsidiaries. Specifically, the district court found that,\\n\\nbecause Fairchild was so intermingled with the conduct of its\\n\\nsubsidiaries, they were its agents for liability purposes.5 This\\n\\nis relevant for our implied warranty of merchantability analysis\\n\\n\\n5 Given that the district court correctly decided this issue, and\\npersuasively explained its reasoning in detailed fashion, see\\nAcBel Polytech, Inc. v. Fairchild Semiconductor Int'l, Inc., No.\\nCV 13-13046-DJC, 2017 WL 6625036, at *9-10 (D. Mass. Dec. 27,\\n2017), we see no reason to write at length to place our seal of\\napproval on its decision. See In re Fin. Oversight & Mgmt. Bd.\\nfor P.R., No. 18-1165, 2019 WL 1349223, at *3 n.6 (1st Cir.\\nMar. 26, 2019).\\n\\n\\n -11-\\n\\fbecause the shrunk-die KA7805s were manufactured by FSC Korea and\\n\\nsold to AcBel by Synnex, which acted as FSC Hong Kong's agent.6\\n\\nThus, if Fairchild is not liable for its subsidiaries' actions,\\n\\nAcBel is unable to meet the first element of this implied warranty\\n\\nof merchantability inquiry. See Provanzano, 215 F. Supp. 3d at\\n\\n138.\\n\\n Fairchild accepts the district court's factual findings\\n\\nregarding its relationship with its Asian subsidiaries, but on\\n\\nappeal makes three strictly legal arguments in support of its\\n\\ncontention that the district court improperly held it liable for\\n\\nits subsidiaries' conduct.\\n\\n First, Fairchild sustains that the district court based\\n\\nits agency determination on the \\\"pervasive control\\\" theory but did\\n\\nnot make the requisite finding that Fairchild also used the\\n\\ncorporate form to engage in improper conduct. Fairchild contends\\n\\nthat the absence of improper conduct is dispositive because\\n\\n\\\"control, even pervasive control, without more, is not a sufficient\\n\\nbasis for a court to ignore corporate formalities . . . without a\\n\\nshowing of improper conduct.\\\" (quoting Scott v. NG U.S. 1, Inc.,\\n\\n881 N.E.2d 1125, 1132 (Mass. 2008)).\\n\\n Second, Fairchild argues that, even in the absence of\\n\\n\\n6 Fairchild does not challenge the FSC Hong Kong-Synnex agency\\nrelationship.\\n\\n\\n -12-\\n\\fimproper conduct, the district court's agency determination was\\n\\nerroneous because the facts it found do not establish its pervasive\\n\\ncontrol over its subsidiaries, as required to create liability.\\n\\n And third, Fairchild asserts it would not be liable for\\n\\nthe Asian subsidiaries' conduct under the apparent manufacturer\\n\\ndoctrine, as suggested by the district court in dicta, because for\\n\\nthe doctrine to apply, Fairchild must have \\\"participate[d]\\n\\nsubstantially in the design, manufacture, or distribution of the\\n\\n[KA7805s]\\\" and the district court made no finding to such effect.\\n\\n(quoting Lou v. Otis Elevator Co., 933 N.E.2d 140, 148 (Mass. App.\\n\\nCt. 2010)).\\n\\n We are not persuaded. A simple reading of the district\\n\\ncourt's judgment reveals that its decision was made on the basis\\n\\nof an agency theory, not a pervasive control theory, despite its\\n\\nciting of cases addressing the piercing of the corporate veil in\\n\\nsupport of its agency conclusion. See AcBel Polytech, 2017 WL\\n\\n6625036, at *9-10. The district court cited those cases to\\n\\nhighlight the level of control FSC had over its subsidiaries. Id.\\n\\nFairchild's level of control over its subsidiaries is not exclusive\\n\\nof agency but rather supportive of the district court's finding\\n\\nthat such relationship exists. Id. (citing RFF Family P'ship, LP\\n\\nv. Link Dev., LLC, 907 F. Supp. 2d 155, 161 (D. Mass. 2012) (\\\"An\\n\\nagency relationship is created when there is mutual consent,\\n\\n\\n -13-\\n\\fexpress or implied, that the agent is authorized to act on behalf\\n\\nand for the benefit of the principal, subject to the principal's\\n\\ncontrol.\\\" (emphasis added))).\\n\\n Moreover, the intermingling between two entities can\\n\\nalso provide an independent basis for the conclusion that an agency\\n\\nrelationship existed. To this point, in My Bread Baking Co. v.\\n\\nCumberland Farms, Inc., the Supreme Judicial Court of\\n\\nMassachusetts (\\\"SJC\\\") held that:\\n\\n Although common ownership of the stock of two or more\\n corporations together with common management,\\n standing alone, will not give rise to liability on\\n the part of one corporation for the acts of another\\n corporation or its employees, additional facts may be\\n such as to permit the conclusion that an agency or\\n similar relationship exists between the entities.\\n Particularly is this true (a) when there is active\\n and direct participation by the representatives of\\n one corporation, apparently exercising some form of\\n pervasive control, in the activities of another and\\n there is some fraudulent or injurious consequence of\\n the intercorporate relationship, or (b) when there is\\n a confused intermingling of activity of two or more\\n corporations engaged in a common enterprise with\\n substantial disregard of the separate nature of the\\n corporate entities . . . .\\n\\n233 N.E.2d 748, 751-52 (Mass. 1968) (emphasis added).\\n\\n Based on the foregoing and the fact that Fairchild\\n\\naccepts the district court's factual findings, which reveal the\\n\\nhigh degree of control Fairchild actually exercised over its\\n\\nsubsidiaries, we cannot find any error in the district court's\\n\\ndetermination that an agency relationship existed between\\n\\n\\n -14-\\n\\fFairchild and its Asian subsidiaries. The district court was not\\n\\nrequired to make any additional findings, as Fairchild contends,\\n\\nto impose liability. Accordingly, we conclude that AcBel met the\\n\\nfirst element of the implied warranty of merchantability test by\\n\\nestablishing that, for purposes of liability, Fairchild\\n\\nmanufactured and sold the shrunk-die KA7805s.\\n\\n The second element of the test required AcBel to show\\n\\nthat the shrunk-die KA7805 had a defect or unreasonably dangerous\\n\\ncondition7 that made it unsuitable for its ordinary use, while the\\n\\nthird element required AcBel to show it was, along with EMC, using\\n\\nthe shrunk-die KA7805s in a manner that Fairchild intended or could\\n\\nhave reasonably foreseen. Here, things start to get complicated.\\n\\nThe district court conflated its analysis of these two elements.\\n\\nThus, the specific basis for its conclusion that Fairchild did not\\n\\nviolate the shrunk-die KA7805's implied warranty of\\n\\nmerchantability is not completely clear. What is clear, however,\\n\\n\\n\\n7 In the context of the present case, where no person was\\nphysically injured, we interpret \\\"dangerous condition\\\" to mean a\\ncondition that presents a danger of injury to the product itself\\n-- the shrunk-die KA7805 -- and thus to its fitness for its\\nordinary purposes. See generally East River Steamship Corp. v.\\nTransamerica Delaval, Inc., 476 U.S. 858, 871-72 (1986)\\n(explaining, in the context of interpreting UCC § 2-314, that\\n\\\"[d]amage to a product itself is most naturally understood as a\\nwarranty claim\\\"); see also Mass. Gen. Laws ch. 106, § 2-314\\n(adopting UCC § 2-314 for purposes of Massachusetts implied\\nwarranty claims).\\n\\n\\n -15-\\n\\fis that the district court relied on a tort-based design defect\\n\\ntheory and, in doing so, erroneously added an inapplicable\\n\\n\\\"foreseeability by reasonable testing requirement\\\" to AcBel's\\n\\ncontract-based implied warranty of merchantability claim.\\n\\n After recounting the correct four-element test for an\\n\\nimplied warranty of merchantability claim, the district court\\n\\ncited to Town of Westport v. Monsanto Co., a tort case involving\\n\\na dangerous product,8 in support of its conclusion that Fairchild\\n\\ndid not breach the implied warranty of merchantability. AcBel\\n\\nPolytech, 2017 WL 6625036, at *12 (citing Town of Westport,\\n\\nNo. 14 -cv-12041, 2017 WL 1347671, at *4 (D. Mass. Apr. 7, 2017),\\n\\naff'd, 877 F.3d 58 (1st Cir. 2017)). Specifically, the district\\n\\ncourt held that \\\"[a] manufacturer may only be held liable for a\\n\\ndefective design if it fails to design against the reasonably\\n\\nforeseeable risks attending the product's use in that setting.\\\"\\n\\nId. (quoting Town of Westport, 2017 WL 1347671, at *4 (internal\\n\\ncitations and quotations omitted)). The court explained that\\n\\n\\\"[t]he expert testimony and other evidence concerning the design\\n\\nand testing of the shrunk-die KA7805 shows that, to the extent\\n\\n\\n\\n8 Specifically, in Town of Westport, plaintiffs filed suit\\nalleging tort liability against the manufacturer of a dangerous\\nproduct, polychlorinated biphenyls (\\\"PCBs\\\") -- chemicals that are\\nhazardous above certain concentrations. See Town of Westport v.\\nMonsanto Co., 877 F.3d 58, 61-62 (1st Cir. 2017).\\n\\n\\n -16-\\n\\fmoving the zener diode was a risk, there was no reasonably\\n\\nforeseeable risk in its design\\\" and, furthermore, that \\\"[d]espite\\n\\nthe shrunk-die KA7805's rate of failure . . . AcBel failed to show\\n\\nthat any reasonable testing regimen would have revealed any such\\n\\ndefect.\\\" Id.9\\n\\n The district court also seems to have focused on the\\n\\nshrunk-die KA7805's testing for purposes of its analysis of the\\n\\nsecond element of the implied warranty of merchantability test.\\n\\nAfter noting that Fairchild and its subsidiaries tested the shrunk-\\n\\ndie KA7805 in accordance with industry standards10 but could only\\n\\nrecreate its failure by running non-industry standard consecutive\\n\\nHAST and LTOL tests, the court held that \\\"even with the benefit of\\n\\nexpert testimony, AcBel did not show that the shrunk-die [KA7805]\\n\\nwas defective or had an unreasonably dangerous condition.\\\" Id.\\n\\nDoubling down on its focus on testing, the district court finalized\\n\\nits implied warranty of merchantability analysis relying on\\n\\nVassallo v. Baxter Healthcare Corp., 696 N.E.2d 909 (Mass. 1998),\\n\\n\\n\\n\\n9 Because these expressions address foreseeability, albeit\\nincorrectly, we read them to be related to the district court's\\nanalysis of the third element of the implied warranty of\\nmerchantability test, which will be discussed in turn.\\n10 As mentioned above, supra n.4, JEDEC establishes industry-\\naccepted standards for assessing reliability in the semiconductor\\ncomponent industry.\\n\\n\\n -17-\\n\\fanother tort case involving a dangerous product. 11 The court\\n\\nconcluded that \\\"[a]pplying 'the standard of knowledge of an expert\\n\\nin the appropriate field,' [Fairchild] 'could not have []\\n\\ndiscovered by way of reasonable testing' [the shrunk-die KA7805's]\\n\\nrisk of failure under the[] extreme circumstances\\\" created by\\n\\nconsecutively running the HAST and LTOL tests. AcBel Polytech,\\n\\n2017 WL 6625036, at *12 (quoting Vassallo, 696 N.E.2d at 923) (some\\n\\nalterations in the original).\\n\\n The link between a reasonable testing regime, which\\n\\ngenerally goes towards foreseeability, see Vassallo, 696 N.E.2d at\\n\\n923 (applying the reasonable testing standard in the context of a\\n\\nfailure to warn or provide instructions about risks context), and\\n\\nthe district court's conclusion that the KA7805 was not defective\\n\\nor had an unreasonably dangerous condition is not totally clear.\\n\\nNotwithstanding, because this conclusion was only supported by an\\n\\ninapplicable tort-based theory, we need not unravel this mystery\\n\\nto conclude that the district court erred.\\n\\n By considering foreseeability by reasonable testing for\\n\\nits analysis of the second and third elements of the implied\\n\\n\\n11 In Vassallo, the plaintiff sued the successor of a company that\\nmanufactured silicone breast implants she had implanted in her,\\nclaiming that they were negligently designed, accompanied by\\nnegligent product warnings, and breached the implied warranty of\\nmerchantability, with the consequence of causing injuries to her\\nperson. 696 N.E.2d at 912.\\n\\n\\n -18-\\n\\fwarranty of merchantability test, the district court improperly\\n\\ncommingled contract-based and tort-based theories of implied\\n\\nwarranty. See Rule v. Fort Dodge Animal Health, Inc., 607 F.3d\\n\\n250, 252 (1st Cir. 2010) (warning that \\\"[g]eneraliz[ations] about\\n\\nwarranty law should be [made] with care; there are variations in\\n\\nstate law, changes over time, modification by statutes like the\\n\\nUniform Commercial Code, [and] a mingling of tort and contract\\n\\nconcepts\\\"). When economic loss is the only injury that is claimed,\\n\\nrecovery for breach of an implied warranty should be construed as\\n\\ncontract-based, not tort-based, under Massachusetts law. Jacobs\\n\\nv. Yamaha Motor Corp., U.S.A., 649 N.E.2d 758, 762 (Mass. 1995)\\n\\n(recognizing a contract-based warranty claim \\\"to recover against\\n\\na manufacturer or remote seller for breach of warranty causing\\n\\ndamage other than personal injury\\\"); Bay State-Spray &\\n\\nProvincetown S.S., Inc. v. Caterpillar Tractor Co., 533 N.E.2d\\n\\n1350, 1352 (Mass. 1989). We have made the same distinction, see\\n\\nWilson v. Hammer Holdings, Inc., 850 F.2d 3, 7-8 (1st Cir. 1988)\\n\\n(noting a difference between \\\"products liability actions\\\" and\\n\\n\\\"contractually based warranty claims\\\"), and the Supreme Court has\\n\\nsaid as much in the context of an admiralty case, see East River\\n\\nSteamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871-\\n\\n75 (1986) (\\\"When a product injures only itself the reasons for\\n\\nimposing a tort duty are weak and those for leaving the party to\\n\\n\\n -19-\\n\\fits contractual remedies are strong.\\\"); see also 18 Williston on\\n\\nContracts § 52:67 (4th ed.) (\\\"An implied warranty may be breached\\n\\nwhether or not the seller is aware of a defect in the goods\\n\\n. . . .\\\").\\n\\n Because the injury here was to the shrunk-die\\n\\nKA7805s -- the product itself -- it sounds in contract, not tort.\\n\\nAs a result, the reasonableness of the testing of the shrunk-die\\n\\nKA7805 was inconsequential. Instead, the district court's\\n\\nanalysis should have been circumscribed to the foreseeability of\\n\\nthe shrunk-die KA7805's use. See Mass. Gen. Laws ch. 106, § 2-\\n\\n314(2)(c) (\\\"Goods to be merchantable must at least be . . . fit\\n\\nfor the ordinary purposes for which such goods are used . . . .\\\");\\n\\nsee also Cigna Ins. Co., 241 F.3d at 16.\\n\\n Thus, to conduct the proper contractual implied warranty\\n\\nof merchantability inquiry, we must turn to the question of whether\\n\\nAcBel's use of the shrunk-die KA7805's was foreseeable. The\\n\\nshrunk-die KA7805's functionality was contingent on it being\\n\\nsoldered into a circuit board, as AcBel did to install the KA7805s\\n\\nonto its PSUs. The act of soldering the KA7805 into a circuit\\n\\nimplicates exposure to high heat. Furthermore, the tests employed\\n\\nby Fairchild to verify the KA7805's reliability in accordance with\\n\\nthe industry standard and later to determine its failure mechanism\\n\\n\\n\\n\\n -20-\\n\\fall involved exposure to high heat.12 Finally, testimony at trial\\n\\nrevealed that Fairchild was aware of the multiple uses given to\\n\\nthe shrunk-die KA7805. Fairchild US's vice-president, Eric Hertz,\\n\\ndescribed the KA7805 as a \\\"jelly bean product\\\" -- \\\"a product that\\n\\n. . . is sold to a lot of different customers[] [for] a lot of\\n\\ndifferent applications.\\\" Taking these facts into account, we\\n\\ncannot conclude that AcBel was unable to meet the implied warranty\\n\\nof merchantability test's burden of establishing that its use of\\n\\nthe shrunk-die KA7805 was foreseeable.\\n\\n Our inquiry, however, does not end here. Even assuming\\n\\nthat its use of the shrunk-die KA7805s was foreseeable, AcBel was\\n\\nstill required to meet the fourth and last element of the implied\\n\\nwarranty of merchantability test: establishing that a defect or\\n\\nunreasonably dangerous condition of the shrunk-die KA7805\\n\\nconstituted the legal cause of the injuries sustained by itself\\n\\nand EMC. See Provanzano, 215 F. Supp. 3d at 138. The district\\n\\ncourt found that the root cause of the failures experienced by EMC\\n\\nwith the shrunk-die KA7805 was the sequence of events recreated by\\n\\nrunning the HAST, with bias, followed by a LTOL, but that is of\\n\\nlittle help to establish legal or proximate causation. 13 See\\n\\n\\n12 These tests exposed the shrunk-die KA7805 to temperatures as\\nhigh as 150 degrees Celsius. For context, water's boiling point\\nis 100 degrees Celsius.\\n13 The terms \\\"legal cause\\\" and \\\"proximate cause\\\" are\\n\\n -21-\\n\\fRestatement (Second) of Torts § 9 cmt. a (Am. Law. Ins. 1965)\\n\\n(establishing that legal causation traces liability to a person).\\n\\nLegal cause must be sufficient to result in liability. Restatement\\n\\n(Second) of Torts § 9 (Am. Law. Ins. 1965). Be it the result of\\n\\nan act or omission, legal causation leads to a consequence for\\n\\nwhich liability may be imposed on a party. Id.\\n\\n Given its finding on foreseeability, the district court\\n\\nhad no need to reach a finding on legal causation. The evidence\\n\\non this issue was conflicting. As the district court observed,\\n\\nthe problems EMC experienced with the shrunk-die KA7805s may have\\n\\noriginated when AcBel soldered them to its PSU circuit boards14 and\\n\\nother users reported a rate of 0.012%, while AcBel reported a\\n\\nfailure rate of 7.5% for the same relevant time period (third and\\n\\nfourth quarters of 2010).15 In conflict with these observations,\\n\\n\\n\\ninterchangeable. See CSX Transp., Inc. v. McBride, 564 U.S. 685,\\n701 (2011); Cause, Black's Law Dictionary (10th ed. 2014).\\n14 Specifically, the district court found that \\\"the problem with\\nthe shrunk-die KA7805 may have resulted from delamination caused\\nby extreme heat during AcBel's wave soldering process.\\\" AcBel\\nPolytech, 2017 WL 6625036, at *8. In further support of this\\nconclusion, it noted that \\\"[d]elamination was not present when the\\nKA7805s were originally shipped [by Fairchild]. It occurred when\\nthe KA7805s were in the care of AcBel.\\\" Id.\\n15 Furthermore, our own review of the record reveals that AcBel's\\ninternal documents reflect that 80% of its employees, including\\nengineers, failed their soldering skill performance examinations\\nin 2008. This, considered in tandem with EMC's heightened failure\\nrates in comparison with other sources, raises serious questions\\nas to whether AcBel's soldering practices caused the KA7805\\n\\n -22-\\n\\fthe court also noted -- without making any statements as to\\n\\ncredibility -- that AcBel's expert testified that AcBel's\\n\\nsoldering process was within industry standards.\\n\\n The inconclusive nature of the district court's findings\\n\\ncoupled with the absence of a causation analysis -- considered in\\n\\nconjunction with its application of an erred foreseeability\\n\\nanalysis -- counsels us against making a final determination as to\\n\\nwhether Fairchild actually breached the shrunk-die KA7805's\\n\\nwarranty of merchantability. With the benefit of the guidance set\\n\\nout above as to the proper inquiry to be performed in adjudicating\\n\\na contract-based implied warranty of merchantability claim, we\\n\\nbelieve the district court is in an improved position to evaluate\\n\\nthe parties' arguments and evidence in this all but simple case.\\n\\nAccordingly, we vacate the district court's dismissal of AcBel's\\n\\nimplied warranty of merchantability claim and remand for trial\\n\\nwhere the district court shall determine: whether the shrunk-die\\n\\nKA7805 had a defect or unreasonably dangerous condition that\\n\\nrendered it not suitable for the ordinary use for which it was\\n\\nsold; whether AcBel and EMC were using the shrunk-die KA7805 in a\\n\\nmanner that Fairchild intended or could have reasonably foreseen;\\n\\nand whether a defect or unreasonably defective condition of the\\n\\n\\n\\n\\nfailures.\\n\\n\\n -23-\\n\\fshrunk-die KA 7805 constituted the legal cause of AcBel's and EMC's\\n\\ninjury.16\\n\\nB. AcBel's Fraud and Misrepresentation Claims (Counts III, IV,\\n and V)\\n\\n AcBel also challenges the district court's entry of\\n\\nsummary judgment dismissing its fraud (Count III), fraud by\\n\\nomission (Count IV), and negligent misrepresentation (Count V)\\n\\nclaims. Our review is de novo. See Scholz v. Goudreau, 901 F.3d\\n\\n37, 44 (1st Cir. 2018). \\\"In so reviewing, we must 'tak[e] the\\n\\nfacts and all reasonable inferences therefrom in the light most\\n\\nfavorable to [the non-moving party],\\\" in this case AcBel. Id.\\n\\n(quoting Aponte-Rosario v. Acevedo-Vilá, 617 F.3d 1, 6 (1st Cir.\\n\\n2010)). We will affirm a district court's grant of summary\\n\\njudgment only \\\"when there is no genuine dispute as to any material\\n\\nfact and the movant is entitled to judgment as a matter of law.\\\"\\n\\nRivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 (1st Cir.\\n\\n2018) (citation and internal quotation marks omitted).\\n\\n The core of AcBel's fraud and negligent\\n\\nmisrepresentation claims rests on the following factual\\n\\nallegation: despite being required by industry custom, Fairchild\\n\\n\\n16 We assume, without concluding, that as part of trial proceedings\\nthe district court will also have to evaluate the misuse,\\nunreasonable use, and unforeseeable use defenses raised by\\nFairchild. See generally Cigna Ins. Co., 241 F.3d at 14-19; Allen\\nv. Chance Mfg. Co., 494 N.E.2d 1324 (Mass. 1986).\\n\\n\\n -24-\\n\\fdid not notify AcBel that it abandoned the shrunk-die KA7805 and\\n\\nreverted back to the large-die model in week 35 of 2010, either\\n\\nthrough a change in part number or issuance of a PCN. The district\\n\\ncourt based its dismissal of all three of AcBel's fraud and\\n\\nmisrepresentation claims primarily on its conclusion that AcBel's\\n\\nreliance on Fairchild's failure to change the KA7805's part number\\n\\nwhen the part was switched from the large-die to the shrunk-die\\n\\nmodel was, as a matter of law, unreasonable. We disagree and\\n\\ntherefore vacate the district court's dismissal of AcBel's fraud\\n\\nand misrepresentation claims and remand for adjudication of these\\n\\nclaims at trial. For clarity, we discuss each of AcBel's fraud\\n\\nand misrepresentation claims in turn.\\n\\n Under Massachusetts law, to recover on fraudulent\\n\\nmisrepresentation claims, a plaintiff must establish that\\n\\ndefendants: (1) \\\" made a false representation of material fact\\\";\\n\\n(2) \\\"with knowledge of its falsity\\\"; (3) \\\"for the purpose of\\n\\ninducing the plaintiff[] to act on this representation\\\"; (4) \\\"that\\n\\nthe plaintiff[] reasonably relied on the representation as true\\\";\\n\\nand (5) \\\"that [the plaintiff] acted upon it to their damage.\\\"\\n\\nCumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 918 N.E.2d\\n\\n36, 47 (Mass. 2009) (emphasis added); see also Rodi v. S. New\\n\\nEngland Sch. of Law, 532 F.3d 11, 15 (1st Cir. 2008) (pursuant to\\n\\nMassachusetts law, reliance upon the alleged misstatement must be\\n\\n\\n -25-\\n\\f\\\"reasonable under the circumstances\\\").\\n\\n The standard for a fraudulent omission claim retains the\\n\\nabove-cited elements but the \\\"false representation\\\" element takes\\n\\nthe form of an omission. See Sahin v. Sahin, 758 N.E.2d 132, 138\\n\\nn.9 (Mass. 2001). Additionally, to establish a fraud by omission\\n\\nclaim, a plaintiff must establish defendants' \\\"concealment of\\n\\nmaterial information\\\" and \\\"duty requiring disclosure.\\\" Id.\\n\\n The standard for a negligent misrepresentation claim,\\n\\nhowever, differs to a larger extent. \\\"Unlike fraud, negligent\\n\\nmisrepresentation does not require an intent to deceive or actual\\n\\nknowledge that a statement is false.\\\" Cumis Ins. Soc'y, 918 N.E.2d\\n\\nat 47. To succeed on a negligent misrepresentation claim, a\\n\\nplaintiff must establish that:\\n\\n [T]he defendants, \\\"in the course of [their] business,\\n profession or employment, or in any other transaction\\n in which [they had] a pecuniary interest, suppli[ed]\\n false information for the guidance of others in their\\n business transactions\\\" without exercising \\\"reasonable\\n care or competence in obtaining or communicating the\\n information,\\\" that those others justifiably relied on\\n the information, and that they suffered pecuniary loss\\n caused by their justifiable reliance upon the\\n information.\\n\\nId. at 47-48 (citation omitted) (some alterations in original)\\n\\n(emphasis added).\\n\\n As may be noted, and most importantly for purposes of\\n\\nour current analysis, all three of AcBel's fraud and\\n\\nmisrepresentation claims have a reliance requirement.\\n\\n -26-\\n\\f The district court addressed two elements of AcBel's\\n\\nfraud claims: Fairchild's alleged false representation and\\n\\nomission, and AcBel's reasonable reliance on the alleged\\n\\nmisrepresentation and omission. Its decision to grant summary\\n\\njudgment in favor of Fairchild, however, rested exclusively on the\\n\\nlatter.17\\n\\n As to the first switch from the large-die to shrunk-die\\n\\nmodel, the district court found that Fairchild did not make a\\n\\nmisrepresentation by failing to change the KA7805's part number\\n\\nbecause, in 2008, it provided AcBel \\\"adequate notice of the design\\n\\nchange\\\" through the delivery of a PCN.18 The PCN described the\\n\\nchanges that were going to be made to the KA7805 and stated that\\n\\nthe first shipment of shrunk-die model was expected to take place\\n\\nin approximately three months. As to the switch back to the large-\\n\\ndie model in week 35 of 2010, the district court concluded that,\\n\\n\\n17 A finding of a misrepresentation hinges on whether Fairchild\\nhad an obligation to change the KA7805's part number when it\\nswitched the microcircuit from the large-die to the shrunk-die\\nmodel. Because the parties dispute the requirement of a change in\\npart number, this raises an issue of material fact. Specifically,\\nAcBel contends that industry custom and standards required\\nFairchild to add a suffix to the part number, while Fairchild\\nsustains that no change was required. Notwithstanding, for\\npurposes of its summary judgment disposition, the district court\\nassumed the change was required and rested its conclusion on the\\nsupposed unreasonableness of AcBel's reliance on the KA7805's part\\nnumber.\\n18 The PCN was delivered to AcBel by Fairchild's agent, Synnex.\\n\\n\\n -27-\\n\\finasmuch as \\\"the [KA7805s] were returned to their original\\n\\ndesign[,] . . . labeling them with the original part number was\\n\\nnot a false statement even under AcBel's representation of the\\n\\nindustry custom.\\\" Accordingly, it held that Fairchild's \\\"failure\\n\\nto change the part number when 'the second change' was made [did]\\n\\nnot amount to a misrepresentation.\\\"\\n\\n Whether Fairchild's continued use of the same part\\n\\nnumber for the shrunk-die KA7805 constituted a misrepresentation\\n\\nis contingent on whether industry norm required a change -- an\\n\\nissue of material fact. On review, we must presume as much. See\\n\\nScholz, 901 F.3d at 44. Assuming that the change was required, as\\n\\nwe must, the district court's position in granting summary judgment\\n\\nthat Fairchild's failure to change the KA7805's part number was\\n\\nsomehow cured as a matter of law by the PCN in 2008, and then by\\n\\nthe reassignment of the unchanged part number back to the large-\\n\\ndie version in 2010, is unavailing. While it is true that Fairchild\\n\\nsent a PCN informing AcBel that a switch to a new shrunk-die model\\n\\nwas going to take place, nowhere in the PCN does Fairchild affirm\\n\\nor deny that a new part number was going to be assigned. Under\\n\\nthese circumstances was it not safe for AcBel to assume, at some\\n\\npoint, that the shrunk-die model retained the large-die model's\\n\\npart number, despite this being contrary to the usual practice\\n\\nunder industry custom? In such case, would changing the KA7805\\n\\n\\n -28-\\n\\fback to a large-die design without informing such change not\\n\\nconstitute a misrepresentation given that its original part number\\n\\nnow constituted the shrunk-die's part number? We view these\\n\\nquestions as too dependent on the idiosyncrasies of industry norms\\n\\nto be addressed with the record available to the district court at\\n\\nsummary judgment.\\n\\n Furthermore, the extent to which the PCN could have cured\\n\\nFairchild's failure to change the part number when switching to\\n\\nthe shrunk-die model is in itself an issue of material fact better\\n\\nleft for trial. Likewise, whether Fairchild was required to issue\\n\\na PCN in 2010 when switching back to the large-die model in 2010,\\n\\nas AcBel alleges was required by industry norm, is also an issue\\n\\nof material fact better left for trial.\\n\\n That the KA7805's part number, after week 35 of 2010,\\n\\nonce again coincided with the large-die model to which it was\\n\\noriginally assigned does not preclude the existence of an\\n\\naffirmative misrepresentation. The thrust of AcBel's affirmative\\n\\nmisrepresentation claim lies in that, by keeping the same part\\n\\nnumber for both the large-die and shrunk-die models, Fairchild\\n\\nmisrepresented that the part had not undergone a material change.\\n\\nThe factfinder could certainly find that a highly unusual switch\\n\\nback to the large-die model, which would have put AcBel on notice\\n\\nregarding issues with the shrunk-die model, is a material change.\\n\\n\\n -29-\\n\\f In any case, we now turn to what we read as the district\\n\\ncourt's primary basis for dismissing AcBel's fraud and\\n\\nmisrepresentation claims, regardless of whether Fairchild's\\n\\nfailure to change the part number constituted a misrepresentation\\n\\n-- AcBel's allegedly unreasonable reliance on the unchanged part\\n\\nnumber.\\n\\n In regard to AcBel's reliance on the unchanged part\\n\\nnumber, the district court held that, even assuming that the\\n\\nunchanged part number constituted a misrepresentation, AcBel's\\n\\nreliance upon it was unreasonable as a matter of law because the\\n\\nPCN placed AcBel on notice that the KA7805 was being switched to\\n\\nthe shrunk-die model. For the district court, the PCN and the\\n\\nunchanged part number (to the extent that it represented that the\\n\\nKA7805 had not been altered) constituted \\\"conflicting statements\\\"\\n\\nthat \\\"engender[ed] doubt\\\" and thus rendered AcBel's reliance on\\n\\nthe part number unreasonable as a matter of law. Along the same\\n\\nvein, the court considered that AcBel's reliance was unreasonable\\n\\nbecause, at the very least, these \\\"conflicting statements\\\"\\n\\ntriggered AcBel's duty to inquire as to whether \\\"the information\\n\\nin the PCN was nullified by the allegedly unchanged part number,\\\"\\n\\nwhich the record reflects AcBel did not do. AcBel Polytech, Inc.\\n\\nv. Fairchild Semiconductor Int'l, Inc., No. CV 13-13046-DJC, 2016\\n\\nWL 7197368, at *12 (D. Mass. Dec. 9, 2016).\\n\\n\\n -30-\\n\\f In order to establish a claim for fraud, reliance upon\\n\\nthe alleged misstatement must be \\\"reasonable under the\\n\\ncircumstances.\\\" Rodi, 532 F.3d at 15. While \\\"[a] party may\\n\\njustifiably rely on a misrepresentation even if he could have\\n\\nascertained its falsity by conducting an investigation,\\\"\\n\\nmisrepresentations that could be discovered by a \\\"cursory glance,\\\"\\n\\nand are known to be false or obviously false, may not be relied\\n\\nupon. Sanford Inst. for Sav. v. Gallo, 156 F.3d 71, 74-75 (1st\\n\\nCir. 1998).19 As the SJC has explained, a plaintiff may not rely\\n\\n\\\"on a representation that [is] either preposterous or palpably\\n\\nfalse.\\\" Yorke v. Taylor, 124 N.E.2d 912, 916 (Mass. 1955); see\\n\\nalso Damon v. Sun Co., Inc., 87 F.3d 1467, 1480 (1st Cir. 1996)\\n\\n(\\\"Only reliance on 'preposterous or palpably false'\\n\\nrepresentations vitiates a misrepresentation claim.\\\" (citation\\n\\nomitted)). \\\"[I]f a mere cursory glance would have disclosed the\\n\\nfalsity of the representation, its falsity is regarded as obvious\\n\\n. . . .\\\" Kuwaiti Danish Comput. Co. v. Dig. Equip. Corp., 781\\n\\nN.E.2d 787, 795 (Mass. 2003). Accordingly, if the plaintiff could\\n\\n\\n\\n19 Although Sanford is a bankruptcy case, the cited expressions\\nregarding reasonable reliance are guided by the same common law\\nconcepts adopted by Massachusetts law. Compare Sanford, 156 F.3d\\nat 74-76 (citing Restatement (Second) of Torts §§ 540, 541 cmt. a\\n(1976)) with Kuwaiti Danish Comput. Co. v. Dig. Equip. Corp., 781\\nN.E.2d 787, 795 (Mass. 2003) (citing Restatement (Second) of Torts\\n§§ 540, 541).\\n\\n\\n -31-\\n\\fhave discovered the falsity of the defendant's representation, but\\n\\nfailed to do so, plaintiff's reliance is reasonable unless there\\n\\nwere \\\"any warning signs . . . either in the documents, in the\\n\\nnature of [a] transaction, or in [defendant's] conduct or\\n\\nstatements.\\\" Sanford, 156 F.3d at 75 (quoting Restatement (Second)\\n\\nof Torts § 540, cmt. a (1977)); see also Kenda Corp., Inc. v. Pot\\n\\nO'Gold Money Leagues, Inc., 329 F.3d 216, 227 (1st Cir. 2003)\\n\\n(\\\"Certainly where a defendant has willfully made false\\n\\nrepresentations with intent to deceive he ought not to be relieved\\n\\nof liability because of his victim's lack of diligence.\\\" (quoting\\n\\nYorke, 124 N.E.2d at 916)).\\n\\n Clearly conflicting statements, however, \\\"should [place]\\n\\npetitioner on notice that he should not rely on either statement.\\n\\nConfronted by such a conflict a reasonable person investigates\\n\\nmatters further; he receives assurances or clarification before\\n\\nrelying.\\\" Trifiro v. N.Y. Life Ins. Co., 845 F.2d 30, 33 (1st\\n\\nCir. 1988). \\\"Explicit conflict engenders doubt, and to rely on a\\n\\nstatement the veracity of which one should doubt is unreasonable.\\\"\\n\\nId. at 34 (emphasis added).\\n\\n The conflicting information that the district court\\n\\nfound triggered AcBel's duty to inquire -- or otherwise make its\\n\\nreliance on either piece of information unreasonable -- was the\\n\\ncontent of the Fairchild's 2008 PCN and the unchanged part number\\n\\n\\n -32-\\n\\fin the KA7805's label. The PCN represented that the KA7805 was\\n\\nundergoing a design change. The unchanged part number, on the\\n\\nother hand, could be perceived to represent that no change was\\n\\nmade to the KA7805's design following the delivery of the PCN. In\\n\\nlight of the fact that the PCN did not provide a specific date for\\n\\nthe shipment of shrunk-die KA7805s, we cannot agree that there was\\n\\nno issue of material fact regarding the existence of a conflict\\n\\nbetween the representations, much less as to the existence of an\\n\\n\\\"[e]xplicit conflict\\\" that \\\"engender[ed] doubt\\\" and thus triggered\\n\\nAcBel's duty to inquire. Id. Given the uncertainty as to shipment\\n\\ndate reflected in the PCN, and the lack of temporal proximity\\n\\nbetween the delivery of the PCN and the actual commencement of\\n\\nshipment of shrunk-die KA7805s to AcBel -- approximately one year\\n\\nand nine months later -- we conclude that the issues of AcBel's\\n\\nreasonable reliance (in general) and the existence of a conflict\\n\\nin information that triggered AcBel's duty to inquire (more\\n\\nspecifically) would be more properly addressed at trial.20 See\\n\\nMarram v. Kobrick Offshore Fund, Ltd., 809 N.E.2d 1017, 1031 (Mass.\\n\\n\\n\\n20 The district court did not address AcBel's reliance on the\\nunchanged part number in relation to Fairchild's switch back to\\nthe large-die model in week 35 of 2010, but rather only as to the\\nfirst switch to the shrunk-die in week 1 of 2010. Fairchild's\\nfailure to differentiate between the two models based on part\\nnumber permitted it to revert to the large-die model without\\nexplicitly revealing that this change had been made.\\n\\n\\n -33-\\n\\f2004).\\n\\n By the same token, we cannot agree that AcBel's reliance\\n\\non the unchanged part number was unreasonable as a matter of law.\\n\\nA court's reasonable reliance analysis is based on the\\n\\ncircumstances of the alleged reliance on a representation. Rodi,\\n\\n532 F.3d at 15. The circumstances in the present case are clearly\\n\\ndistinguishable from those presented in the cases cited by\\n\\nFairchild, as well as other we have located, where the First\\n\\nCircuit or Massachusetts courts have found a plaintiff's reliance\\n\\nunreasonable due to the existence of conflicting information.\\n\\n For example, in Trifiro, cited approvingly by the\\n\\ndistrict court, the plaintiff claimed that he reasonably relied on\\n\\na statement made by defendant's officer as to the formation of a\\n\\ncontract which was directly contradicted by a letter sent by\\n\\ndefendant shortly thereafter. 845 F.2d at 33. Specifically,\\n\\nduring an initial conversation, defendant's officer expressed to\\n\\nplaintiff's agent that, despite his employer having a committee\\n\\napproval requirement, the transaction proposed by plaintiff \\\"would\\n\\nbe a small deal for [defendant] and . . . committee approval would\\n\\nbe a mere formality.\\\" Id. Notwithstanding, a mere two days to a\\n\\nweek later, the defendant sent the plaintiff a letter explicitly\\n\\nstating that \\\"approval of any proposal would be at the sole\\n\\ndiscretion of the appropriate committee or authority\\\" and,\\n\\n\\n -34-\\n\\ffurthermore, requesting that plaintiff \\\"acknowledge [his]\\n\\nunderstanding of . . . [the requirement of committee approval] by\\n\\nsigning and dating the enclosed copy of th[e] letter.\\\" Id. (some\\n\\nalterations in the original). Plaintiff signed the letter but,\\n\\nnonetheless, later asked this court to \\\"hold that he acted\\n\\nreasonably in relying on the earlier oral statement made to [his\\n\\nagent] that committee approval would be a mere formality.\\\" Id.\\n\\nWe rejected the plaintiff's request holding that \\\"[w]hen a person\\n\\nacts in a way contrary to his own acknowledged understanding of\\n\\nthe facts, his acts must be deemed unreasonable as a matter of\\n\\nlaw,\\\" and, furthermore, that the circumstances rendered the\\n\\nplaintiff's reliance unreasonable because he was the recipient of\\n\\nexplicitly conflicting information -- one statement that approval\\n\\nof his proposal was certain versus a second representing that it\\n\\nwas uncertain. Id.\\n\\n These cases are very fact-dependent. Nevertheless, the\\n\\ncircumstances in the present case lead us to conclude that the\\n\\nquestion of whether AcBel's reliance on the unchanged part number\\n\\nwas reasonable is an issue of fact. First, while it is true that\\n\\nAcBel admitted it received the PCN informing that Fairchild would\\n\\nswitch to a small-die model, nowhere in the PCN did Fairchild state\\n\\nthat the part number would not be changed in contravention to\\n\\nindustry norm. Second, the discrepancy between the PCN and\\n\\n\\n -35-\\n\\funchanged part number was not as explicit as, perhaps, conflicting\\n\\nstatements such as being told \\\"yes\\\" and later \\\"no.\\\" The statements\\n\\nhere are more similar, at best, to a \\\"yes\\\" followed by \\\"maybe no.\\\"\\n\\nThat is, an unchanged part number does not provide the same level\\n\\nof certainty regarding contradiction as does an affirmative\\n\\nstatement to the opposite. See id. 33-34. Third, the temporal\\n\\nproximity between the conflicting statements in Trifiro was\\n\\nsignificantly short, a week at most, while the supposed conflict\\n\\nbetween the PCN, representing that the KA7805 was to be redesigned,\\n\\nand the shrunk-die KA7805's labelling (i.e., with the same part\\n\\nnumber as the large-die model), representing that the part had not\\n\\nundergone a change, came into effect approximately one year and\\n\\nnine months later. With this amount of time before the KA7805's\\n\\nlabelling could possibly constitute a false statement, a\\n\\nfactfinder might find it hard to understand how its falsity could\\n\\nbe obvious to AcBel. See Restatement (Second) of Torts § 541\\n\\n(1977) (\\\"The recipient of a fraudulent misrepresentation is not\\n\\njustified in relying upon its truth if he knows that it is false\\n\\nor its falsity is obvious to him.\\\").\\n\\n Similarly, in Kuwaiti Danish Computer Co., the plaintiff\\n\\nalleged that a contract had been formed based on his reliance on\\n\\nthe conduct and statements made by one of the defendant's employees\\n\\nat the end of negotiations. 781 N.E.2d at 795. The SJC held that\\n\\n\\n -36-\\n\\fplaintiff's reliance was unreasonable as a matter of law because\\n\\n\\\"any statement or conduct\\\" of defendant's employee \\\"conflicted\\n\\nwith the qualifying language of [his] quotation, which stated that\\n\\nit was only an invitation to offer, and that any contract required\\n\\napproval from someone with authority at [the defendant company].\\\"\\n\\nId. In reaching this conclusion, the SJC stressed that \\\"[t]he\\n\\nqualifying language was presented essentially contemporaneously\\n\\nwith [the defendant's employee's] statements.\\\" Id.\\n\\n Again, the distinctions between these circumstances and\\n\\nthose presented in the case at hand are clear. The conflict\\n\\nbetween the defendant employee's statement and the information in\\n\\nthe quotation he provided was unequivocal. As the SJC noted,\\n\\n\\\"[a]ll that was required of [plaintiff's representatives] was that\\n\\nthey read the document to ascertain the obvious.\\\"21 Id. As noted\\n\\n\\n21 Fairchild cites to this passage in support of its contention\\nthat AcBel's reliance on the KA7805's unchanged part number was\\nunreasonable, despite the noted difference between the\\ncircumstances faced by the plaintiff in Kuwaiti Danish Computer\\nCo. from those faced by AcBel. As mentioned above, the\\ncircumstances were also significantly different in the other cases\\ncited by Fairchild. See, e.g., Rodi, 532 F.3d at 17 (information\\nthat conflicted with statement on which plaintiff relied regarding\\ndefendant law school's accreditation was contemporaneously\\navailable in the school's catalogue); Liberty Leather Corp. v.\\nCallum, 653 F.2d 694, 696-99 (1st Cir. 1981) (reliance by plaintiff\\non representations by defendant regarding imminence of completion\\nof sale of stock to him was unreasonable given that: (1) three to\\nfour days after representations were made, defendant called the\\nplaintiff to request an increased offer for the stock; and, within\\na maximum of seventeen days after defendant's representations,\\nplaintiff came to knowledge of shareholder's unanimous vote to\\n\\n -37-\\n\\fabove, the supposed conflicting statements in the present case\\n\\nwere not obviously contradictory nor presented within a short\\n\\nperiod of time, much less contemporaneously.\\n\\n Based on the foregoing analysis, we conclude that the\\n\\ndistrict court erred in dismissing AcBel's fraudulent\\n\\nmisrepresentation claim summarily. Because the district court's\\n\\nbasis for dismissal of AcBel's fraudulent omission and negligent\\n\\nmisrepresentation 22 also rested on its erroneous holding that\\n\\nAcBel's reliance on the KA7805's unchanged part number was\\n\\nunreasonable as a matter of law, we conclude that the court erred\\n\\nin dismissing these two claims as well. Accordingly, we vacate\\n\\nthe district court's entry of summary judgment dismissing AcBel's\\n\\n\\n\\n\\nreject his offer).\\n22 Inasmuch as the district court's dismissal of AcBel's negligent\\nmisrepresentation claim is based on AcBel's supposed failure to\\nprovide an affirmative misstatement or presentation of false\\ninformation regarding the design changes made to the KA7805, we\\nhold that the district court erred given that the evaluation of\\nfalsity regarding design changes in the present case's context is\\ndependent on industry custom, which is at issue. See supra at 28-\\n32. The same logic applies to the district court's dismissal of\\nAcBel's fraud by omission and negligent misrepresentation claims\\non the grounds that Fairchild did not have a duty to disclose\\nissues regarding the KA7805's design or that the part was switched\\nback to the large-die version. See Restatement (Second) of Torts\\n§ 551(2)(e) (1977) (providing that duty to disclose may arise out\\nof \\\"the customs of the trade\\\"); see also Greenery Rehab. Grp.,\\nInc. v. Antaramian, 628 N.E.2d 1291, 1294 (Mass. App. Ct. 1994)\\n(recognizing that a duty to disclose arises out of the situations\\ndescribed in § 551).\\n\\n\\n -38-\\n\\ffraud (Count III), fraud by omission (Count IV), and negligent\\n\\nmisrepresentation (Count V) claims, and remand for trial on the\\n\\nmerits.\\n\\nC. Fairchild's Cross-Appeal\\n\\n Because we are remanding for further proceedings below,\\n\\nwe now turn to Fairchild's cross-appeal. Fairchild asks us to\\n\\norder that it be permitted to conduct additional discovery in\\n\\nrelation to documents produced by AcBel after the case's discovery\\n\\ndeadline had elapsed.\\n\\n Weighing the equities and in light of the possibility\\n\\nthat discovery related to issues or leads suggested by the late-\\n\\nproduced documents will lead to evidence relevant to the remanded\\n\\nclaims, we instruct the district court to reopen discovery\\n\\nexclusively for purposes of Fairchild's discovery of evidence\\n\\nstrictly related to AcBel's late-produced documents. See\\n\\nAngioDynamics, Inc. v. Biolitec AG, 780 F.3d 429, 435 (1st Cir.\\n\\n2015); see also Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st Cir.\\n\\n2008) (recognizing that a party's proffer of relevant leads it\\n\\nmight obtain through additional discovery \\\"may be an important\\n\\nfactor in deciding whether to reopen discovery\\\"); Young v. Gordon,\\n\\n330 F.3d 76, 82 (1st Cir. 2003) (implying that a party's failure\\n\\nto meet a case-management deadline should only be to his own\\n\\nperil).\\n\\n\\n -39-\\n\\f III. CONCLUSION\\n\\n For the reasons explained above, we vacate the district\\n\\ncourt's judgment dismissing AcBel's implied warranty of\\n\\nmerchantability (Count I), fraud (Count III), fraudulent omission\\n\\n(Count IV), and negligent misrepresentation (Count V) claims, and\\n\\nremand for further proceedings consistent with this opinion.\\n\\n Vacated and Remanded. Each party shall bear its own\\n\\ncosts.\\n\\n\\n\\n\\n -40-\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2382,"cells":{"id":{"kind":"number","value":8444014,"string":"8,444,014"},"name":{"kind":"string","value":"MAINE POOLED DISABILITY TRUST Yvonne R. Richardson, by her Conservator Barbara Carlin v. Ricker HAMILTON, in his official capacity as Commissioner of Maine Department of Health and Human Services"},"name_abbreviation":{"kind":"string","value":"Me. Pooled Disability Trust v. Hamilton"},"decision_date":{"kind":"string","value":"2019-06-20"},"docket_number":{"kind":"string","value":"No. 18-1223"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Barron, Kayatta, Thompson\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415449/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415450/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"BARRON"},"judge2":{"kind":"string","value":"KAYATTA"},"judge3":{"kind":"string","value":"THOMPSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444014/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: MAINE POOLED DISABILITY TRUST Yvonne R. Richardson, by her Conservator Barbara Carlin v. Ricker HAMILTON, in his official capacity as Commissioner of Maine Department of Health and Human Services\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-20\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: MAINE POOLED DISABILITY TRUST Yvonne R. Richardson, by her Conservator Barbara Carlin v. Ricker HAMILTON, in his official capacity as Commissioner of Maine Department of Health and Human Services\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-20\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2383,"cells":{"id":{"kind":"number","value":8444029,"string":"8,444,029"},"name":{"kind":"string","value":"ACBEL POLYTECH, INC., individually and as assignee of EMC Corporation, Plaintiff-Appellant/Cross-Appellee v. FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC., Fairchild Semiconductor Corporation, Defendants-Third Party Plaintiffs-Appellees/Cross-Appellants, Synnex Electronics Hong Kong Ltd., Synnex Technology International Corp., Third Party"},"name_abbreviation":{"kind":"string","value":"Acbel Polytech, Inc. v. Fairchild Semiconductor Int'l, Inc."},"decision_date":{"kind":"string","value":"2019-06-20"},"docket_number":{"kind":"string","value":"Nos. 18-1088; 18-1121"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Barron, Kayatta, Torruella\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415466/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"BARRON"},"judge2":{"kind":"string","value":"KAYATTA"},"judge3":{"kind":"string","value":"TORRUELLA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444029/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: ACBEL POLYTECH, INC., individually and as assignee of EMC Corporation, Plaintiff-Appellant/Cross-Appellee v. FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC., Fairchild Semiconductor Corporation, Defendants-Third Party Plaintiffs-Appellees/Cross-Appellants, Synnex Electronics Hong Kong Ltd., Synnex Technology International Corp., Third Party\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-20\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: ACBEL POLYTECH, INC., individually and as assignee of EMC Corporation, Plaintiff-Appellant/Cross-Appellee v. FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC., Fairchild Semiconductor Corporation, Defendants-Third Party Plaintiffs-Appellees/Cross-Appellants, Synnex Electronics Hong Kong Ltd., Synnex Technology International Corp., Third Party\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-20\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2384,"cells":{"id":{"kind":"number","value":4632442,"string":"4,632,442"},"name":{"kind":"string","value":"In RE: The FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as Representative for the Commonwealth of Puerto Rico; The Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority, Debtors. Ambac Assurance Corporation, Plaintiff, Appellant, v. Commonwealth of Puerto Rico, Through the Secretary of Justice; Financial Oversight and Management Board; Puerto Rico Fiscal Agency and Financial Advisory Authority, Through the Secretary of Justice; Puerto Rico Highways and Transportation Authority, Through the Secretary of Justice; Ricardo Rossello Nevares, Through the Secretary of Justice; Raul Maldonado Gautier, Through the Secretary of Justice; Jose Ivan Marrero-Rosado; Jose B. Carrion, III; Christian Sobrino Vega; Andrew G. Biggs; Carlos M. Garcia ; Arthur J. Gonzalez; Jose R. Gonzalez ; Ana J. Matosantos; David A. Skeel, Jr.; Elias Sanchez, Defendants, Appellees, Official Committee of Unsecured Creditors, Intervenor, John Does 1-12, Defendants."},"name_abbreviation":{"kind":"string","value":"Ambac Assurance Corp. v. Commonwealth (In Re Fin. Oversight & Mgmt. Bd. for Puerto Rico)"},"decision_date":{"kind":"string","value":"2019-06-24"},"docket_number":{"kind":"string","value":"18-1214P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Lipez, Kayatta\", \"parties\": \"\", \"opinions\": [{\"author\": \"KAYATTA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1214\\n\\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\\nRICO, as representative for the Commonwealth of Puerto Rico; THE\\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as\\n representative for the Puerto Rico Highways and Transportation\\n Authority,\\n\\n Debtors.\\n\\n\\n\\n AMBAC ASSURANCE CORPORATION,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n COMMONWEALTH OF PUERTO RICO, through the Secretary of Justice;\\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD; PUERTO RICO FISCAL\\n AGENCY AND FINANCIAL ADVISORY AUTHORITY, through the Secretary\\n of Justice; PUERTO RICO HIGHWAYS AND TRANSPORTATION AUTHORITY,\\n through the Secretary of Justice; RICARDO ROSSELLO NEVARES,\\n through the Secretary of Justice; RAUL MALDONADO GAUTIER,\\nthrough the Secretary of Justice; JOSE IVAN MARRERO-ROSADO; JOSE\\nB. CARRION, III; CHRISTIAN SOBRINO VEGA; ANDREW G. BIGGS; CARLOS\\n M. GARCIA; ARTHUR J. GONZALEZ; JOSE R. GONZALEZ; ANA J.\\n MATOSANTOS; DAVID A. SKEEL, JR.; ELIAS SANCHEZ,\\n\\n Defendants, Appellees,\\n\\n OFFICIAL COMMITTEE OF UNSECURED CREDITORS,\\n\\n Intervenor,\\n\\n JOHN DOES 1–12,\\n\\n Defendants.\\n\\f APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Laura Taylor Swain, U.S. District Judge*]\\n\\n\\n Before\\n\\n Torruella, Lipez, and Kayatta,\\n Circuit Judges.\\n\\n\\n Atara Miller, with whom Dennis F. Dunne, Andrew M. Leblanc,\\nGrant F. Mainland, Milbank, Tweed, Hadley & McCloy LLP, Roberto A.\\nCámara-Fuertes, and Ferraiouli LLC were on brief, for appellant.\\n Mark C. Ellenberg, Howard R. Hawkins, Jr., Lary Stromfeld,\\nEllen V. Holloman, Gillian Groarke Burns, Thomas J. Curtin, Casey\\nServais, Cadwalder, Wickersham & Taft LLP, Heriberto Burgos Pérez,\\nRicardo F. Casellas-Sánchez, Diana Pérez-Seda, Casellas Alcover &\\nBurgos, Maria E. Picó, Rexach & Picó, CSP, Martin A. Sosland, Jason\\nW. Callen, and Butler Snow LLP on brief for Assured Guaranty\\nCorporation, Assured Guaranty Municipal Corporation, and Financial\\nGuaranty Insurance Company, amici curiae.\\n Vincent Levy, Daniel M. Sullivan, Margot Hoppin, Evan H.\\nStein, and Holwell Shuster & Goldberg LLP on brief for Professor\\nJohn W. Ely, Jr., amicus curiae.\\n Bruce R. Zirinsky and Zirinsky Law Partners LLC on brief for\\nRepresentative Rob Bishop, amicus curiae.\\n Martin J. Bienenstock, with whom Stephen L. Ratner, Mark D.\\nHarris, Michael A. Firestein, Lary Alan Rappaport, Timothy W.\\nMungovan, John E. Roberts, Proskauer Rose LLP, Hermann D. Bauer-\\nAlvarez, and O'Neill & Borges LLC were on brief, for appellee\\nFinancial Oversight and Management Board for Puerto Rico.\\n Peter M. Friedman, with whom Isaías Sánchez-Báez, Solicitor\\nGeneral of Puerto Rico, Carlos Lugo-Fiol, John J. Rapisardi,\\nElizabeth L. McKeen, Ashley M. Pavel, O'Melveny & Myers LLP, Luis\\nMarini, and Marini Pietrantoni Muñoz, LLC were on brief, for\\nappellees the Puerto Rico Fiscal Agency and Financial Advisory\\nAuthority, Christian Sobrino Vega, Ricardo Rosselló Nevares, Raul\\nMaldonado Gautier, and Jose Ivan Marrero Rosado.\\n Paul S. Samson, Riemer & Braunstein LLP, Gregory E. Garman,\\nErick T. Gjerdingen, and Garman Turner Gordon LLP on brief for\\nCongressman Raúl Grijalva, ranking member of the House Committee\\non Natural Resources, and Congresswoman Nydia Velázquez, member of\\n\\n\\n *Of the Southern District of New York, sitting by designation.\\n\\fthe House Committee on Natural Resources, amici curiae.\\n Luc A. Despins, with whom Nicholas A. Bassett, Paul Hastings\\nLLP, Juan J. Casillas Ayala, and Casillas, Santiago & Torres LLC\\nwere on brief, for the Official Committee of Unsecured Creditors\\nof All Puerto Rico Title III Debtors (Other than COFINA).\\n\\n\\n June 24, 2019\\n\\f KAYATTA, Circuit Judge. Ambac is a financial guaranty\\n\\ninsurer and individual holder of Puerto Rico Highways and\\n\\nTransportation Authority (HTA) bonds. In this Title III adversary\\n\\nproceeding arising within HTA's debt-adjustment proceedings\\n\\npursuant to the Puerto Rico Oversight, Management, and Economic\\n\\nStability Act (PROMESA), Ambac brings constitutional and statutory\\n\\nchallenges to measures the Commonwealth of Puerto Rico has taken\\n\\nto block payments to holders of HTA bonds. Because the Title III\\n\\ncourt lacks the authority to grant the declaratory and injunctive\\n\\nrelief that Ambac seeks, we affirm the dismissal of Ambac's claims.\\n\\n I.\\n\\n Because this appeal comes before us from the dismissal\\n\\nof Ambac's constitutional and statutory claims, \\\"we take as true\\n\\nthe facts presented in [Ambac's] complaint and draw all reasonable\\n\\ninferences in [its] favor.\\\" Maloy v. Ballori-Lage, 744 F.3d 250,\\n\\n251 (1st Cir. 2014).\\n\\n HTA develops, operates, and maintains Puerto Rico's\\n\\nhighways and transportation infrastructure. It has the ability to\\n\\nissue bonds to finance its operations pursuant to the Puerto Rico\\n\\nHighways and Transportation Authority Act, P.R. Laws Ann. tit. 9,\\n\\n§ 2012. In 1968 and 1998, HTA adopted resolutions issuing bonds.\\n\\nThe resolutions set forth the contractual relationship between HTA\\n\\nand bondholders and \\\"pledge[]\\\" for the payment of \\\"principal,\\n\\ninterest and premiums\\\" certain \\\"[r]evenues\\\" and \\\"funds received by\\n\\n\\n - 4 -\\n\\f[HTA] . . . from the Commonwealth\\\" (referred to here as \\\"HTA\\n\\nrevenues\\\"). P.R. Highways & Transp. Authority, Resolution No. 98-\\n\\n06, at 58 [hereinafter 1998 Resolution]; see also P.R. Highways\\n\\n& Transp. Authority, Resolution No. 68-18, at 50 [hereinafter 1968\\n\\nResolution]. The HTA revenues include, among other funds: (1) \\\"all\\n\\nmoneys received by [HTA] on account of the crude oil tax allocated\\n\\nto [HTA] by Act No. 34\\\"; (2) proceeds from gasoline and oil taxes\\n\\nand from annual motor-vehicle license fees; (3) \\\"any tolls or other\\n\\ncharges imposed by [HTA]\\\"; and (4) \\\"the proceeds of any other\\n\\ntaxes, fees or charges\\\" that the Puerto Rico legislature authorizes\\n\\nfor payment of \\\"principal of and interest on bonds or other\\n\\nobligations of [HTA].\\\" 1998 Resolution at 7, 13; see also 1968\\n\\nResolution at 11 (employing a similar definition of HTA revenues).\\n\\n The bond resolutions require HTA to deposit the HTA\\n\\nrevenues on a monthly basis with a fiscal agent, the Bank of New\\n\\nYork Mellon, which holds the funds in trust for bondholders and\\n\\nthen pays bondholders in accordance with the terms of the\\n\\nresolutions. 1998 Resolution at 47; 1968 Resolution at 42. The\\n\\nresolutions further provide that the bondholders' interest in the\\n\\nHTA revenues is paramount, subject to one qualification:\\n\\nCommonwealth law requires that revenues be used to first pay\\n\\ninterest and amortization of the public debt (i.e., general\\n\\nobligation bonds) in years in which other available resources are\\n\\n\\n\\n\\n - 5 -\\n\\finsufficient to meet appropriations. See P.R. Const. art. VI,\\n\\n§ 8; see also 1998 Resolution at 19; 1968 Resolution at 17.1\\n\\n A succession of related events upset the parties'\\n\\ncontractual arrangement concerning the HTA revenues, giving rise\\n\\nto this lawsuit. In brief, the Commonwealth and Governor of Puerto\\n\\nRico promulgated a series of laws and executive orders -- known as\\n\\nthe \\\"Moratorium Laws and Orders\\\" -- that halted the flow of\\n\\nrevenues from the Commonwealth and HTA to the fiscal agent for\\n\\npayment to bondholders and, instead, directed those revenues to\\n\\nthe payment of other, ordinary Commonwealth expenses.2 The\\n\\nMoratorium Laws and Orders also stayed creditor remedies to enforce\\n\\ntheir contractual rights under the bondholder resolutions.\\n\\n\\n\\n\\n 1Ambac alleges that the HTA revenues fall within the category\\nof \\\"special revenues\\\" as defined in the municipal-bankruptcy code,\\nsee 11 U.S.C. § 902(2); 48 U.S.C. § 2161(a) (incorporating 11\\nU.S.C. § 902 into PROMESA), and that it has a security interest in\\nall such revenues. Intervenor the Official Committee of Unsecured\\nCreditors of All Puerto Rico Title III Debtors (Other than COFINA)\\ncontests at least the latter point and urges us to construe Ambac's\\nsecurity interest narrowly as extending only to HTA revenues\\nactually deposited with the fiscal agent. As will become evident,\\nthe resolution of this issue is not necessary to settle the\\nimmediate appeal.\\n 2See, e.g., Puerto Rico Emergency Moratorium and Financial\\nRehabilitation Act, P.R. Laws Ann. tit. 3, §§ 9282–9288 (codifying\\nthen-Governor Alejandro García Padilla's moratorium orders and\\ngranting him the authority to suspend the Commonwealth's debt\\nobligations); see also Puerto Rico Financial Emergency and Fiscal\\nResponsibility Act, P.R. Laws Ann. tit. 3, §§ 9431–9437\\n(indefinitely continuing the moratorium orders).\\n\\n\\n - 6 -\\n\\f Thereafter, the Financial Oversight and Management Board\\n\\nfor Puerto Rico (\\\"Oversight Board\\\") -- established by PROMESA, 48\\n\\nU.S.C. §§ 2101–2241, and tasked with \\\"provid[ing] a method for\\n\\n[Puerto Rico] to achieve fiscal responsibility and access to the\\n\\ncapital markets,\\\" id. § 2121(a) -- certified a \\\"Fiscal Plan\\\" for\\n\\nPuerto Rico to which all Commonwealth laws and budgets must\\n\\nconform, see id. §§ 2141(c), 2144(a)–(c). The Fiscal Plan calls\\n\\nfor the continued diversion of HTA revenues over the course of the\\n\\nnext decade.3 The Oversight Board, pursuant to its authority under\\n\\nsection 304 of PROMESA, id. § 2164(a), subsequently initiated\\n\\nTitle III debt-adjustment proceedings on behalf of HTA, which also\\n\\ntriggered an automatic stay of actions to collect preexisting debts\\n\\nfrom the agency, 11 U.S.C. § 362(a)(1), (5); 48 U.S.C. § 2161(a)\\n\\n(incorporating 11 U.S.C. § 362). The Puerto Rico Fiscal Agency\\n\\nand Financial Advisory Authority (AAFAF) then ordered the Bank of\\n\\nNew York Mellon, as fiscal agent, to halt payments to HTA\\n\\nbondholders, reasoning that the funds held in trust are still the\\n\\nproperty of the Commonwealth and their application to HTA bonds\\n\\nwould violate the automatic stay. In July 2017, HTA defaulted on\\n\\na bond payment in the amount of $219 million.\\n\\n Ambac, which is both a holder and insurer of the\\n\\ndefaulted HTA bonds, commenced this adversary action in the so-\\n\\n\\n 3In April 2018, the Oversight Board certified a new Fiscal\\nPlan that continues the diversion of HTA revenues.\\n\\n\\n - 7 -\\n\\fcalled \\\"Title III court,\\\" bringing Contracts Clause, Takings\\n\\nClause, Due Process Clause, preemption, and statutory challenges\\n\\nto the Commonwealth's actions. Ambac asked that court to declare\\n\\nas null the Moratorium Laws and Orders and the Fiscal Plan, and it\\n\\nsought a negative injunction preventing the Commonwealth from\\n\\ncontinuing to impair the flow of HTA revenues to bondholders. The\\n\\nTitle III court carefully reviewed and rejected all of Ambac's\\n\\nrequested relief, dismissing the complaint with prejudice. See\\n\\nAmbac Assurance Corp. v. Puerto Rico (In re Fin. Oversight & Mgmt.\\n\\nBd. for P.R.), 297 F. Supp. 3d 269 (D.P.R. 2018). Ambac then filed\\n\\nthis timely appeal.\\n\\n II.\\n\\n Two sections of PROMESA prevent the Title III court from\\n\\ngranting the relief that Ambac requests in this adversary\\n\\nproceeding.\\n\\n A.\\n\\n Section 106 of PROMESA provides: \\\"There shall be no\\n\\njurisdiction in any United States district court to review\\n\\nchallenges to the Oversight Board's certification determinations\\n\\nunder this chapter.\\\" 48 U.S.C. § 2126(e). As this court recently\\n\\nexplained, \\\"PROMESA grants the Board exclusive authority to\\n\\ncertify Fiscal Plans and Territory Budgets for Puerto Rico. It\\n\\nthen insulates those certification decisions from judicial\\n\\nreview . . . .\\\" Méndez-Núñez v. Fin. Oversight & Mgmt. Bd. for\\n\\n\\n - 8 -\\n\\fP.R., (In re Fin. Oversight & Mgmt. Bd. for P.R.), 916 F.3d 98,\\n\\n112 (1st Cir. 2019). In its First Amended Complaint, Ambac\\n\\nrepeatedly requests \\\"injunctive relief invalidating the Oversight\\n\\nBoard's certification of the Fiscal Plan.\\\" This relief is plainly\\n\\nprecluded as a result of section 106 and our holding in Méndez-\\n\\nNúñez.\\n\\n B.\\n\\n Section 305 of PROMESA states, in relevant part:\\n\\n [N]otwithstanding any power of the court, unless the\\n Oversight Board consents or the plan so provides, the\\n court may not, by any stay, order, or decree, in the\\n case or otherwise, interfere with -- (1) any of the\\n political or governmental powers of the debtor; (2) any\\n of the property or revenues of the debtor; or (3) the\\n use or enjoyment by the debtor of any income-producing\\n property.\\n\\n48 U.S.C. § 2165. The provision mimics, in all pertinent respects,\\n\\nthe analogous section 904 of the municipal-bankruptcy code. See\\n\\n11 U.S.C. § 904.\\n\\n Ambac seeks declaratory and injunctive relief that would\\n\\nrequire the Title III court to directly interfere with the\\n\\n\\\"political or governmental powers\\\" and \\\"property or revenues\\\" of\\n\\nthe Commonwealth and HTA, at least as to those HTA revenues that\\n\\nhave yet to be transferred to the fiscal agent and remain in the\\n\\npossession of the Commonwealth. Specifically, Ambac requests\\n\\ninjunctive relief that would compel the Commonwealth's remittance\\n\\nof toll revenues, vehicles fees, and excise taxes to HTA and then\\n\\n\\n\\n - 9 -\\n\\fto the Bank of New York Mellon for payment to bondholders. Ambac\\n\\nhopes to achieve much the same end by obtaining a declaration that\\n\\nthe Commonwealth's continued divergence of these funds pursuant to\\n\\nthe Moratorium Laws and Orders and the Fiscal Plan is\\n\\nunconstitutional, preempted under section 303 of PROMESA, and in\\n\\nviolation of sections 922(d) and 928(a) of the municipal-\\n\\nbankruptcy code (as incorporated into PROMESA via 48 U.S.C.\\n\\n§ 2161(a)).\\n\\n In Financial Oversight and Management Board for Puerto\\n\\nRico v. Ad Hoc Group of Puerto Rico Electric Power Authority\\n\\nBondholders, we held that although section 305 prohibits a\\n\\nTitle III court from \\\"directly interfering with the listed powers\\n\\nand properties of [a Commonwealth agency],\\\" it does not bar a\\n\\nTitle III court from granting a reprieve from the automatic stay\\n\\nunder 11 U.S.C. § 362 to allow another court, pursuant to\\n\\nCommonwealth law, to place a Commonwealth entity into\\n\\nreceivership. PREPA, 899 F.3d 13, 19 (1st Cir. 2018). In doing\\n\\nso, we recognized that granting such relief would require a\\n\\nTitle III court to \\\"merely stand[] aside\\\" to \\\"allow[] the processes\\n\\nof . . . territorial law to operate in normal course.\\\" Id. at 21.\\n\\nHere, by contrast, Ambac's requested relief would require the Title\\n\\nIII court itself to direct the Commonwealth's use of its revenues\\n\\nand property in a manner that contravenes the expressed will of\\n\\nthe Commonwealth legislature, the Governor of Puerto Rico, and the\\n\\n\\n - 10 -\\n\\fOversight Board. On its face, the text of section 305 bars the\\n\\nTitle III court from granting Ambac such relief absent consent\\n\\nfrom the Oversight Board or unless the Fiscal Plan so provides.\\n\\nSee 48 U.S.C. § 2165.\\n\\n This conclusion accords with our recent decision in\\n\\nAurelius Capital Master, Ltd. v. Puerto Rico, in which we held\\n\\nthat section 305 bars the Title III court from preventing the\\n\\nCommonwealth from using certain Commonwealth revenues for the\\n\\npayment of general-obligation debt. 919 F.3d 638, 648–49 (1st\\n\\nCir. 2019). It also accords with how courts have interpreted the\\n\\nanalogous section 904 of the municipal-bankruptcy code. See Lyda\\n\\nv. City of Detroit (In re City of Detroit), 841 F.3d 684, 696 (6th\\n\\nCir. 2016) (holding that section 904 prohibits the court\\n\\noverseeing Detroit's bankruptcy from awarding residents an\\n\\ninjunction that would have restored water service in the city);\\n\\nAss'n of Retired Emps. of Stockton v. City of Stockton (In re City\\n\\nof Stockton), 478 B.R. 8, 20–22 (Bankr. E.D. Cal. 2012) (concluding\\n\\nthat section 904 precludes enjoining the city from implementing a\\n\\nreduction in retiree health benefits); see generally 6 Collier on\\n\\nBankruptcy ¶ 904.01 (Richard Levin & Henry J. Sommer eds. 16th ed.\\n\\n2018) [hereinafter Collier] (\\\"[T]he prohibition of this section is\\n\\nabsolute. . . . The question is . . . whether the order improperly\\n\\ninterferes with the political or governmental affairs or property\\n\\n\\n\\n\\n - 11 -\\n\\fof the debtor. If it does, then no matter what authority is used\\n\\nto support it, the order runs afoul of section 904.\\\").\\n\\n The context in which Congress passed section 904\\n\\nprovides further credence to our reading of section 305. In Ashton\\n\\nv. Cameron County Water Improvement District, the Supreme Court\\n\\nstruck down a predecessor to the modern municipal-bankruptcy\\n\\nstatute, reasoning that it allowed a federal bankruptcy court to\\n\\nimpermissibly intrude upon the sovereignty of states and their\\n\\nsubdivisions. 298 U.S. 513, 531 (1936) (\\\"If obligations of states\\n\\nor their political subdivisions may be subjected to the\\n\\ninterference here attempted, they are no longer free to manage\\n\\ntheir own affairs . . . .\\\"). By including section 904 (and its\\n\\ncorollary, 11 U.S.C. § 903, which explicitly reserves power to the\\n\\nstates to control municipalities within their territories),\\n\\nCongress intended to give the bankruptcy courts \\\"only enough\\n\\njurisdiction to provide meaningful assistance to municipalities\\n\\nthat require it, not to address the policy matters that such\\n\\nmunicipalities control.\\\" Lyda, 841 F.3d at 695 (quoting In re\\n\\nAddison Cmty. Hosp. Auth., 175 B.R. 646, 649 (Bankr. E.D. Mich.\\n\\n1994)); see also 6 Collier ¶ 904.LH.\\n\\n Notwithstanding the foregoing, Ambac offers four reasons\\n\\nwhy section 305 should not preclude us from affording it the\\n\\ninjunctive and declaratory relief that it seeks in this case.\\n\\n\\n\\n\\n - 12 -\\n\\f First, Ambac argues that nothing in section 305\\n\\naddresses pledged-special-revenue bonds in Title III proceedings.\\n\\nAccordingly, it reasons, sections 922(d) and 928(a) control the\\n\\ntreatment and disposition of pledged special revenues in Title III\\n\\nbankruptcy cases, and section 305 therefore poses no bar to the\\n\\nTitle III court's ability to grant its requested relief.\\n\\n Section 922(d) provides that \\\"[n]otwithstanding\\n\\nsection 362 of this title and subsection (a) of this section, a\\n\\npetition filed under this chapter does not operate as a stay of\\n\\napplication of pledged special revenues . . . to payment of\\n\\nindebtedness secured by such revenues.\\\" 11 U.S.C. § 922(d). And\\n\\nsection 928(a) states: \\\"Notwithstanding section 552(a) of this\\n\\ntitle . . . , special revenues acquired by the debtor after the\\n\\ncommencement of the case shall remain subject to any lien resulting\\n\\nfrom any security agreement entered into by the debtor before the\\n\\ncommencement of the case.\\\" Id. § 928(a). It is true that\\n\\nsection 305, in contrast to these provisions, does not\\n\\nspecifically mention \\\"pledged special revenues.\\\" But neither does\\n\\nit explicitly reference any other type of municipal debt or\\n\\nsubstantive form of interference with a debtor's political powers,\\n\\nproperty, or revenues. Analogously, though a sign might simply\\n\\nstate \\\"No Smoking Allowed,\\\" no one would reasonably construe such\\n\\na prohibition as permitting an individual to light up a cigar\\n\\nmerely because the sign makes no specific reference to rolled,\\n\\n\\n - 13 -\\n\\ftobacco-filled cartridges of the larger, unfiltered variety.\\n\\nRather, any reasonable reader would conclude that the broad\\n\\nlanguage fairly communicates a reach that plainly encompasses the\\n\\nnarrower application; likewise, Ambac's requested relief that\\n\\nwould direct the Commonwealth to turn over its property to\\n\\nbondholders falls within the ambit of section 305's sweeping\\n\\nlanguage even if we assume that the funds in question are pledged\\n\\nspecial revenues within the meaning of sections 922(d) and 928(a).\\n\\n Of course, if section 305 directly conflicted with\\n\\nsections 922(d) or 928(a) of the municipal bankruptcy code, one\\n\\nmight turn to \\\"the ancient canon of interpretation . . . generalia\\n\\nspecialibus non derogant (the 'specific governs the general').\\\"\\n\\nAurelius Inv., LLC v. Puerto Rico, 915 F.3d 838, 851 (1st Cir.\\n\\n2019). Even then, though, section 305’s preface that its terms\\n\\napply \\\"notwithstanding any power of the court\\\" might well render\\n\\nthat rule of construction inapplicable. In any event, there is no\\n\\nreal conflict between the sections pertaining to pledged special\\n\\nrevenues and section 305. The former two provisions address the\\n\\nrelationship between the automatic stay and the application of\\n\\npledged special revenues to a debt. They say nothing at all about\\n\\nthe subject of section 305, i.e., whether the Title III court\\n\\nitself has the power to require a debtor to turn over certain\\n\\nrevenues to a creditor. See Assured Guar. Corp. v. Fin. Oversight\\n\\n\\n\\n\\n - 14 -\\n\\f& Mgmt. Bd. for P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.),\\n\\n919 F.3d 121, 131 n.12 (1st Cir. 2019).\\n\\n Second, Ambac alleges that our interpretation of\\n\\nsection 305 would \\\"effectively wipe out\\\" sections 922(d) and\\n\\n928(a) of the municipal bankruptcy code. It argues that these\\n\\nprovisions mandate the debtor's continued payment of special\\n\\nrevenues pursuant to the terms of the bondholder agreements and\\n\\nthat section 922(d) excepts from the automatic stay a creditor's\\n\\naction seeking to enforce that mandate. Our recent decision in\\n\\nAssured Guaranty rejected both of these contentions. See Assured\\n\\nGuar. Corp., 919 F.3d at 127–32. Section 928(a) simply does what\\n\\nit says: It orders that \\\"special revenues acquired by the debtor\\n\\nafter the commencement of the case shall remain subject to any\\n\\nlien resulting from any security agreement entered into by the\\n\\ndebtor before the commencement of the case.\\\" 11 U.S.C. § 928(a);\\n\\nsee also Assured Guar. Corp., 919 F.3d at 127–29. Section 922(d),\\n\\nin turn, does provide an exception to the automatic stay, but not\\n\\nas broadly as Ambac contends. The automatic stay encompasses a\\n\\nlarge universe of creditor actions that might affect the debtor,\\n\\nincluding not just lawsuits and enforcement actions, but also \\\"any\\n\\npost-petition collection activities against the debtor.\\\" S. Rep.\\n\\nNo. 100-506, at 11 (1988) (emphasis added); see also 11 U.S.C.\\n\\n§ 362(a)(3) (barring \\\"any act . . . to exercise control over\\n\\nproperty of the [debtor]\\\"); 11 U.S.C. § 362(a)(4) (prohibiting\\n\\n\\n - 15 -\\n\\f\\\"any act to create, perfect, or enforce any lien against property\\n\\nof the [debtor]\\\"); 11 U.S.C. § 362(a)(6) (proscribing \\\"any act to\\n\\ncollect, assess, or recover a claim against the debtor that arose\\n\\nbefore the commencement of the [bankruptcy] case\\\"). This broad\\n\\nuniverse of stayed actions was understood to include a secured\\n\\ncreditor's application of collateral in its possession to the\\n\\ndebtor's outstanding debt. See, e.g., 3 Collier ¶ 362.03\\n\\n(\\\"[I]nnocent conduct such as the cashing of checks received from\\n\\naccount debtors of accounts assigned as security may be a technical\\n\\nviolation [of section 362(a)(6)].\\\"); id. (\\\"[T]he stay applies to\\n\\nsecured creditors in possession of collateral and to collateral in\\n\\npossession of a custodian.\\\"); see also S. Rep. No. 100-506, at 11\\n\\n(\\\"The automatic stay of Bankruptcy Code Section 362 is extremely\\n\\nbroad, preventing any post-petition collection activities against\\n\\nthe debtor, including application of the debtor's funds held by a\\n\\nsecured lender to secure indebtedness.\\\" (emphasis added));\\n\\nMetromedia Fiber Network Servs. v. Lexent, Inc. (In re Metromedia\\n\\nFiber Network, Inc.), 290 B.R. 487, 493 (Bankr. S.D.N.Y. 2003); In\\n\\nre Reed, 102 B.R. 243, 245 (Bankr. E.D. Okla. 1989). Congress in\\n\\nsection 922(d) eliminated any possibility that the stay would\\n\\nprevent the \\\"application of pledged special revenues . . . to\\n\\npayment of indebtedness.\\\" 11 U.S.C. § 922(d). But nothing in\\n\\nthat language suggests that Congress also excepted the plethora of\\n\\n\\n\\n\\n - 16 -\\n\\fother actions to which the automatic stay applies, most obviously\\n\\nand notably suits to compel payment.\\n\\n Ambac next alleges that section 305 does not prevent the\\n\\nTitle III court from granting its requested injunctive and\\n\\ndeclaratory relief because the Oversight Board consented to such\\n\\ninterference by initiating Title III bankruptcy proceedings. But\\n\\nin PREPA we rejected the argument that the mere filing of a\\n\\nTitle III petition might constitute such consent, reasoning that\\n\\nto rule otherwise would be to \\\"render section 305 a nullity.\\\"\\n\\nPREPA, 899 F.3d at 19. We see no principled reason to reach a\\n\\ndifferent conclusion just because the proposed interference in\\n\\nthis case may involve pledged special revenues.\\n\\n Finally, Ambac argues that its requested declaratory\\n\\nrelief is not actually coercive and, thus, would not impermissibly\\n\\ninterfere with the governmental affairs or property of HTA and the\\n\\nCommonwealth. However, we declined to endorse this argument in\\n\\nanother recent PROMESA case, see Aurelius Capital Masters, Ltd.,\\n\\n919 F.3d at 648, as did the Sixth Circuit in the municipal-\\n\\nbankruptcy setting, see Lyda, 841 F.3d at 696 (\\\"Preliminary or\\n\\npermanent injunctions directing [the City] to stop terminations or\\n\\nto provide water service . . . necessarily interfere[] . . . . A\\n\\ndeclaration that [the City's] practices are illegal or\\n\\nunconstitutional does the same.\\\" (citation omitted) (internal\\n\\nquotation marks omitted)).\\n\\n\\n - 17 -\\n\\f At oral argument, counsel for Ambac also raised the\\n\\npossibility that our interpretation of section 305 would raise due\\n\\nprocess concerns because Ambac would be left without a venue in\\n\\nwhich to bring its constitutional claims. But nothing in our\\n\\nholding today suggests that Ambac cannot seek traditional stay\\n\\nrelief pursuant to 11 U.S.C. § 362 and raise its constitutional\\n\\nand statutory arguments in a separate action. As we explained in\\n\\nPREPA, section 305 \\\"only bar[s] the Title III court itself from\\n\\ndirectly interfering with the debtor's powers or property.\\\" 899\\n\\nF.3d at 21. It does not, however, impose any such restraint on\\n\\nanother court.\\n\\n Accordingly, we hold that the Title III court lacks the\\n\\nauthority to grant the declaratory and injunctive relief that Ambac\\n\\nseeks in this case.4\\n\\n III.\\n\\n For the foregoing reasons, the judgment is affirmed.\\n\\n\\n\\n 4 In its First Amended Complaint, Ambac alleges that the Bank\\nof New York Mellon has not applied approximately $69 million in\\nfunds that it is holding in trust for HTA bondholders, citing\\nAAFAF's letter directing it to retain these funds. And in one\\ncursory footnote in its brief, Ambac suggests that section 305\\nmight not bar the Title III court from ordering the disbursement\\nof pledged special revenues that are already in the hands of the\\nfiscal agent. Ambac, however, does nothing further to develop\\nthis argument, so we treat it as waived and we do not consider it\\nin this appeal. See United States v. Zannino, 895 F.2d 1, 17 (1st\\nCir. 1990) (\\\"[I]ssues adverted to in a perfunctory manner,\\nunaccompanied by some effort at developed argumentation, are\\ndeemed waived.\\\").\\n\\n\\n - 18 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4409695/\", \"author_raw\": \"KAYATTA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"LIPEZ"},"judge3":{"kind":"string","value":"KAYATTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4632442/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In RE: The FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as Representative for the Commonwealth of Puerto Rico; The Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority, Debtors. Ambac Assurance Corporation, Plaintiff, Appellant, v. Commonwealth of Puerto Rico, Through the Secretary of Justice; Financial Oversight and Management Board; Puerto Rico Fiscal Agency and Financial Advisory Authority, Through the Secretary of Justice; Puerto Rico Highways and Transportation Authority, Through the Secretary of Justice; Ricardo Rossello Nevares, Through the Secretary of Justice; Raul Maldonado Gautier, Through the Secretary of Justice; Jose Ivan Marrero-Rosado; Jose B. Carrion, III; Christian Sobrino Vega; Andrew G. Biggs; Carlos M. Garcia ; Arthur J. Gonzalez; Jose R. Gonzalez ; Ana J. Matosantos; David A. Skeel, Jr.; Elias Sanchez, Defendants, Appellees, Official Committee of Unsecured Creditors, Intervenor, John Does 1-12, Defendants.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1214\n\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\nRICO, as representative for the Commonwealth of Puerto Rico; THE\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as\n representative for the Puerto Rico Highways and Transportation\n Authority,\n\n Debtors.\n\n\n\n AMBAC ASSURANCE CORPORATION,\n\n Plaintiff, Appellant,\n\n v.\n\n COMMONWEALTH OF PUERTO RICO, through the Secretary of Justice;\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD; PUERTO RICO FISCAL\n AGENCY AND FINANCIAL ADVISORY AUTHORITY, through the Secretary\n of Justice; PUERTO RICO HIGHWAYS AND TRANSPORTATION AUTHORITY,\n through the Secretary of Justice; RICARDO ROSSELLO NEVARES,\n through the Secretary of Justice; RAUL MALDONADO GAUTIER,\nthrough the Secretary of Justice; JOSE IVAN MARRERO-ROSADO; JOSE\nB. CARRION, III; CHRISTIAN SOBRINO VEGA; ANDREW G. BIGGS; CARLOS\n M. GARCIA; ARTHUR J. GONZALEZ; JOSE R. GONZALEZ; ANA J.\n MATOSANTOS; DAVID A. SKEEL, JR.; ELIAS SANCHEZ,\n\n Defendants, Appellees,\n\n OFFICIAL COMMITTEE OF UNSECURED CREDITORS,\n\n Intervenor,\n\n JOHN DOES 1–12,\n\n Defendants.\n\f APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Laura Taylor Swain, U.S. District Judge*]\n\n\n Before\n\n Torruella, Lipez, and Kayatta,\n Circuit Judges.\n\n\n Atara Miller, with whom Dennis F. Dunne, Andrew M. Leblanc,\nGrant F. Mainland, Milbank, Tweed, Hadley & McCloy LLP, Roberto A.\nCámara-Fuertes, and Ferraiouli LLC were on brief, for appellant.\n Mark C. Ellenberg, Howard R. Hawkins, Jr., Lary Stromfeld,\nEllen V. Holloman, Gillian Groarke Burns, Thomas J. Curtin, Casey\nServais, Cadwalder, Wickersham & Taft LLP, Heriberto Burgos Pérez,\nRicardo F. Casellas-Sánchez, Diana Pérez-Seda, Casellas Alcover &\nBurgos, Maria E. Picó, Rexach & Picó, CSP, Martin A. Sosland, Jason\nW. Callen, and Butler Snow LLP on brief for Assured Guaranty\nCorporation, Assured Guaranty Municipal Corporation, and Financial\nGuaranty Insurance Company, amici curiae.\n Vincent Levy, Daniel M. Sullivan, Margot Hoppin, Evan H.\nStein, and Holwell Shuster & Goldberg LLP on brief for Professor\nJohn W. Ely, Jr., amicus curiae.\n Bruce R. Zirinsky and Zirinsky Law Partners LLC on brief for\nRepresentative Rob Bishop, amicus curiae.\n Martin J. Bienenstock, with whom Stephen L. Ratner, Mark D.\nHarris, Michael A. Firestein, Lary Alan Rappaport, Timothy W.\nMungovan, John E. Roberts, Proskauer Rose LLP, Hermann D. Bauer-\nAlvarez, and O'Neill & Borges LLC were on brief, for appellee\nFinancial Oversight and Management Board for Puerto Rico.\n Peter M. Friedman, with whom Isaías Sánchez-Báez, Solicitor\nGeneral of Puerto Rico, Carlos Lugo-Fiol, John J. Rapisardi,\nElizabeth L. McKeen, Ashley M. Pavel, O'Melveny & Myers LLP, Luis\nMarini, and Marini Pietrantoni Muñoz, LLC were on brief, for\nappellees the Puerto Rico Fiscal Agency and Financial Advisory\nAuthority, Christian Sobrino Vega, Ricardo Rosselló Nevares, Raul\nMaldonado Gautier, and Jose Ivan Marrero Rosado.\n Paul S. Samson, Riemer & Braunstein LLP, Gregory E. Garman,\nErick T. Gjerdingen, and Garman Turner Gordon LLP on brief for\nCongressman Raúl Grijalva, ranking member of the House Committee\non Natural Resources, and Congresswoman Nydia Velázquez, member of\n\n\n *Of the Southern District of New York, sitting by designation.\n\fthe House Committee on Natural Resources, amici curiae.\n Luc A. Despins, with whom Nicholas A. Bassett, Paul Hastings\nLLP, Juan J. Casillas Ayala, and Casillas, Santiago & Torres LLC\nwere on brief, for the Official Committee of Unsecured Creditors\nof All Puerto Rico Title III Debtors (Other than COFINA).\n\n\n June 24, 2019\n\f KAYATTA, Circuit Judge. Ambac is a financial guaranty\n\ninsurer and individual holder of Puerto Rico Highways and\n\nTransportation Authority (HTA) bonds. In this Title III adversary\n\nproceeding arising within HTA's debt-adjustment proceedings\n\npursuant to the Puerto Rico Oversight, Management, and Economic\n\nStability Act (PROMESA), Ambac brings constitutional and statutory\n\nchallenges to measures the Commonwealth of Puerto Rico has taken\n\nto block payments to holders of HTA bonds. Because the Title III\n\ncourt lacks the authority to grant the declaratory and injunctive\n\nrelief that Ambac seeks, we affirm the dismissal of Ambac's claims.\n\n I.\n\n Because this appeal comes before us from the dismissal\n\nof Ambac's constitutional and statutory claims, \"we take as true\n\nthe facts presented in [Ambac's] complaint and draw all reasonable\n\ninferences in [its] favor.\" Maloy v. Ballori-Lage, 744 F.3d 250,\n\n251 (1st Cir. 2014).\n\n HTA develops, operates, and maintains Puerto Rico's\n\nhighways and transportation infrastructure. It has the ability to\n\nissue bonds to finance its operations pursuant to the Puerto Rico\n\nHighways and Transportation Authority Act, P.R. Laws Ann. tit. 9,\n\n§ 2012. In 1968 and 1998, HTA adopted resolutions issuing bonds.\n\nThe resolutions set forth the contractual relationship between HTA\n\nand bondholders and \"pledge[]\" for the payment of \"principal,\n\ninterest and premiums\" certain \"[r]evenues\" and \"funds received by\n\n\n - 4 -\n\f[HTA] . . . from the Commonwealth\" (referred to here as \"HTA\n\nrevenues\"). P.R. Highways & Transp. Authority, Resolution No. 98-\n\n06, at 58 [hereinafter 1998 Resolution]; see also P.R. Highways\n\n& Transp. Authority, Resolution No. 68-18, at 50 [hereinafter 1968\n\nResolution]. The HTA revenues include, among other funds: (1) \"all\n\nmoneys received by [HTA] on account of the crude oil tax allocated\n\nto [HTA] by Act No. 34\"; (2) proceeds from gasoline and oil taxes\n\nand from annual motor-vehicle license fees; (3) \"any tolls or other\n\ncharges imposed by [HTA]\"; and (4) \"the proceeds of any other\n\ntaxes, fees or charges\" that the Puerto Rico legislature authorizes\n\nfor payment of \"principal of and interest on bonds or other\n\nobligations of [HTA].\" 1998 Resolution at 7, 13; see also 1968\n\nResolution at 11 (employing a similar definition of HTA revenues).\n\n The bond resolutions require HTA to deposit the HTA\n\nrevenues on a monthly basis with a fiscal agent, the Bank of New\n\nYork Mellon, which holds the funds in trust for bondholders and\n\nthen pays bondholders in accordance with the terms of the\n\nresolutions. 1998 Resolution at 47; 1968 Resolution at 42. The\n\nresolutions further provide that the bondholders' interest in the\n\nHTA revenues is paramount, subject to one qualification:\n\nCommonwealth law requires that revenues be used to first pay\n\ninterest and amortization of the public debt (i.e., general\n\nobligation bonds) in years in which other available resources are\n\n\n\n\n - 5 -\n\finsufficient to meet appropriations. See P.R. Const. art. VI,\n\n§ 8; see also 1998 Resolution at 19; 1968 Resolution at 17.1\n\n A succession of related events upset the parties'\n\ncontractual arrangement concerning the HTA revenues, giving rise\n\nto this lawsuit. In brief, the Commonwealth and Governor of Puerto\n\nRico promulgated a series of laws and executive orders -- known as\n\nthe \"Moratorium Laws and Orders\" -- that halted the flow of\n\nrevenues from the Commonwealth and HTA to the fiscal agent for\n\npayment to bondholders and, instead, directed those revenues to\n\nthe payment of other, ordinary Commonwealth expenses.2 The\n\nMoratorium Laws and Orders also stayed creditor remedies to enforce\n\ntheir contractual rights under the bondholder resolutions.\n\n\n\n\n 1Ambac alleges that the HTA revenues fall within the category\nof \"special revenues\" as defined in the municipal-bankruptcy code,\nsee 11 U.S.C. § 902(2); 48 U.S.C. § 2161(a) (incorporating 11\nU.S.C. § 902 into PROMESA), and that it has a security interest in\nall such revenues. Intervenor the Official Committee of Unsecured\nCreditors of All Puerto Rico Title III Debtors (Other than COFINA)\ncontests at least the latter point and urges us to construe Ambac's\nsecurity interest narrowly as extending only to HTA revenues\nactually deposited with the fiscal agent. As will become evident,\nthe resolution of this issue is not necessary to settle the\nimmediate appeal.\n 2See, e.g., Puerto Rico Emergency Moratorium and Financial\nRehabilitation Act, P.R. Laws Ann. tit. 3, §§ 9282–9288 (codifying\nthen-Governor Alejandro García Padilla's moratorium orders and\ngranting him the authority to suspend the Commonwealth's debt\nobligations); see also Puerto Rico Financial Emergency and Fiscal\nResponsibility Act, P.R. Laws Ann. tit. 3, §§ 9431–9437\n(indefinitely continuing the moratorium orders).\n\n\n - 6 -\n\f Thereafter, the Financial Oversight and Management Board\n\nfor Puerto Rico (\"Oversight Board\") -- established by PROMESA, 48\n\nU.S.C. §§ 2101–2241, and tasked with \"provid[ing] a method for\n\n[Puerto Rico] to achieve fiscal responsibility and access to the\n\ncapital markets,\" id. § 2121(a) -- certified a \"Fiscal Plan\" for\n\nPuerto Rico to which all Commonwealth laws and budgets must\n\nconform, see id. §§ 2141(c), 2144(a)–(c). The Fiscal Plan calls\n\nfor the continued diversion of HTA revenues over the course of the\n\nnext decade.3 The Oversight Board, pursuant to its authority under\n\nsection 304 of PROMESA, id. § 2164(a), subsequently initiated\n\nTitle III debt-adjustment proceedings on behalf of HTA, which also\n\ntriggered an automatic stay of actions to collect preexisting debts\n\nfrom the agency, 11 U.S.C. § 362(a)(1), (5); 48 U.S.C. § 2161(a)\n\n(incorporating 11 U.S.C. § 362). The Puerto Rico Fiscal Agency\n\nand Financial Advisory Authority (AAFAF) then ordered the Bank of\n\nNew York Mellon, as fiscal agent, to halt payments to HTA\n\nbondholders, reasoning that the funds held in trust are still the\n\nproperty of the Commonwealth and their application to HTA bonds\n\nwould violate the automatic stay. In July 2017, HTA defaulted on\n\na bond payment in the amount of $219 million.\n\n Ambac, which is both a holder and insurer of the\n\ndefaulted HTA bonds, commenced this adversary action in the so-\n\n\n 3In April 2018, the Oversight Board certified a new Fiscal\nPlan that continues the diversion of HTA revenues.\n\n\n - 7 -\n\fcalled \"Title III court,\" bringing Contracts Clause, Takings\n\nClause, Due Process Clause, preemption, and statutory challenges\n\nto the Commonwealth's actions. Ambac asked that court to declare\n\nas null the Moratorium Laws and Orders and the Fiscal Plan, and it\n\nsought a negative injunction preventing the Commonwealth from\n\ncontinuing to impair the flow of HTA revenues to bondholders. The\n\nTitle III court carefully reviewed and rejected all of Ambac's\n\nrequested relief, dismissing the complaint with prejudice. See\n\nAmbac Assurance Corp. v. Puerto Rico (In re Fin. Oversight & Mgmt.\n\nBd. for P.R.), 297 F. Supp. 3d 269 (D.P.R. 2018). Ambac then filed\n\nthis timely appeal.\n\n II.\n\n Two sections of PROMESA prevent the Title III court from\n\ngranting the relief that Ambac requests in this adversary\n\nproceeding.\n\n A.\n\n Section 106 of PROMESA provides: \"There shall be no\n\njurisdiction in any United States district court to review\n\nchallenges to the Oversight Board's certification determinations\n\nunder this chapter.\" 48 U.S.C. § 2126(e). As this court recently\n\nexplained, \"PROMESA grants the Board exclusive authority to\n\ncertify Fiscal Plans and Territory Budgets for Puerto Rico. It\n\nthen insulates those certification decisions from judicial\n\nreview . . . .\" Méndez-Núñez v. Fin. Oversight & Mgmt. Bd. for\n\n\n - 8 -\n\fP.R., (In re Fin. Oversight & Mgmt. Bd. for P.R.), 916 F.3d 98,\n\n112 (1st Cir. 2019). In its First Amended Complaint, Ambac\n\nrepeatedly requests \"injunctive relief invalidating the Oversight\n\nBoard's certification of the Fiscal Plan.\" This relief is plainly\n\nprecluded as a result of section 106 and our holding in Méndez-\n\nNúñez.\n\n B.\n\n Section 305 of PROMESA states, in relevant part:\n\n [N]otwithstanding any power of the court, unless the\n Oversight Board consents or the plan so provides, the\n court may not, by any stay, order, or decree, in the\n case or otherwise, interfere with -- (1) any of the\n political or governmental powers of the debtor; (2) any\n of the property or revenues of the debtor; or (3) the\n use or enjoyment by the debtor of any income-producing\n property.\n\n48 U.S.C. § 2165. The provision mimics, in all pertinent respects,\n\nthe analogous section 904 of the municipal-bankruptcy code. See\n\n11 U.S.C. § 904.\n\n Ambac seeks declaratory and injunctive relief that would\n\nrequire the Title III court to directly interfere with the\n\n\"political or governmental powers\" and \"property or revenues\" of\n\nthe Commonwealth and HTA, at least as to those HTA revenues that\n\nhave yet to be transferred to the fiscal agent and remain in the\n\npossession of the Commonwealth. Specifically, Ambac requests\n\ninjunctive relief that would compel the Commonwealth's remittance\n\nof toll revenues, vehicles fees, and excise taxes to HTA and then\n\n\n\n - 9 -\n\fto the Bank of New York Mellon for payment to bondholders. Ambac\n\nhopes to achieve much the same end by obtaining a declaration that\n\nthe Commonwealth's continued divergence of these funds pursuant to\n\nthe Moratorium Laws and Orders and the Fiscal Plan is\n\nunconstitutional, preempted under section 303 of PROMESA, and in\n\nviolation of sections 922(d) and 928(a) of the municipal-\n\nbankruptcy code (as incorporated into PROMESA via 48 U.S.C.\n\n§ 2161(a)).\n\n In Financial Oversight and Management Board for Puerto\n\nRico v. Ad Hoc Group of Puerto Rico Electric Power Authority\n\nBondholders, we held that although section 305 prohibits a\n\nTitle III court from \"directly interfering with the listed powers\n\nand properties of [a Commonwealth agency],\" it does not bar a\n\nTitle III court from granting a reprieve from the automatic stay\n\nunder 11 U.S.C. § 362 to allow another court, pursuant to\n\nCommonwealth law, to place a Commonwealth entity into\n\nreceivership. PREPA, 899 F.3d 13, 19 (1st Cir. 2018). In doing\n\nso, we recognized that granting such relief would require a\n\nTitle III court to \"merely stand[] aside\" to \"allow[] the processes\n\nof . . . territorial law to operate in normal course.\" Id. at 21.\n\nHere, by contrast, Ambac's requested relief would require the Title\n\nIII court itself to direct the Commonwealth's use of its revenues\n\nand property in a manner that contravenes the expressed will of\n\nthe Commonwealth legislature, the Governor of Puerto Rico, and the\n\n\n - 10 -\n\fOversight Board. On its face, the text of section 305 bars the\n\nTitle III court from granting Ambac such relief absent consent\n\nfrom the Oversight Board or unless the Fiscal Plan so provides.\n\nSee 48 U.S.C. § 2165.\n\n This conclusion accords with our recent decision in\n\nAurelius Capital Master, Ltd. v. Puerto Rico, in which we held\n\nthat section 305 bars the Title III court from preventing the\n\nCommonwealth from using certain Commonwealth revenues for the\n\npayment of general-obligation debt. 919 F.3d 638, 648–49 (1st\n\nCir. 2019). It also accords with how courts have interpreted the\n\nanalogous section 904 of the municipal-bankruptcy code. See Lyda\n\nv. City of Detroit (In re City of Detroit), 841 F.3d 684, 696 (6th\n\nCir. 2016) (holding that section 904 prohibits the court\n\noverseeing Detroit's bankruptcy from awarding residents an\n\ninjunction that would have restored water service in the city);\n\nAss'n of Retired Emps. of Stockton v. City of Stockton (In re City\n\nof Stockton), 478 B.R. 8, 20–22 (Bankr. E.D. Cal. 2012) (concluding\n\nthat section 904 precludes enjoining the city from implementing a\n\nreduction in retiree health benefits); see generally 6 Collier on\n\nBankruptcy ¶ 904.01 (Richard Levin & Henry J. Sommer eds. 16th ed.\n\n2018) [hereinafter Collier] (\"[T]he prohibition of this section is\n\nabsolute. . . . The question is . . . whether the order improperly\n\ninterferes with the political or governmental affairs or property\n\n\n\n\n - 11 -\n\fof the debtor. If it does, then no matter what authority is used\n\nto support it, the order runs afoul of section 904.\").\n\n The context in which Congress passed section 904\n\nprovides further credence to our reading of section 305. In Ashton\n\nv. Cameron County Water Improvement District, the Supreme Court\n\nstruck down a predecessor to the modern municipal-bankruptcy\n\nstatute, reasoning that it allowed a federal bankruptcy court to\n\nimpermissibly intrude upon the sovereignty of states and their\n\nsubdivisions. 298 U.S. 513, 531 (1936) (\"If obligations of states\n\nor their political subdivisions may be subjected to the\n\ninterference here attempted, they are no longer free to manage\n\ntheir own affairs . . . .\"). By including section 904 (and its\n\ncorollary, 11 U.S.C. § 903, which explicitly reserves power to the\n\nstates to control municipalities within their territories),\n\nCongress intended to give the bankruptcy courts \"only enough\n\njurisdiction to provide meaningful assistance to municipalities\n\nthat require it, not to address the policy matters that such\n\nmunicipalities control.\" Lyda, 841 F.3d at 695 (quoting In re\n\nAddison Cmty. Hosp. Auth., 175 B.R. 646, 649 (Bankr. E.D. Mich.\n\n1994)); see also 6 Collier ¶ 904.LH.\n\n Notwithstanding the foregoing, Ambac offers four reasons\n\nwhy section 305 should not preclude us from affording it the\n\ninjunctive and declaratory relief that it seeks in this case.\n\n\n\n\n - 12 -\n\f First, Ambac argues that nothing in section 305\n\naddresses pledged-special-revenue bonds in Title III proceedings.\n\nAccordingly, it reasons, sections 922(d) and 928(a) control the\n\ntreatment and disposition of pledged special revenues in Title III\n\nbankruptcy cases, and section 305 therefore poses no bar to the\n\nTitle III court's ability to grant its requested relief.\n\n Section 922(d) provides that \"[n]otwithstanding\n\nsection 362 of this title and subsection (a) of this section, a\n\npetition filed under this chapter does not operate as a stay of\n\napplication of pledged special revenues . . . to payment of\n\nindebtedness secured by such revenues.\" 11 U.S.C. § 922(d). And\n\nsection 928(a) states: \"Notwithstanding section 552(a) of this\n\ntitle . . . , special revenues acquired by the debtor after the\n\ncommencement of the case shall remain subject to any lien resulting\n\nfrom any security agreement entered into by the debtor before the\n\ncommencement of the case.\" Id. § 928(a). It is true that\n\nsection 305, in contrast to these provisions, does not\n\nspecifically mention \"pledged special revenues.\" But neither does\n\nit explicitly reference any other type of municipal debt or\n\nsubstantive form of interference with a debtor's political powers,\n\nproperty, or revenues. Analogously, though a sign might simply\n\nstate \"No Smoking Allowed,\" no one would reasonably construe such\n\na prohibition as permitting an individual to light up a cigar\n\nmerely because the sign makes no specific reference to rolled,\n\n\n - 13 -\n\ftobacco-filled cartridges of the larger, unfiltered variety.\n\nRather, any reasonable reader would conclude that the broad\n\nlanguage fairly communicates a reach that plainly encompasses the\n\nnarrower application; likewise, Ambac's requested relief that\n\nwould direct the Commonwealth to turn over its property to\n\nbondholders falls within the ambit of section 305's sweeping\n\nlanguage even if we assume that the funds in question are pledged\n\nspecial revenues within the meaning of sections 922(d) and 928(a).\n\n Of course, if section 305 directly conflicted with\n\nsections 922(d) or 928(a) of the municipal bankruptcy code, one\n\nmight turn to \"the ancient canon of interpretation . . . generalia\n\nspecialibus non derogant (the 'specific governs the general').\"\n\nAurelius Inv., LLC v. Puerto Rico, 915 F.3d 838, 851 (1st Cir.\n\n2019). Even then, though, section 305’s preface that its terms\n\napply \"notwithstanding any power of the court\" might well render\n\nthat rule of construction inapplicable. In any event, there is no\n\nreal conflict between the sections pertaining to pledged special\n\nrevenues and section 305. The former two provisions address the\n\nrelationship between the automatic stay and the application of\n\npledged special revenues to a debt. They say nothing at all about\n\nthe subject of section 305, i.e., whether the Title III court\n\nitself has the power to require a debtor to turn over certain\n\nrevenues to a creditor. See Assured Guar. Corp. v. Fin. Oversight\n\n\n\n\n - 14 -\n\f& Mgmt. Bd. for P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.),\n\n919 F.3d 121, 131 n.12 (1st Cir. 2019).\n\n Second, Ambac alleges that our interpretation of\n\nsection 305 would \"effectively wipe out\" sections 922(d) and\n\n928(a) of the municipal bankruptcy code. It argues that these\n\nprovisions mandate the debtor's continued payment of special\n\nrevenues pursuant to the terms of the bondholder agreements and\n\nthat section 922(d) excepts from the automatic stay a creditor's\n\naction seeking to enforce that mandate. Our recent decision in\n\nAssured Guaranty rejected both of these contentions. See Assured\n\nGuar. Corp., 919 F.3d at 127–32. Section 928(a) simply does what\n\nit says: It orders that \"special revenues acquired by the debtor\n\nafter the commencement of the case shall remain subject to any\n\nlien resulting from any security agreement entered into by the\n\ndebtor before the commencement of the case.\" 11 U.S.C. § 928(a);\n\nsee also Assured Guar. Corp., 919 F.3d at 127–29. Section 922(d),\n\nin turn, does provide an exception to the automatic stay, but not\n\nas broadly as Ambac contends. The automatic stay encompasses a\n\nlarge universe of creditor actions that might affect the debtor,\n\nincluding not just lawsuits and enforcement actions, but also \"any\n\npost-petition collection activities against the debtor.\" S. Rep.\n\nNo. 100-506, at 11 (1988) (emphasis added); see also 11 U.S.C.\n\n§ 362(a)(3) (barring \"any act . . . to exercise control over\n\nproperty of the [debtor]\"); 11 U.S.C. § 362(a)(4) (prohibiting\n\n\n - 15 -\n\f\"any act to create, perfect, or enforce any lien against property\n\nof the [debtor]\"); 11 U.S.C. § 362(a)(6) (proscribing \"any act to\n\ncollect, assess, or recover a claim against the debtor that arose\n\nbefore the commencement of the [bankruptcy] case\"). This broad\n\nuniverse of stayed actions was understood to include a secured\n\ncreditor's application of collateral in its possession to the\n\ndebtor's outstanding debt. See, e.g., 3 Collier ¶ 362.03\n\n(\"[I]nnocent conduct such as the cashing of checks received from\n\naccount debtors of accounts assigned as security may be a technical\n\nviolation [of section 362(a)(6)].\"); id. (\"[T]he stay applies to\n\nsecured creditors in possession of collateral and to collateral in\n\npossession of a custodian.\"); see also S. Rep. No. 100-506, at 11\n\n(\"The automatic stay of Bankruptcy Code Section 362 is extremely\n\nbroad, preventing any post-petition collection activities against\n\nthe debtor, including application of the debtor's funds held by a\n\nsecured lender to secure indebtedness.\" (emphasis added));\n\nMetromedia Fiber Network Servs. v. Lexent, Inc. (In re Metromedia\n\nFiber Network, Inc.), 290 B.R. 487, 493 (Bankr. S.D.N.Y. 2003); In\n\nre Reed, 102 B.R. 243, 245 (Bankr. E.D. Okla. 1989). Congress in\n\nsection 922(d) eliminated any possibility that the stay would\n\nprevent the \"application of pledged special revenues . . . to\n\npayment of indebtedness.\" 11 U.S.C. § 922(d). But nothing in\n\nthat language suggests that Congress also excepted the plethora of\n\n\n\n\n - 16 -\n\fother actions to which the automatic stay applies, most obviously\n\nand notably suits to compel payment.\n\n Ambac next alleges that section 305 does not prevent the\n\nTitle III court from granting its requested injunctive and\n\ndeclaratory relief because the Oversight Board consented to such\n\ninterference by initiating Title III bankruptcy proceedings. But\n\nin PREPA we rejected the argument that the mere filing of a\n\nTitle III petition might constitute such consent, reasoning that\n\nto rule otherwise would be to \"render section 305 a nullity.\"\n\nPREPA, 899 F.3d at 19. We see no principled reason to reach a\n\ndifferent conclusion just because the proposed interference in\n\nthis case may involve pledged special revenues.\n\n Finally, Ambac argues that its requested declaratory\n\nrelief is not actually coercive and, thus, would not impermissibly\n\ninterfere with the governmental affairs or property of HTA and the\n\nCommonwealth. However, we declined to endorse this argument in\n\nanother recent PROMESA case, see Aurelius Capital Masters, Ltd.,\n\n919 F.3d at 648, as did the Sixth Circuit in the municipal-\n\nbankruptcy setting, see Lyda, 841 F.3d at 696 (\"Preliminary or\n\npermanent injunctions directing [the City] to stop terminations or\n\nto provide water service . . . necessarily interfere[] . . . . A\n\ndeclaration that [the City's] practices are illegal or\n\nunconstitutional does the same.\" (citation omitted) (internal\n\nquotation marks omitted)).\n\n\n - 17 -\n\f At oral argument, counsel for Ambac also raised the\n\npossibility that our interpretation of section 305 would raise due\n\nprocess concerns because Ambac would be left without a venue in\n\nwhich to bring its constitutional claims. But nothing in our\n\nholding today suggests that Ambac cannot seek traditional stay\n\nrelief pursuant to 11 U.S.C. § 362 and raise its constitutional\n\nand statutory arguments in a separate action. As we explained in\n\nPREPA, section 305 \"only bar[s] the Title III court itself from\n\ndirectly interfering with the debtor's powers or property.\" 899\n\nF.3d at 21. It does not, however, impose any such restraint on\n\nanother court.\n\n Accordingly, we hold that the Title III court lacks the\n\nauthority to grant the declaratory and injunctive relief that Ambac\n\nseeks in this case.4\n\n III.\n\n For the foregoing reasons, the judgment is affirmed.\n\n\n\n 4 In its First Amended Complaint, Ambac alleges that the Bank\nof New York Mellon has not applied approximately $69 million in\nfunds that it is holding in trust for HTA bondholders, citing\nAAFAF's letter directing it to retain these funds. And in one\ncursory footnote in its brief, Ambac suggests that section 305\nmight not bar the Title III court from ordering the disbursement\nof pledged special revenues that are already in the hands of the\nfiscal agent. Ambac, however, does nothing further to develop\nthis argument, so we treat it as waived and we do not consider it\nin this appeal. See United States v. Zannino, 895 F.2d 1, 17 (1st\nCir. 1990) (\"[I]ssues adverted to in a perfunctory manner,\nunaccompanied by some effort at developed argumentation, are\ndeemed waived.\").\n\n\n - 18 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In RE: The FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as Representative for the Commonwealth of Puerto Rico; The Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority, Debtors. Ambac Assurance Corporation, Plaintiff, Appellant, v. Commonwealth of Puerto Rico, Through the Secretary of Justice; Financial Oversight and Management Board; Puerto Rico Fiscal Agency and Financial Advisory Authority, Through the Secretary of Justice; Puerto Rico Highways and Transportation Authority, Through the Secretary of Justice; Ricardo Rossello Nevares, Through the Secretary of Justice; Raul Maldonado Gautier, Through the Secretary of Justice; Jose Ivan Marrero-Rosado; Jose B. Carrion, III; Christian Sobrino Vega; Andrew G. Biggs; Carlos M. Garcia ; Arthur J. Gonzalez; Jose R. Gonzalez ; Ana J. Matosantos; David A. Skeel, Jr.; Elias Sanchez, Defendants, Appellees, Official Committee of Unsecured Creditors, Intervenor, John Does 1-12, Defendants.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1214\\n\\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\\nRICO, as representative for the Commonwealth of Puerto Rico; THE\\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as\\n representative for the Puerto Rico Highways and Transportation\\n Authority,\\n\\n Debtors.\\n\\n\\n\\n AMBAC ASSURANCE CORPORATION,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n COMMONWEALTH OF PUERTO RICO, through the Secretary of Justice;\\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD; PUERTO RICO FISCAL\\n AGENCY AND FINANCIAL ADVISORY AUTHORITY, through the Secretary\\n of Justice; PUERTO RICO HIGHWAYS AND TRANSPORTATION AUTHORITY,\\n through the Secretary of Justice; RICARDO ROSSELLO NEVARES,\\n through the Secretary of Justice; RAUL MALDONADO GAUTIER,\\nthrough the Secretary of Justice; JOSE IVAN MARRERO-ROSADO; JOSE\\nB. CARRION, III; CHRISTIAN SOBRINO VEGA; ANDREW G. BIGGS; CARLOS\\n M. GARCIA; ARTHUR J. GONZALEZ; JOSE R. GONZALEZ; ANA J.\\n MATOSANTOS; DAVID A. SKEEL, JR.; ELIAS SANCHEZ,\\n\\n Defendants, Appellees,\\n\\n OFFICIAL COMMITTEE OF UNSECURED CREDITORS,\\n\\n Intervenor,\\n\\n JOHN DOES 1–12,\\n\\n Defendants.\\n\\f APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Laura Taylor Swain, U.S. District Judge*]\\n\\n\\n Before\\n\\n Torruella, Lipez, and Kayatta,\\n Circuit Judges.\\n\\n\\n Atara Miller, with whom Dennis F. Dunne, Andrew M. Leblanc,\\nGrant F. Mainland, Milbank, Tweed, Hadley & McCloy LLP, Roberto A.\\nCámara-Fuertes, and Ferraiouli LLC were on brief, for appellant.\\n Mark C. Ellenberg, Howard R. Hawkins, Jr., Lary Stromfeld,\\nEllen V. Holloman, Gillian Groarke Burns, Thomas J. Curtin, Casey\\nServais, Cadwalder, Wickersham & Taft LLP, Heriberto Burgos Pérez,\\nRicardo F. Casellas-Sánchez, Diana Pérez-Seda, Casellas Alcover &\\nBurgos, Maria E. Picó, Rexach & Picó, CSP, Martin A. Sosland, Jason\\nW. Callen, and Butler Snow LLP on brief for Assured Guaranty\\nCorporation, Assured Guaranty Municipal Corporation, and Financial\\nGuaranty Insurance Company, amici curiae.\\n Vincent Levy, Daniel M. Sullivan, Margot Hoppin, Evan H.\\nStein, and Holwell Shuster & Goldberg LLP on brief for Professor\\nJohn W. Ely, Jr., amicus curiae.\\n Bruce R. Zirinsky and Zirinsky Law Partners LLC on brief for\\nRepresentative Rob Bishop, amicus curiae.\\n Martin J. Bienenstock, with whom Stephen L. Ratner, Mark D.\\nHarris, Michael A. Firestein, Lary Alan Rappaport, Timothy W.\\nMungovan, John E. Roberts, Proskauer Rose LLP, Hermann D. Bauer-\\nAlvarez, and O'Neill & Borges LLC were on brief, for appellee\\nFinancial Oversight and Management Board for Puerto Rico.\\n Peter M. Friedman, with whom Isaías Sánchez-Báez, Solicitor\\nGeneral of Puerto Rico, Carlos Lugo-Fiol, John J. Rapisardi,\\nElizabeth L. McKeen, Ashley M. Pavel, O'Melveny & Myers LLP, Luis\\nMarini, and Marini Pietrantoni Muñoz, LLC were on brief, for\\nappellees the Puerto Rico Fiscal Agency and Financial Advisory\\nAuthority, Christian Sobrino Vega, Ricardo Rosselló Nevares, Raul\\nMaldonado Gautier, and Jose Ivan Marrero Rosado.\\n Paul S. Samson, Riemer & Braunstein LLP, Gregory E. Garman,\\nErick T. Gjerdingen, and Garman Turner Gordon LLP on brief for\\nCongressman Raúl Grijalva, ranking member of the House Committee\\non Natural Resources, and Congresswoman Nydia Velázquez, member of\\n\\n\\n *Of the Southern District of New York, sitting by designation.\\n\\fthe House Committee on Natural Resources, amici curiae.\\n Luc A. Despins, with whom Nicholas A. Bassett, Paul Hastings\\nLLP, Juan J. Casillas Ayala, and Casillas, Santiago & Torres LLC\\nwere on brief, for the Official Committee of Unsecured Creditors\\nof All Puerto Rico Title III Debtors (Other than COFINA).\\n\\n\\n June 24, 2019\\n\\f KAYATTA, Circuit Judge. Ambac is a financial guaranty\\n\\ninsurer and individual holder of Puerto Rico Highways and\\n\\nTransportation Authority (HTA) bonds. In this Title III adversary\\n\\nproceeding arising within HTA's debt-adjustment proceedings\\n\\npursuant to the Puerto Rico Oversight, Management, and Economic\\n\\nStability Act (PROMESA), Ambac brings constitutional and statutory\\n\\nchallenges to measures the Commonwealth of Puerto Rico has taken\\n\\nto block payments to holders of HTA bonds. Because the Title III\\n\\ncourt lacks the authority to grant the declaratory and injunctive\\n\\nrelief that Ambac seeks, we affirm the dismissal of Ambac's claims.\\n\\n I.\\n\\n Because this appeal comes before us from the dismissal\\n\\nof Ambac's constitutional and statutory claims, \\\"we take as true\\n\\nthe facts presented in [Ambac's] complaint and draw all reasonable\\n\\ninferences in [its] favor.\\\" Maloy v. Ballori-Lage, 744 F.3d 250,\\n\\n251 (1st Cir. 2014).\\n\\n HTA develops, operates, and maintains Puerto Rico's\\n\\nhighways and transportation infrastructure. It has the ability to\\n\\nissue bonds to finance its operations pursuant to the Puerto Rico\\n\\nHighways and Transportation Authority Act, P.R. Laws Ann. tit. 9,\\n\\n§ 2012. In 1968 and 1998, HTA adopted resolutions issuing bonds.\\n\\nThe resolutions set forth the contractual relationship between HTA\\n\\nand bondholders and \\\"pledge[]\\\" for the payment of \\\"principal,\\n\\ninterest and premiums\\\" certain \\\"[r]evenues\\\" and \\\"funds received by\\n\\n\\n - 4 -\\n\\f[HTA] . . . from the Commonwealth\\\" (referred to here as \\\"HTA\\n\\nrevenues\\\"). P.R. Highways & Transp. Authority, Resolution No. 98-\\n\\n06, at 58 [hereinafter 1998 Resolution]; see also P.R. Highways\\n\\n& Transp. Authority, Resolution No. 68-18, at 50 [hereinafter 1968\\n\\nResolution]. The HTA revenues include, among other funds: (1) \\\"all\\n\\nmoneys received by [HTA] on account of the crude oil tax allocated\\n\\nto [HTA] by Act No. 34\\\"; (2) proceeds from gasoline and oil taxes\\n\\nand from annual motor-vehicle license fees; (3) \\\"any tolls or other\\n\\ncharges imposed by [HTA]\\\"; and (4) \\\"the proceeds of any other\\n\\ntaxes, fees or charges\\\" that the Puerto Rico legislature authorizes\\n\\nfor payment of \\\"principal of and interest on bonds or other\\n\\nobligations of [HTA].\\\" 1998 Resolution at 7, 13; see also 1968\\n\\nResolution at 11 (employing a similar definition of HTA revenues).\\n\\n The bond resolutions require HTA to deposit the HTA\\n\\nrevenues on a monthly basis with a fiscal agent, the Bank of New\\n\\nYork Mellon, which holds the funds in trust for bondholders and\\n\\nthen pays bondholders in accordance with the terms of the\\n\\nresolutions. 1998 Resolution at 47; 1968 Resolution at 42. The\\n\\nresolutions further provide that the bondholders' interest in the\\n\\nHTA revenues is paramount, subject to one qualification:\\n\\nCommonwealth law requires that revenues be used to first pay\\n\\ninterest and amortization of the public debt (i.e., general\\n\\nobligation bonds) in years in which other available resources are\\n\\n\\n\\n\\n - 5 -\\n\\finsufficient to meet appropriations. See P.R. Const. art. VI,\\n\\n§ 8; see also 1998 Resolution at 19; 1968 Resolution at 17.1\\n\\n A succession of related events upset the parties'\\n\\ncontractual arrangement concerning the HTA revenues, giving rise\\n\\nto this lawsuit. In brief, the Commonwealth and Governor of Puerto\\n\\nRico promulgated a series of laws and executive orders -- known as\\n\\nthe \\\"Moratorium Laws and Orders\\\" -- that halted the flow of\\n\\nrevenues from the Commonwealth and HTA to the fiscal agent for\\n\\npayment to bondholders and, instead, directed those revenues to\\n\\nthe payment of other, ordinary Commonwealth expenses.2 The\\n\\nMoratorium Laws and Orders also stayed creditor remedies to enforce\\n\\ntheir contractual rights under the bondholder resolutions.\\n\\n\\n\\n\\n 1Ambac alleges that the HTA revenues fall within the category\\nof \\\"special revenues\\\" as defined in the municipal-bankruptcy code,\\nsee 11 U.S.C. § 902(2); 48 U.S.C. § 2161(a) (incorporating 11\\nU.S.C. § 902 into PROMESA), and that it has a security interest in\\nall such revenues. Intervenor the Official Committee of Unsecured\\nCreditors of All Puerto Rico Title III Debtors (Other than COFINA)\\ncontests at least the latter point and urges us to construe Ambac's\\nsecurity interest narrowly as extending only to HTA revenues\\nactually deposited with the fiscal agent. As will become evident,\\nthe resolution of this issue is not necessary to settle the\\nimmediate appeal.\\n 2See, e.g., Puerto Rico Emergency Moratorium and Financial\\nRehabilitation Act, P.R. Laws Ann. tit. 3, §§ 9282–9288 (codifying\\nthen-Governor Alejandro García Padilla's moratorium orders and\\ngranting him the authority to suspend the Commonwealth's debt\\nobligations); see also Puerto Rico Financial Emergency and Fiscal\\nResponsibility Act, P.R. Laws Ann. tit. 3, §§ 9431–9437\\n(indefinitely continuing the moratorium orders).\\n\\n\\n - 6 -\\n\\f Thereafter, the Financial Oversight and Management Board\\n\\nfor Puerto Rico (\\\"Oversight Board\\\") -- established by PROMESA, 48\\n\\nU.S.C. §§ 2101–2241, and tasked with \\\"provid[ing] a method for\\n\\n[Puerto Rico] to achieve fiscal responsibility and access to the\\n\\ncapital markets,\\\" id. § 2121(a) -- certified a \\\"Fiscal Plan\\\" for\\n\\nPuerto Rico to which all Commonwealth laws and budgets must\\n\\nconform, see id. §§ 2141(c), 2144(a)–(c). The Fiscal Plan calls\\n\\nfor the continued diversion of HTA revenues over the course of the\\n\\nnext decade.3 The Oversight Board, pursuant to its authority under\\n\\nsection 304 of PROMESA, id. § 2164(a), subsequently initiated\\n\\nTitle III debt-adjustment proceedings on behalf of HTA, which also\\n\\ntriggered an automatic stay of actions to collect preexisting debts\\n\\nfrom the agency, 11 U.S.C. § 362(a)(1), (5); 48 U.S.C. § 2161(a)\\n\\n(incorporating 11 U.S.C. § 362). The Puerto Rico Fiscal Agency\\n\\nand Financial Advisory Authority (AAFAF) then ordered the Bank of\\n\\nNew York Mellon, as fiscal agent, to halt payments to HTA\\n\\nbondholders, reasoning that the funds held in trust are still the\\n\\nproperty of the Commonwealth and their application to HTA bonds\\n\\nwould violate the automatic stay. In July 2017, HTA defaulted on\\n\\na bond payment in the amount of $219 million.\\n\\n Ambac, which is both a holder and insurer of the\\n\\ndefaulted HTA bonds, commenced this adversary action in the so-\\n\\n\\n 3In April 2018, the Oversight Board certified a new Fiscal\\nPlan that continues the diversion of HTA revenues.\\n\\n\\n - 7 -\\n\\fcalled \\\"Title III court,\\\" bringing Contracts Clause, Takings\\n\\nClause, Due Process Clause, preemption, and statutory challenges\\n\\nto the Commonwealth's actions. Ambac asked that court to declare\\n\\nas null the Moratorium Laws and Orders and the Fiscal Plan, and it\\n\\nsought a negative injunction preventing the Commonwealth from\\n\\ncontinuing to impair the flow of HTA revenues to bondholders. The\\n\\nTitle III court carefully reviewed and rejected all of Ambac's\\n\\nrequested relief, dismissing the complaint with prejudice. See\\n\\nAmbac Assurance Corp. v. Puerto Rico (In re Fin. Oversight & Mgmt.\\n\\nBd. for P.R.), 297 F. Supp. 3d 269 (D.P.R. 2018). Ambac then filed\\n\\nthis timely appeal.\\n\\n II.\\n\\n Two sections of PROMESA prevent the Title III court from\\n\\ngranting the relief that Ambac requests in this adversary\\n\\nproceeding.\\n\\n A.\\n\\n Section 106 of PROMESA provides: \\\"There shall be no\\n\\njurisdiction in any United States district court to review\\n\\nchallenges to the Oversight Board's certification determinations\\n\\nunder this chapter.\\\" 48 U.S.C. § 2126(e). As this court recently\\n\\nexplained, \\\"PROMESA grants the Board exclusive authority to\\n\\ncertify Fiscal Plans and Territory Budgets for Puerto Rico. It\\n\\nthen insulates those certification decisions from judicial\\n\\nreview . . . .\\\" Méndez-Núñez v. Fin. Oversight & Mgmt. Bd. for\\n\\n\\n - 8 -\\n\\fP.R., (In re Fin. Oversight & Mgmt. Bd. for P.R.), 916 F.3d 98,\\n\\n112 (1st Cir. 2019). In its First Amended Complaint, Ambac\\n\\nrepeatedly requests \\\"injunctive relief invalidating the Oversight\\n\\nBoard's certification of the Fiscal Plan.\\\" This relief is plainly\\n\\nprecluded as a result of section 106 and our holding in Méndez-\\n\\nNúñez.\\n\\n B.\\n\\n Section 305 of PROMESA states, in relevant part:\\n\\n [N]otwithstanding any power of the court, unless the\\n Oversight Board consents or the plan so provides, the\\n court may not, by any stay, order, or decree, in the\\n case or otherwise, interfere with -- (1) any of the\\n political or governmental powers of the debtor; (2) any\\n of the property or revenues of the debtor; or (3) the\\n use or enjoyment by the debtor of any income-producing\\n property.\\n\\n48 U.S.C. § 2165. The provision mimics, in all pertinent respects,\\n\\nthe analogous section 904 of the municipal-bankruptcy code. See\\n\\n11 U.S.C. § 904.\\n\\n Ambac seeks declaratory and injunctive relief that would\\n\\nrequire the Title III court to directly interfere with the\\n\\n\\\"political or governmental powers\\\" and \\\"property or revenues\\\" of\\n\\nthe Commonwealth and HTA, at least as to those HTA revenues that\\n\\nhave yet to be transferred to the fiscal agent and remain in the\\n\\npossession of the Commonwealth. Specifically, Ambac requests\\n\\ninjunctive relief that would compel the Commonwealth's remittance\\n\\nof toll revenues, vehicles fees, and excise taxes to HTA and then\\n\\n\\n\\n - 9 -\\n\\fto the Bank of New York Mellon for payment to bondholders. Ambac\\n\\nhopes to achieve much the same end by obtaining a declaration that\\n\\nthe Commonwealth's continued divergence of these funds pursuant to\\n\\nthe Moratorium Laws and Orders and the Fiscal Plan is\\n\\nunconstitutional, preempted under section 303 of PROMESA, and in\\n\\nviolation of sections 922(d) and 928(a) of the municipal-\\n\\nbankruptcy code (as incorporated into PROMESA via 48 U.S.C.\\n\\n§ 2161(a)).\\n\\n In Financial Oversight and Management Board for Puerto\\n\\nRico v. Ad Hoc Group of Puerto Rico Electric Power Authority\\n\\nBondholders, we held that although section 305 prohibits a\\n\\nTitle III court from \\\"directly interfering with the listed powers\\n\\nand properties of [a Commonwealth agency],\\\" it does not bar a\\n\\nTitle III court from granting a reprieve from the automatic stay\\n\\nunder 11 U.S.C. § 362 to allow another court, pursuant to\\n\\nCommonwealth law, to place a Commonwealth entity into\\n\\nreceivership. PREPA, 899 F.3d 13, 19 (1st Cir. 2018). In doing\\n\\nso, we recognized that granting such relief would require a\\n\\nTitle III court to \\\"merely stand[] aside\\\" to \\\"allow[] the processes\\n\\nof . . . territorial law to operate in normal course.\\\" Id. at 21.\\n\\nHere, by contrast, Ambac's requested relief would require the Title\\n\\nIII court itself to direct the Commonwealth's use of its revenues\\n\\nand property in a manner that contravenes the expressed will of\\n\\nthe Commonwealth legislature, the Governor of Puerto Rico, and the\\n\\n\\n - 10 -\\n\\fOversight Board. On its face, the text of section 305 bars the\\n\\nTitle III court from granting Ambac such relief absent consent\\n\\nfrom the Oversight Board or unless the Fiscal Plan so provides.\\n\\nSee 48 U.S.C. § 2165.\\n\\n This conclusion accords with our recent decision in\\n\\nAurelius Capital Master, Ltd. v. Puerto Rico, in which we held\\n\\nthat section 305 bars the Title III court from preventing the\\n\\nCommonwealth from using certain Commonwealth revenues for the\\n\\npayment of general-obligation debt. 919 F.3d 638, 648–49 (1st\\n\\nCir. 2019). It also accords with how courts have interpreted the\\n\\nanalogous section 904 of the municipal-bankruptcy code. See Lyda\\n\\nv. City of Detroit (In re City of Detroit), 841 F.3d 684, 696 (6th\\n\\nCir. 2016) (holding that section 904 prohibits the court\\n\\noverseeing Detroit's bankruptcy from awarding residents an\\n\\ninjunction that would have restored water service in the city);\\n\\nAss'n of Retired Emps. of Stockton v. City of Stockton (In re City\\n\\nof Stockton), 478 B.R. 8, 20–22 (Bankr. E.D. Cal. 2012) (concluding\\n\\nthat section 904 precludes enjoining the city from implementing a\\n\\nreduction in retiree health benefits); see generally 6 Collier on\\n\\nBankruptcy ¶ 904.01 (Richard Levin & Henry J. Sommer eds. 16th ed.\\n\\n2018) [hereinafter Collier] (\\\"[T]he prohibition of this section is\\n\\nabsolute. . . . The question is . . . whether the order improperly\\n\\ninterferes with the political or governmental affairs or property\\n\\n\\n\\n\\n - 11 -\\n\\fof the debtor. If it does, then no matter what authority is used\\n\\nto support it, the order runs afoul of section 904.\\\").\\n\\n The context in which Congress passed section 904\\n\\nprovides further credence to our reading of section 305. In Ashton\\n\\nv. Cameron County Water Improvement District, the Supreme Court\\n\\nstruck down a predecessor to the modern municipal-bankruptcy\\n\\nstatute, reasoning that it allowed a federal bankruptcy court to\\n\\nimpermissibly intrude upon the sovereignty of states and their\\n\\nsubdivisions. 298 U.S. 513, 531 (1936) (\\\"If obligations of states\\n\\nor their political subdivisions may be subjected to the\\n\\ninterference here attempted, they are no longer free to manage\\n\\ntheir own affairs . . . .\\\"). By including section 904 (and its\\n\\ncorollary, 11 U.S.C. § 903, which explicitly reserves power to the\\n\\nstates to control municipalities within their territories),\\n\\nCongress intended to give the bankruptcy courts \\\"only enough\\n\\njurisdiction to provide meaningful assistance to municipalities\\n\\nthat require it, not to address the policy matters that such\\n\\nmunicipalities control.\\\" Lyda, 841 F.3d at 695 (quoting In re\\n\\nAddison Cmty. Hosp. Auth., 175 B.R. 646, 649 (Bankr. E.D. Mich.\\n\\n1994)); see also 6 Collier ¶ 904.LH.\\n\\n Notwithstanding the foregoing, Ambac offers four reasons\\n\\nwhy section 305 should not preclude us from affording it the\\n\\ninjunctive and declaratory relief that it seeks in this case.\\n\\n\\n\\n\\n - 12 -\\n\\f First, Ambac argues that nothing in section 305\\n\\naddresses pledged-special-revenue bonds in Title III proceedings.\\n\\nAccordingly, it reasons, sections 922(d) and 928(a) control the\\n\\ntreatment and disposition of pledged special revenues in Title III\\n\\nbankruptcy cases, and section 305 therefore poses no bar to the\\n\\nTitle III court's ability to grant its requested relief.\\n\\n Section 922(d) provides that \\\"[n]otwithstanding\\n\\nsection 362 of this title and subsection (a) of this section, a\\n\\npetition filed under this chapter does not operate as a stay of\\n\\napplication of pledged special revenues . . . to payment of\\n\\nindebtedness secured by such revenues.\\\" 11 U.S.C. § 922(d). And\\n\\nsection 928(a) states: \\\"Notwithstanding section 552(a) of this\\n\\ntitle . . . , special revenues acquired by the debtor after the\\n\\ncommencement of the case shall remain subject to any lien resulting\\n\\nfrom any security agreement entered into by the debtor before the\\n\\ncommencement of the case.\\\" Id. § 928(a). It is true that\\n\\nsection 305, in contrast to these provisions, does not\\n\\nspecifically mention \\\"pledged special revenues.\\\" But neither does\\n\\nit explicitly reference any other type of municipal debt or\\n\\nsubstantive form of interference with a debtor's political powers,\\n\\nproperty, or revenues. Analogously, though a sign might simply\\n\\nstate \\\"No Smoking Allowed,\\\" no one would reasonably construe such\\n\\na prohibition as permitting an individual to light up a cigar\\n\\nmerely because the sign makes no specific reference to rolled,\\n\\n\\n - 13 -\\n\\ftobacco-filled cartridges of the larger, unfiltered variety.\\n\\nRather, any reasonable reader would conclude that the broad\\n\\nlanguage fairly communicates a reach that plainly encompasses the\\n\\nnarrower application; likewise, Ambac's requested relief that\\n\\nwould direct the Commonwealth to turn over its property to\\n\\nbondholders falls within the ambit of section 305's sweeping\\n\\nlanguage even if we assume that the funds in question are pledged\\n\\nspecial revenues within the meaning of sections 922(d) and 928(a).\\n\\n Of course, if section 305 directly conflicted with\\n\\nsections 922(d) or 928(a) of the municipal bankruptcy code, one\\n\\nmight turn to \\\"the ancient canon of interpretation . . . generalia\\n\\nspecialibus non derogant (the 'specific governs the general').\\\"\\n\\nAurelius Inv., LLC v. Puerto Rico, 915 F.3d 838, 851 (1st Cir.\\n\\n2019). Even then, though, section 305’s preface that its terms\\n\\napply \\\"notwithstanding any power of the court\\\" might well render\\n\\nthat rule of construction inapplicable. In any event, there is no\\n\\nreal conflict between the sections pertaining to pledged special\\n\\nrevenues and section 305. The former two provisions address the\\n\\nrelationship between the automatic stay and the application of\\n\\npledged special revenues to a debt. They say nothing at all about\\n\\nthe subject of section 305, i.e., whether the Title III court\\n\\nitself has the power to require a debtor to turn over certain\\n\\nrevenues to a creditor. See Assured Guar. Corp. v. Fin. Oversight\\n\\n\\n\\n\\n - 14 -\\n\\f& Mgmt. Bd. for P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.),\\n\\n919 F.3d 121, 131 n.12 (1st Cir. 2019).\\n\\n Second, Ambac alleges that our interpretation of\\n\\nsection 305 would \\\"effectively wipe out\\\" sections 922(d) and\\n\\n928(a) of the municipal bankruptcy code. It argues that these\\n\\nprovisions mandate the debtor's continued payment of special\\n\\nrevenues pursuant to the terms of the bondholder agreements and\\n\\nthat section 922(d) excepts from the automatic stay a creditor's\\n\\naction seeking to enforce that mandate. Our recent decision in\\n\\nAssured Guaranty rejected both of these contentions. See Assured\\n\\nGuar. Corp., 919 F.3d at 127–32. Section 928(a) simply does what\\n\\nit says: It orders that \\\"special revenues acquired by the debtor\\n\\nafter the commencement of the case shall remain subject to any\\n\\nlien resulting from any security agreement entered into by the\\n\\ndebtor before the commencement of the case.\\\" 11 U.S.C. § 928(a);\\n\\nsee also Assured Guar. Corp., 919 F.3d at 127–29. Section 922(d),\\n\\nin turn, does provide an exception to the automatic stay, but not\\n\\nas broadly as Ambac contends. The automatic stay encompasses a\\n\\nlarge universe of creditor actions that might affect the debtor,\\n\\nincluding not just lawsuits and enforcement actions, but also \\\"any\\n\\npost-petition collection activities against the debtor.\\\" S. Rep.\\n\\nNo. 100-506, at 11 (1988) (emphasis added); see also 11 U.S.C.\\n\\n§ 362(a)(3) (barring \\\"any act . . . to exercise control over\\n\\nproperty of the [debtor]\\\"); 11 U.S.C. § 362(a)(4) (prohibiting\\n\\n\\n - 15 -\\n\\f\\\"any act to create, perfect, or enforce any lien against property\\n\\nof the [debtor]\\\"); 11 U.S.C. § 362(a)(6) (proscribing \\\"any act to\\n\\ncollect, assess, or recover a claim against the debtor that arose\\n\\nbefore the commencement of the [bankruptcy] case\\\"). This broad\\n\\nuniverse of stayed actions was understood to include a secured\\n\\ncreditor's application of collateral in its possession to the\\n\\ndebtor's outstanding debt. See, e.g., 3 Collier ¶ 362.03\\n\\n(\\\"[I]nnocent conduct such as the cashing of checks received from\\n\\naccount debtors of accounts assigned as security may be a technical\\n\\nviolation [of section 362(a)(6)].\\\"); id. (\\\"[T]he stay applies to\\n\\nsecured creditors in possession of collateral and to collateral in\\n\\npossession of a custodian.\\\"); see also S. Rep. No. 100-506, at 11\\n\\n(\\\"The automatic stay of Bankruptcy Code Section 362 is extremely\\n\\nbroad, preventing any post-petition collection activities against\\n\\nthe debtor, including application of the debtor's funds held by a\\n\\nsecured lender to secure indebtedness.\\\" (emphasis added));\\n\\nMetromedia Fiber Network Servs. v. Lexent, Inc. (In re Metromedia\\n\\nFiber Network, Inc.), 290 B.R. 487, 493 (Bankr. S.D.N.Y. 2003); In\\n\\nre Reed, 102 B.R. 243, 245 (Bankr. E.D. Okla. 1989). Congress in\\n\\nsection 922(d) eliminated any possibility that the stay would\\n\\nprevent the \\\"application of pledged special revenues . . . to\\n\\npayment of indebtedness.\\\" 11 U.S.C. § 922(d). But nothing in\\n\\nthat language suggests that Congress also excepted the plethora of\\n\\n\\n\\n\\n - 16 -\\n\\fother actions to which the automatic stay applies, most obviously\\n\\nand notably suits to compel payment.\\n\\n Ambac next alleges that section 305 does not prevent the\\n\\nTitle III court from granting its requested injunctive and\\n\\ndeclaratory relief because the Oversight Board consented to such\\n\\ninterference by initiating Title III bankruptcy proceedings. But\\n\\nin PREPA we rejected the argument that the mere filing of a\\n\\nTitle III petition might constitute such consent, reasoning that\\n\\nto rule otherwise would be to \\\"render section 305 a nullity.\\\"\\n\\nPREPA, 899 F.3d at 19. We see no principled reason to reach a\\n\\ndifferent conclusion just because the proposed interference in\\n\\nthis case may involve pledged special revenues.\\n\\n Finally, Ambac argues that its requested declaratory\\n\\nrelief is not actually coercive and, thus, would not impermissibly\\n\\ninterfere with the governmental affairs or property of HTA and the\\n\\nCommonwealth. However, we declined to endorse this argument in\\n\\nanother recent PROMESA case, see Aurelius Capital Masters, Ltd.,\\n\\n919 F.3d at 648, as did the Sixth Circuit in the municipal-\\n\\nbankruptcy setting, see Lyda, 841 F.3d at 696 (\\\"Preliminary or\\n\\npermanent injunctions directing [the City] to stop terminations or\\n\\nto provide water service . . . necessarily interfere[] . . . . A\\n\\ndeclaration that [the City's] practices are illegal or\\n\\nunconstitutional does the same.\\\" (citation omitted) (internal\\n\\nquotation marks omitted)).\\n\\n\\n - 17 -\\n\\f At oral argument, counsel for Ambac also raised the\\n\\npossibility that our interpretation of section 305 would raise due\\n\\nprocess concerns because Ambac would be left without a venue in\\n\\nwhich to bring its constitutional claims. But nothing in our\\n\\nholding today suggests that Ambac cannot seek traditional stay\\n\\nrelief pursuant to 11 U.S.C. § 362 and raise its constitutional\\n\\nand statutory arguments in a separate action. As we explained in\\n\\nPREPA, section 305 \\\"only bar[s] the Title III court itself from\\n\\ndirectly interfering with the debtor's powers or property.\\\" 899\\n\\nF.3d at 21. It does not, however, impose any such restraint on\\n\\nanother court.\\n\\n Accordingly, we hold that the Title III court lacks the\\n\\nauthority to grant the declaratory and injunctive relief that Ambac\\n\\nseeks in this case.4\\n\\n III.\\n\\n For the foregoing reasons, the judgment is affirmed.\\n\\n\\n\\n 4 In its First Amended Complaint, Ambac alleges that the Bank\\nof New York Mellon has not applied approximately $69 million in\\nfunds that it is holding in trust for HTA bondholders, citing\\nAAFAF's letter directing it to retain these funds. And in one\\ncursory footnote in its brief, Ambac suggests that section 305\\nmight not bar the Title III court from ordering the disbursement\\nof pledged special revenues that are already in the hands of the\\nfiscal agent. Ambac, however, does nothing further to develop\\nthis argument, so we treat it as waived and we do not consider it\\nin this appeal. See United States v. Zannino, 895 F.2d 1, 17 (1st\\nCir. 1990) (\\\"[I]ssues adverted to in a perfunctory manner,\\nunaccompanied by some effort at developed argumentation, are\\ndeemed waived.\\\").\\n\\n\\n - 18 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2385,"cells":{"id":{"kind":"number","value":4633230,"string":"4,633,230"},"name":{"kind":"string","value":"Rolando PENATE, Plaintiff, Appellee, v. Anne KACZMAREK, Defendant, Appellant, Kris Foster ; Randall Ravitz; Joseph Ballou ; Robert Irwin; Randy Thomas; Sonja Farak; Sharon Salem; James Hanchett; Julie Nassif; Linda Han ; Estate of Kevin Burnham; Steven Kent; John Wadlegger; Gregg Bigda; Edward Kalish; City of Springfield, Defendants."},"name_abbreviation":{"kind":"string","value":"Penate v. Kaczmarek"},"decision_date":{"kind":"string","value":"2019-06-26"},"docket_number":{"kind":"string","value":"18-2261P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Barron, Kayatta, Lynch\", \"parties\": \"\", \"opinions\": [{\"author\": \"of Massachusetts, Inc., Emma Quinn-Judge, Monica Shah, and Zalkind\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-2261\\n\\n ROLANDO PENATE,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n ANNE KACZMAREK,\\n\\n Defendant, Appellant,\\n\\n KRIS FOSTER; RANDALL RAVITZ; JOSEPH BALLOU; ROBERT IRWIN; RANDY\\nTHOMAS; SONJA FARAK; SHARON SALEM; JAMES HANCHETT; JULIE NASSIF;\\nLINDA HAN; ESTATE OF KEVIN BURNHAM; STEVEN KENT; JOHN WADLEGGER;\\n GREGG BIGDA; EDWARD KALISH; CITY OF SPRINGFIELD,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Katherine A. Robertson, U.S. Magistrate Judge]\\n\\n\\n Before\\n\\n Lynch, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n David H. Rich, with whom Maria T. Davis and Todd & Weld, LLP\\nwere on brief, for appellant.\\n Luke Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on\\nbrief, for appellee.\\n Matthew R. Segal, American Civil Liberties Union Foundation\\nof Massachusetts, Inc., Emma Quinn-Judge, Monica Shah, and Zalkind\\nDuncan & Bernstein LLP on brief for American Civil Liberties Union\\nof Massachusetts and Massachusetts Association of Criminal Defense\\nLawyers, amici curiae.\\n\\fJune 26, 2019\\n\\f LYNCH, Circuit Judge. This appeal presents novel\\n\\nquestions about the scope of absolute prosecutorial and government\\n\\nattorney immunity from claims asserted under 42 U.S.C. § 1983.\\n\\n Appellee Rolando Penate filed this § 1983 action against\\n\\nseventeen defendants after the dismissal with prejudice of his\\n\\n2013 Massachusetts criminal conviction for drug distribution.\\n\\nThis appeal is from an order denying absolute immunity to one of\\n\\nthose defendants, Anne Kaczmarek, a former Massachusetts Assistant\\n\\nAttorney General. Penate's complaint alleged that Kaczmarek\\n\\nunlawfully withheld (and worked with others to unlawfully\\n\\nwithhold) exculpatory evidence from Penate's counsel; from the\\n\\nHampden County, Massachusetts District Attorney, whose office\\n\\nprosecuted Penate in Hampden County Superior Court; and from that\\n\\nstate court. The withheld evidence showed that a drug laboratory\\n\\nchemist, Sonja Farak, had been battling drug addiction and had\\n\\ntampered with samples she was assigned to test around the time she\\n\\ntested the samples in Penate's case. Kaczmarek had obtained the\\n\\nevidence at issue while she was prosecuting Farak on state charges\\n\\nof tampering with evidence and drug possession.\\n\\n After the magistrate judge rejected Kaczmarek's motion\\n\\nto dismiss on grounds of absolute immunity, Penate v. Kaczmarek,\\n\\nNo. 17-cv-30119, 2018 WL 6437077, at *16 (D. Mass. Dec. 7, 2018),\\n\\nKaczmarek filed this interlocutory appeal. We affirm.\\n\\n\\n\\n\\n - 3 -\\n\\f We are required to \\\"make two important assumptions about\\n\\nthe case: first, that [Penate's] allegations are entirely true;\\n\\nand, second, that they allege constitutional violations for which\\n\\n§ 1983 provides a remedy.\\\" Buckley v. Fitzsimmons, 509 U.S. 259,\\n\\n261 (1993); see also Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 28\\n\\n(1st Cir. 1995). The first of these assumptions is critical here,\\n\\nas our rejections of Kaczmarek's novel claims to absolute immunity\\n\\nare fact-bound conclusions.\\n\\n After recounting the allegations in the complaint and\\n\\nthe history of this suit, we address Kaczmarek's two theories for\\n\\nabsolute immunity.1 She first argues that she enjoys absolute\\n\\nprosecutorial immunity because the conduct alleged in the\\n\\ncomplaint occurred during the time period when she was assigned to\\n\\nprosecute Farak. We reject this argument because, on the facts\\n\\nalleged in the complaint, Kaczmarek's decision to withhold\\n\\nevidence from the criminal prosecution of Penate lacked a\\n\\n\\\"functional tie\\\" to her prosecutorial role in Farak's separate\\n\\ncase. Buckley, 500 U.S. at 277. Kaczmarek alternatively seeks\\n\\nabsolute immunity on the ground that, in performing some conduct\\n\\nalleged in the complaint, she functioned as an advocate for the\\n\\ngovernment in an evidentiary hearing associated with the criminal\\n\\ncase against Penate. But certain allegations in the complaint are\\n\\n\\n 1 Kaczmarek has not raised the defense of qualified\\nimmunity.\\n\\n\\n - 4 -\\n\\fbest read to allege that Kaczmarek played an administrative role\\n\\nconcerning this hearing. On that basis, we reject this second\\n\\nargument for absolute immunity.\\n\\n I.\\n\\nA. Facts Alleged in the Complaint\\n\\n Penate was charged by the Hampden County District\\n\\nAttorney with several drug-related offenses on November 16, 2011.\\n\\nThe suspected drugs were sent to the Massachusetts Department of\\n\\nPublic Health's Amherst Drug Lab and were assigned to Farak for\\n\\nanalysis. Farak reported that the substances from Penate's case\\n\\nhad all tested positive for the presence of controlled substances.\\n\\n Farak tested the samples on December 22, 2011, January\\n\\n6, 2012, and January 9, 2012. Also on December 22, Farak entered\\n\\non a Diary Card kept as part of her treatment for drug addiction\\n\\nthat she \\\"tried to resist using [at] work but ended up failing.\\\"\\n\\n Farak later placed this Diary Card in the trunk of her\\n\\ncar, where, as discussed below, it was found, along with similar\\n\\nworksheets, by the state police. Those documents revealed that,\\n\\nduring the period that the lab held the samples in Penate's case,\\n\\nFarak had struggled with drug addiction, had frequently consumed\\n\\ndrugs while at work, and had often tampered with and used drug\\n\\nsamples and supplies held by the lab. At the heart of this case\\n\\nis Kaczmarek's failure to disclose this exculpatory evidence to\\n\\n\\n\\n\\n - 5 -\\n\\fPenate, to his prosecutor, and to the court in his criminal\\n\\nproceeding.2\\n\\n The charges against Penate were still pending when the\\n\\nMassachusetts Attorney General's Office (AGO or AG) began\\n\\ninvestigating Farak for misconduct at the Amherst Drug Lab. On\\n\\nJanuary 19, 2013, AGO investigators obtained a warrant to search\\n\\nFarak's car, searched the car, and seized hundreds of pages of\\n\\npaper, including the Diary Card and other mental health worksheets.\\n\\n Farak was charged with tampering with evidence and drug\\n\\npossession on January 22, 2013. Kaczmarek, a prosecutor in the\\n\\nAG's Enterprise and Major Crimes Unit, was assigned to prosecute\\n\\nFarak, who ultimately pleaded guilty in January 2014.\\n\\n The complaint then tracks the AGO's actions related to\\n\\nthe exculpatory evidence that Penate claims was unlawfully\\n\\nwithheld during his criminal proceeding. The Diary Card and other\\n\\nmental health worksheets first went unmentioned or were\\n\\n\\n 2 Penate also claims that Kaczmarek somehow violated his\\nconstitutional rights by artificially narrowing the scope of the\\ninvestigation against Farak, after Farak had been arrested and\\narraigned. But, because that claim concerns Kaczmarek's choices\\nregarding the course of a prosecution she was actually conducting,\\nafter a probable cause determination had been made, absolute\\nimmunity does bar it. See Buckley, 509 U.S. at 273 (\\\"[A]cts\\nundertaken by a prosecutor in preparing for the initiation of\\njudicial proceedings or for trial, and which occur in the course\\nof his role as an advocate for the State, are entitled to the\\nprotections of absolute immunity.\\\"); see also Kalina v. Fletcher,\\n522 U.S. 118, 129 (1997) (holding that a prosecutor's \\\"activities\\nin connection with the preparation and filing of . . . charging\\ndocuments . . . are protected by absolute immunity\\\").\\n\\n\\n - 6 -\\n\\fcharacterized as \\\"assorted lab paperwork\\\" by investigators in\\n\\npolice reports and returns for search warrants. \\\"This was not an\\n\\noversight,\\\" the complaint alleges, \\\"but reflected a collective\\n\\ndecision on the part of Kaczmarek, . . . [Police Sergeant Joseph]\\n\\nBallou, and . . . [others] to deny the existence of this highly\\n\\nprobative evidence.\\\" The complaint then alleges that, around the\\n\\nsame time, Kaczmarek discouraged Ballou from following up on an\\n\\nallegation of evidence tampering by Farak in 2005.\\n\\n In February 2013, Ballou attached copies of the Diary\\n\\nCard and other mental health worksheets to an email to Kaczmarek\\n\\nwith the subject line \\\"FARAK Admissions.\\\" \\\"Here are those forms\\n\\nwith the admissions of drug use I was talking about,\\\" he wrote.\\n\\n In March, neither the Diary Card nor the other mental\\n\\nhealth worksheets were included in the packets of evidence related\\n\\nto Farak provided to all of the Massachusetts District Attorneys.\\n\\nThe packets were accompanied by a letter from the head of the AG's\\n\\nCriminal Bureau, John Verner; the letter explained that the AG was\\n\\ninvestigating Farak and stated, \\\"Pursuant to this office's\\n\\nobligation to provide potentially exculpatory information to the\\n\\nDistrict Attorneys as well as information necessary to your\\n\\nOffices' determination about how to proceed with cases in which\\n\\nrelated narcotic evidence was tested at the Amherst Laboratory,\\n\\nplease find the below listed materials . . . .\\\"\\n\\n\\n\\n\\n - 7 -\\n\\f That same day in March, Kaczmarek submitted to Verner\\n\\nand her other supervisors a Prosecution Memo that contained\\n\\nmultiple references to Farak's mental health worksheets.\\n\\nKaczmarek stated that the worksheets had \\\"not been submitted to\\n\\nthe [Farak] grand jury out of an abundance of caution,\\\" although\\n\\n\\\"[c]ase law\\\" indicated that \\\"the paperwork [was] not privileged.\\\"\\n\\nVerner responded with a hand-written note telling her that these\\n\\ndocuments had \\\"NOT\\\" been \\\"turned over to DAs offices yet.\\\"\\n\\n Despite this withholding of the mental health worksheets\\n\\nfrom the District Attorneys (and later from Penate and the Hampden\\n\\nCounty Superior Court), Kaczmarek did disclose the worksheets to\\n\\nFarak's defense attorney. In doing so, Kaczmarek told the defense\\n\\nthat the documents would not be turned over to any \\\"Farak\\n\\ndefendants\\\" (that is, defendants seeking relief based on Farak's\\n\\nmisconduct) and that the AG's office considered the documents to\\n\\nbe \\\"privileged.\\\"\\n\\n Penate, who was awaiting his trial on the criminal\\n\\ncharges, filed a motion to dismiss in July 2013 based on the\\n\\ncharges against Farak. The judge ordered an evidentiary hearing\\n\\non the issue of Farak's misconduct between November 2011 and\\n\\nJanuary 2012, when the lab had custody of the substances from\\n\\nPenate's case. Penate's motion was consolidated with similar\\n\\nmotions from about a dozen Farak-defendant cases pending in Hampden\\n\\nCounty Superior Court. A hearing in these consolidated motions\\n\\n\\n - 8 -\\n\\fon the timing and scope of Farak's misconduct was scheduled for\\n\\nSeptember 9, 2013.\\n\\n Before the hearing, Assistant District Attorney Eduardo\\n\\nVelazquez, who was prosecuting Penate, sought any exculpatory\\n\\nevidence for the hearing from the AGO. He was told that all\\n\\nrelevant evidence had already been provided to the DAs, even though\\n\\nthe mental health worksheets, as Verner had noted, had \\\"NOT\\\" been\\n\\ndisclosed.\\n\\n Ballou received a subpoena duces tecum for the hearing\\n\\non the consolidated motions \\\"command[ing] the production of all\\n\\ndocuments and photographs pertaining to the investigation of Sonja\\n\\nFarak and the Amherst Drug Lab.\\\"3 Assistant Attorney General Kris\\n\\nFoster, from the AGO's Appeals Division, was assigned to handle\\n\\nthe response to the subpoena. In meetings about how to respond\\n\\nto the subpoena, Kaczmarek divulged to Foster and Foster's\\n\\nsupervisor, Randall Ravitz, that she and Ballou possessed the\\n\\nmental health worksheets. But Kaczmarek took the position that\\n\\nthese documents were irrelevant to the Farak defendants. She also\\n\\n\\n\\n\\n 3 Before Penate's motion was consolidated with the other\\nFarak defendants' motions, Penate served Ballou and Kaczmarek with\\nsubpoenas to testify at the evidentiary hearing ordered in Penate's\\ncase. However, the complaint does not allege that Kaczmarek was\\nsubpoenaed to appear at the post-conviction proceeding. The\\nallegations in the complaint about Kaczmarek recounted in the\\nfollowing paragraphs all pertain to the Ballou subpoena and a\\nrelated court order.\\n\\n\\n - 9 -\\n\\furged that the documents should not be produced because several\\n\\ncontained information about Farak's mental health treatment.\\n\\n Foster filed a motion to quash the subpoena. In the\\n\\nalternative, Foster sought a protective order excluding from the\\n\\nscope of the subpoena information including \\\"emails responsive to\\n\\nthe subpoena\\\" and \\\"information concerning the health or medical or\\n\\npsychological treatment of individuals.\\\"\\n\\n Ballou testified at the hearing on the consolidated\\n\\nmotions. At Foster's instruction, Ballou did not reveal the\\n\\nexistence of the mental health worksheets. During the hearing,\\n\\nthe judge ordered Foster to review Ballou's \\\"file\\\" on Farak and to\\n\\npresent to the court for in camera review copies of any undisclosed\\n\\ndocuments in the file.\\n\\n Foster, Kaczmarek, and Verner discussed whether the\\n\\norder required Ballou to submit his emails to Kaczmarek about\\n\\nFarak. Kaczmarek ultimately asked Ballou to bring his file about\\n\\nthe case to Boston for her to review. The paper file Ballou\\n\\nbrought to Boston contained none of the mental health worksheets,\\n\\nso Kaczmarek told Foster that all of the documents in Ballou's\\n\\nfile had already been disclosed. Foster then sent the judge a\\n\\nletter stating that \\\"every document in [Ballou's] possession has\\n\\nalready been disclosed.\\\"\\n\\n The day Foster sent the letter, Penate's counsel emailed\\n\\nFoster requesting to inspect the documents seized from Farak's\\n\\n\\n - 10 -\\n\\fcar. Foster forwarded the email to Kaczmarek, who responded: \\\"No.\\n\\nWhy is this relevant to this case. I really don't like him.\\\"\\n\\nFoster told Penate's counsel that the AG's position was that the\\n\\nevidence from the car was irrelevant to any case other than\\n\\nFarak's.\\n\\n Penate's motion to dismiss the criminal charges was\\n\\ndenied by the state court based on a finding that Farak's\\n\\nmisconduct began after she handled the samples in Penate's case.\\n\\nAlthough Penate subpoenaed Kaczmarek to testify at his trial,\\n\\nFoster's motion to quash the subpoena was granted, as was\\n\\nVelazquez's motion in limine to preclude Penate from arguing that\\n\\nFarak was engaged in misconduct between November 2011 and January\\n\\n2012. In December 2013, Penate was convicted of one count of\\n\\nDistributing a Class A substance and was sentenced to five to seven\\n\\nyears in prison.\\n\\n In October 2014, an inspection of the evidence found in\\n\\nFarak's car for a different Massachusetts criminal case revealed\\n\\nthe Diary Card and the other mental health worksheets. This\\n\\ndiscovery prompted Verner, the head of the AG's Criminal Bureau,\\n\\nto send copies of all of the documents seized in the car to the\\n\\nMassachusetts DAs in November 2014.\\n\\n Based on the newly produced evidence, Penate filed a\\n\\nmotion for a new trial in 2015, which was again consolidated with\\n\\nthe cases of other Farak defendants. These defendants sought\\n\\n\\n - 11 -\\n\\fdiscovery from the AGO on prosecutorial misconduct by attorneys in\\n\\nthat office. In opposing the discovery, the AGO represented:\\n\\n The defendants' proposed claim of\\n prosecutorial misconduct based on actions by\\n the Attorney General's Office fails for the\\n very simple fact that the AGO is not the\\n prosecutor of any of these cases. Certainly,\\n the AGO prosecuted Sonja Farak; but this is\\n not Farak's case. Instead, in these cases the\\n AGO was a non-party from which the defendants\\n previously sought expansive post-conviction\\n discovery. In that capacity, the AGO was well\\n supported by case law in presenting arguments\\n opposing the proposed discovery requests, just\\n as any other non-party might do.\\n\\n In January 2017, Penate's motion for a new trial was\\n\\nallowed, with the assent of the Hampden County DA. In June 2017,\\n\\na judge dismissed Penate's conviction with prejudice. The judge\\n\\nfound that \\\"Kaczmarek's and Foster's deliberate withholding of\\n\\nexculpatory evidence was particularly egregious in the Penate\\n\\ncase\\\" and \\\"qualifies as a fraud upon the court.\\\"\\n\\nB. History of this Suit\\n\\n Penate filed this suit on September 5, 2017 in federal\\n\\ndistrict court in Massachusetts. His complaint asserted two\\n\\nclaims against Kaczmarek: the § 1983 claim already mentioned and\\n\\na state tort law claim for intentional infliction of emotional\\n\\ndistress. Under Massachusetts law, Kaczmarek's immunity from the\\n\\ntort claim falls with her immunity from the § 1983 claim.4 See\\n\\n\\n\\n 4 Kaczmarek's opening brief on appeal argues in a single\\nparagraph that the tort claim is also \\\"barred by the general\\n\\n\\n - 12 -\\n\\fChicopee Lions Club v. Dist. Att'y for Hampden Dist., 485 N.E.2d\\n\\n673, 677 (Mass. 1985).\\n\\n Count IV of the complaint asserts § 1983 violations by\\n\\nKaczmarek, Foster, and Foster's supervisor, Ravitz. It alleges\\n\\nthat Kaczmarek knew that the mental health worksheets were\\n\\nexculpatory evidence in the cases of Farak defendants like Penate\\n\\nand that Kaczmarek had a duty under Brady v. United States, 373\\n\\nU.S. 83 (1963), to disclose such evidence and to make truthful\\n\\nstatements about such evidence. In paragraph 433, the complaint\\n\\nstates that Kaczmarek, Foster, and Ravitz, \\\"prior to, during, and\\n\\nfollowing Plaintiff's trial, intentionally, recklessly, and/or\\n\\nwith deliberate indifference to their legal obligations, concealed\\n\\nBrady material, lied about, and otherwise failed to disclose Brady\\n\\nmaterial to the Hampden County ADA prosecuting Plaintiff.\\\"\\n\\nParagraph 434 alleges the same failure to disclose, to \\\"Plaintiff's\\n\\ncounsel and the Hampden County Superior Court.\\\" 5 Count VIII\\n\\n\\nMassachusetts common law litigation privilege.\\\" But Kaczmarek did\\nnot raise this defense in the district court, the magistrate judge\\ndid not rule on it, and we do not consider it. See United States\\nv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990); see also Espinal-\\nDominguez v. Puerto Rico, 352 F.3d 490, 495-96 (1st Cir. 2003)\\n(describing the scope of appellate jurisdiction from non-final\\ndistrict court orders).\\n 5 In the order denying Kaczmarek's motion to dismiss, the\\nmagistrate judge recounted the complaint's allegations that\\nKaczmarek conspired with investigators to mischaracterize the\\nmental health worksheets as \\\"lab paperwork\\\" and that Kaczmarek\\ndiscouraged Ballou from following up on a lead. See Penate, 2018\\nWL 6437077, at *14. To the extent these allegations are offered\\nto support a claim that Kaczmarek violated Penate's constitutional\\n\\n\\n - 13 -\\n\\falleged that this conduct by Kaczmarek amounted to the intentional\\n\\ninfliction of emotional distress.\\n\\n Kaczmarek's motion to dismiss the complaint argued that\\n\\nshe was entitled to absolute immunity, raising the two theories\\n\\npreviously identified. The magistrate judge denied the motion\\n\\nbecause Penate's claims against Kaczmarek were \\\"not related to her\\n\\nprosecution of Farak,\\\" Penate, 2018 WL 6437077, at *16, and because\\n\\nKaczmarek was not engaged in a function analogous to a prosecutor's\\n\\nwhen she worked on the requests for exculpatory information in the\\n\\nAG's and Ballou's possession, see id. at *15.\\n\\n II.\\n\\nA. Jurisdiction, Standard of Review, and Kaczmarek's Burden\\n\\n We have jurisdiction over Kaczmarek's interlocutory\\n\\nappeal from the denial of immunity because it \\\"turns on a purely\\n\\nlegal question.\\\" Limone v. Condon, 372 F.3d 39, 50 (1st Cir.\\n\\n2004); see also Filler v. Kellett, 859 F.3d 148, 152 (1st Cir.\\n\\n\\n\\nrights by artificially narrowing the scope of the investigation\\nagainst Farak, we have held, in footnote 2, supra, that Kaczmarek\\nis absolutely immune.\\n Penate argues in his brief that these factual\\nallegations were made in support of paragraph 433 of the complaint,\\nwhich alleges that Kaczmarek failed to disclose exculpatory\\nevidence to the DAs, including to the DA prosecuting Penate. And\\nKaczmarek admits in her reply brief that these allegations could\\nproperly be used to support the theory in paragraph 433. To the\\nextent the facts are alleged for this purpose, we agree with Penate\\nthat these two factual allegations are well-pleaded and need not\\nbe disregarded as conclusory. See Ocasio-Hernández v. Fortuño-\\nBurset, 640 F.3d 1, 14 (1st Cir. 2011) (defining well-pleaded\\nfacts).\\n\\n\\n - 14 -\\n\\f2017) (lacking interlocutory jurisdiction because immunity\\n\\ndepended on facts requiring further development). Penate's\\n\\ncomplaint alleges the facts necessary to evaluate Kaczmarek's\\n\\ndefense; we are required to take those facts as true at this stage;\\n\\nand Kaczmarek, in any event, does not dispute them. The only\\n\\nquestion is whether, on those facts, Kaczmarek is entitled to\\n\\nabsolute immunity and thus to dismissal of the complaint.\\n\\n Our review is de novo. Garnier v. Rodríguez, 506 F.3d\\n\\n22, 26 (1st Cir. 2007). We start with \\\"[t]he presumption . . .\\n\\nthat qualified rather than absolute immunity is sufficient.\\\"\\n\\nBurns v. Reed, 500 U.S. 478, 486 (1991). And Kaczmarek, as the\\n\\n\\\"official seeking absolute immunity[,] bears the burden of showing\\n\\nthat such immunity is justified.\\\" Id. at 486. That burden is a\\n\\nheavy one. See, e.g., Buckley, 509 U.S. at 269 (\\\"[W]e have been\\n\\n'quite sparing' in recognizing absolute immunity for state actors\\n\\n. . . .\\\" (quoting Forrester v. White, 484 U.S. 219, 224 (1988)).\\n\\n Kaczmarek has not satisfied it here, either on her first\\n\\ntheory that she is entitled to absolute prosecutorial immunity\\n\\nbecause she prosecuted Farak or on her second theory that she\\n\\nshould enjoy the absolute immunity afforded to certain government\\n\\nattorneys. We address these theories in turn.\\n\\nB. Absolute Prosecutorial Immunity\\n\\n The Supreme Court first recognized the absolute immunity\\n\\nof prosecutors from certain § 1983 claims in Imbler v. Pachtman,\\n\\n\\n - 15 -\\n\\f424 U.S. 409 (1976). There, the Court held that prosecutors are\\n\\nabsolutely immune in exercising the core prosecutorial functions\\n\\nof \\\"initiating a prosecution and . . . presenting the State's\\n\\ncase.\\\" Id. at 431.\\n\\n Following Imbler, the Court has used a \\\"functional\\n\\napproach\\\" to decide whether state officials are entitled to\\n\\nabsolute immunity from particular § 1983 claims. Burns, 500 U.S.\\n\\nat 486. This approach looks to \\\"the nature of the function\\n\\nperformed, not the identity of the actor who performed it,\\\"\\n\\nForrester, 484 U.S. at 229, nor to \\\"the particular act\\\" in\\n\\nisolation, Mireles v. Waco, 502 U.S. 9, 12 (1991) (per curiam)\\n\\n(citing Stump v. Sparkman, 435 U.S. 349, 356 (1978)).\\n\\n Applying this approach, the Supreme Court has recognized\\n\\nthat several \\\"functions of contemporary prosecutors are entitled\\n\\nto absolute immunity.\\\" Buckley, 509 U.S. at 269. These include:\\n\\n\\\"appearing before a judge and presenting evidence in support of a\\n\\nmotion for a search warrant,\\\" Burns, 500 U.S. at 491, and\\n\\n\\\"prepar[ing] and filing . . . [a criminal] information and [a]\\n\\nmotion for an arrest warrant,\\\" Kalina v. Fletcher, 522 U.S. 118,\\n\\n129 (1997). The basic \\\"principle\\\" of these cases is \\\"that acts\\n\\nundertaken by a prosecutor in preparing for the initiation of\\n\\njudicial proceedings or for trial, and which occur in the course\\n\\nof his role as an advocate for the State, are entitled to the\\n\\nprotections of absolute immunity.\\\" Buckley, 509 U.S. at 273.\\n\\n\\n - 16 -\\n\\f But the Supreme Court has rejected claims to absolute\\n\\nprosecutorial immunity where the prosecutor's conduct lacked a\\n\\n\\\"functional tie to [a] judicial process\\\" initiated by the\\n\\nprosecutor. Id. at 277. So, absolute immunity does not protect\\n\\nprosecutors when they give advice to police during a criminal\\n\\ninvestigation, Burns, 500 U.S. at 495-96, fabricate evidence long\\n\\nbefore a grand jury has made an indictment, Buckley, 509 U.S. 275-\\n\\n76, or make statements to the press in announcing an indictment,\\n\\nid. at 276-78. These functions have been deemed \\\"administrative\\\"\\n\\nor \\\"investigative,\\\" and, in exercising them, \\\"a prosecutor is in\\n\\nno different position than other executive officials,\\\" such as\\n\\npolice, and \\\"qualified immunity is the norm for them.\\\" Id. at\\n\\n278.\\n\\n All of these Supreme Court cases involved claims arising\\n\\nout of criminal proceedings which were initiated by the same\\n\\nofficials who were seeking absolute prosecutorial immunity. But\\n\\nKaczmarek was not Penate's prosecutor; 6 she rests her broad\\n\\nassertion of absolute prosecutorial immunity on her role as Farak's\\n\\nprosecutor. Kaczmarek's claim is thus a novel one, as neither the\\n\\n\\n 6 Kaczmarek's agency, the AGO, had no control over\\nPenate's prosecution and thus Kaczmarek cannot, and indeed does\\nnot, claim to have been his prosecutor. See Kulwicki v. Dawson,\\n969 F.2d 1454, 1467 (3d Cir. 1992) (denying prosecutor lacking\\n\\\"official control over\\\" a prosecution prosecutorial immunity based\\non that prosecution). Indeed, the AG, for whom Kaczmarek worked,\\nadmitted that it was not Penate's prosecutor but rather \\\"was a\\nnon-party from which [Penate] . . . sought . . . discovery.\\\"\\n\\n\\n - 17 -\\n\\fSupreme Court nor this court has ever extended absolute\\n\\nprosecutorial immunity to conduct by a prosecutor in a proceeding\\n\\nnot initiated by that prosecutor or by an office that prosecutor\\n\\nsupervises.7\\n\\n Absolute immunity is not triggered here by the simple\\n\\nfact that the conduct alleged in the complaint occurred while\\n\\nKaczmarek was pursuing the commonwealth's criminal charges against\\n\\nFarak. See Filler, 859 F.3d at 153 (\\\"Importantly, absolute\\n\\nimmunity does not necessarily apply to all actions that a\\n\\nprosecutor may take once the 'judicial phase' begins.\\\"); Guzman-\\n\\nRivera, 55 F.3d at 29 (observing that absolute prosecutorial\\n\\nimmunity does not \\\"extend[] to all conduct that facilitates the\\n\\nprosecutorial function\\\"). As the Supreme Court has emphasized,\\n\\n\\\"the actions of a prosecutor are not absolutely immune merely\\n\\nbecause they are performed by a prosecutor.\\\" Buckley, 509 U.S.\\n\\nat 273. Rather, under the functional approach, Kaczmarek's\\n\\ndefense turns on the following question: was Kaczmarek functioning\\n\\nas Farak's prosecutor when she withheld evidence from Penate's\\n\\nproceeding? See id. at 277 (asking whether the prosecutor's\\n\\n\\n 7 The Supreme Court held in Van de Kamp v. Goldstein, 555\\nU.S. 335 (2009), that prosecutors were entitled to absolute\\nimmunity for supervising their office's compliance with\\nconstitutional disclosure requirements. Id. at 348. As Kaczmarek\\ndid not work in or otherwise have control over the office of the\\nDA prosecuting Penate, her claim to absolute prosecutorial\\nimmunity does not come under the rubric of Van de Kamp. See id.\\nat 345.\\n\\n\\n - 18 -\\n\\fconduct had any \\\"functional tie to the judicial process\\\"); Burns,\\n\\n500 U.S. at 495 (asking whether \\\"the prosecutor's actions are\\n\\nclosely associated with the judicial process\\\" the prosecutor\\n\\ninitiated).\\n\\n Key facts alleged in the complaint answer that question\\n\\nin the negative. The most significant fact is that Kaczmarek\\n\\nturned over the mental health worksheets to Farak's defense. This\\n\\nshows that, when Kaczmarek orchestrated the withholding of that\\n\\nvery same evidence in Penate's case, she did not do so because\\n\\nkeeping the evidence under wraps was helpful to her prosecution of\\n\\nFarak. On the complaint's facts, we conclude jurors could find\\n\\nthat Kaczmarek's decisions about disclosure of evidence in\\n\\nPenate's case were not made based on her role as Farak's\\n\\nprosecutor. The absence of this \\\"functional tie\\\" between\\n\\nKaczmarek's prosecutorial duties and her conduct in Penate's case,\\n\\nif proven, would doom Kaczmarek's assertion of absolute\\n\\nprosecutorial immunity. Buckley, 509 U.S. at 277.\\n\\n The ties Kaczmarek points to do not show that she\\n\\nwithheld evidence in Penate's case as part of her advocacy in\\n\\nFarak's case. Kaczmarek emphasizes that her involvement in\\n\\nPenate's case occurred \\\"in the midst of her criminal prosecution\\\"\\n\\nof Farak. But, as we have already explained, the functional\\n\\napproach and the principle that prosecutorial immunity is not\\n\\ncoextensive with the judicial phase of the criminal process require\\n\\n\\n - 19 -\\n\\fthat determinations about immunity turn not on accidents of timing\\n\\nbut on careful analyses of the functions being performed.\\n\\n Kaczmarek also stresses that her \\\"obligations\\\" to Penate\\n\\n\\\"arose solely because of her . . . role as Farak's prosecutor.\\\"\\n\\nKaczmarek possessed the evidence at issue because she was Farak's\\n\\nprosecutor, \\\"but that connection is too tenuous\\\" to show that\\n\\nKaczmarek functioned as a prosecutor when she withheld the evidence\\n\\nfrom Penate's case. Lampton v. Diaz, 639 F.3d 223, 227 (5th Cir.\\n\\n2011); see also id. at 227-28 (denying immunity for prosecutor's\\n\\ndisclosure of tax records acquired during prosecution to state\\n\\nethics board); Yarris v. Cty. of Delaware, 465 F.3d 129, 137-38\\n\\n(3d Cir. 2006) (denying absolute prosecutorial immunity to\\n\\nprosecutors who withheld evidence in post-conviction proceedings\\n\\nassigned to other prosecutors, even though the prosecutors had\\n\\nacquired the evidence at issue through their roles as prosecutors\\n\\nin the initial criminal proceedings); Guzman-Rivera, 55 F.3d at 29\\n\\n(\\\"The prosecutorial nature of an act does not spread . . . like an\\n\\ninkblot, immunizing everything it touches.\\\").\\n\\n Kaczmarek's final attempt to cast her function in\\n\\nPenate's case as entitled to prosecutorial immunity, based on Reid\\n\\nv. New Hampshire, 56 F.3d 332 (1st Cir. 1995), misses because it\\n\\ntrains its sights on Kaczmarek's conduct rather than on her\\n\\nfunction. The prosecutors in Reid enjoyed absolute immunity from\\n\\nclaims that they intentionally withheld evidence while trying the\\n\\n\\n - 20 -\\n\\fplaintiff on criminal charges. Id. at 337; see also Campbell v.\\n\\nMaine, 787 F.2d 776, 778 (1st Cir. 1986) (per curiam) (same).\\n\\nKaczmarek argues that she is entitled to immunity just the same\\n\\nbecause, like the prosecutors in Reid, she \\\"used her discretion to\\n\\nevaluate\\\" the evidence at issue and to determine that the evidence\\n\\nwas \\\"irrelevant\\\" to Penate.\\n\\n But Reid explained that absolute immunity attaches \\\"when\\n\\na prosecutor evaluates evidence and interviews witnesses in\\n\\npreparation for trial,\\\" 56 F.3d at 337 (citing Buckley, 509 U.S.\\n\\nat 273), and that one aspect of this immunity-protected function\\n\\nis \\\"determin[ing] what evidence . . . [i]s exculpatory and subject\\n\\nto disclosure\\\" to the defense, id.; see also Warney v. Monroe Cty.,\\n\\n587 F.3d 113, 125 (2d Cir. 2009) (\\\"[T]he disclosure of [Brady]\\n\\nevidence to opposing counsel is an advocacy function.\\\"); Imbler,\\n\\n424 U.S. at 431 n.34 (analogizing withholding exculpatory evidence\\n\\nto a prosecutor's use of perjured testimony during trial). Reid's\\n\\nholding thus rested not on \\\"the act itself\\\" -- analyzing\\n\\npotentially exculpatory evidence -- but on \\\"the nature and function\\n\\nof the act\\\" -- analyzing evidence in preparation to present the\\n\\nstate's case. Mireles, 502 U.S. at 13 (internal quotation marks\\n\\nomitted); see also Buckley, 509 U.S. at 276 n.7 (confirming that\\n\\nimmunity for \\\"obtaining, reviewing, and evaluating evidence\\\"\\n\\ndepends on whether those actions were taken in an \\\"administrative\\\"\\n\\nor prosecutorial capacity (quoting Imbler, 424 U.S. at 431 n.33)).\\n\\n\\n - 21 -\\n\\f That police are afforded qualified immunity from Brady\\n\\nclaims further illustrates that the function for which the evidence\\n\\nis analyzed, not the act of analyzing potentially exculpatory\\n\\nevidence, controls the type of immunity. See Drumgold v.\\n\\nCallahan, 707 F.3d 28, 38 (1st Cir. 2013) (denying claim of\\n\\nqualified immunity by police officer for suppression of evidence).\\n\\nIndeed, the operative allegations in Count IV of the complaint\\n\\nallege that Kaczmarek withheld Brady material, as a police officer\\n\\nmight, by \\\"concealing Brady material,\\\" from the court where Penate\\n\\nwas tried and from Penate's prosecutor.\\n\\n Finally, the functional tie present in Reid is absent\\n\\nhere: we have already concluded that Kaczmarek's decisions to\\n\\nwithhold evidence in Penate's case were not, on the facts alleged,\\n\\nan aspect of her preparation to present the state's case against\\n\\nFarak. In short, Kaczmarek does not enjoy absolute prosecutorial\\n\\nimmunity from Penate's suit because of her role as Farak's\\n\\nprosecutor.\\n\\nC. Absolute Immunity of Government Attorneys\\n\\n The next issue is Kaczmarek's theory that she enjoys\\n\\nabsolute immunity because she was a government attorney performing\\n\\nan advocacy function when she advised Foster on the AGO's responses\\n\\nto the Ballou subpoena and to the subsequent court order requiring\\n\\ndisclosure of documents.\\n\\n\\n\\n\\n - 22 -\\n\\f This theory of immunity is derived from Butz v. Economou,\\n\\n438 U.S. 478 (1978), which held that \\\"agency officials\\\" enjoy\\n\\nabsolute immunity in \\\"performing certain functions analogous to\\n\\nthose of a prosecutor,\\\" including \\\"initiat[ing] administrative\\n\\nproceedings\\\" and \\\"presenting evidence in an agency hearing.\\\" Id.\\n\\nat 515-16. Butz itself involved claims against, among others, a\\n\\nDepartment of Agriculture attorney who had brought an\\n\\nadministrative enforcement proceeding against the plaintiff. Id.\\n\\nat 482.\\n\\n Kaczmarek cites to out-of-circuit cases extending Butz\\n\\nto officials appointed to initiate civil proceedings for the\\n\\ngovernment or to defend the government in civil proceedings.8 See,\\n\\ne.g., Schrob v. Catterson, 948 F.2d 1402, 1413 (3d Cir. 1991)\\n\\n(initiating a civil forfeiture proceeding)); Murphy v. Morris, 849\\n\\nF.2d 1101, 1105 (8th Cir. 1988) (defending government in a civil\\n\\nsuit); Barrett v. United States, 798 F.2d 565, 572-73 (2d Cir.\\n\\n1986) (same).9 She argues that these cases and Butz hold that\\n\\n\\n\\n 8 This circuit has not extended Butz to government\\nattorneys outside the administrative context. We have granted\\nabsolute immunity to, for example, members of a state medical\\nlicensing board in initiating a licensure revocation proceeding,\\nWang v. N.H. Bd. of Registration in Med., 55 F.3d 698, 701 (1st\\nCir. 1995), and to officers at a state insurance bureau in deciding\\nto settle a violation through consent agreement rather than\\nadministrative proceeding, Knowlton v. Shaw, 704 F.3d 1, 6 (1st\\nCir. 2013).\\n 9 Kaczmarek likens herself to state government attorneys\\ngranted immunity by the Second Circuit in Barrett for their\\n\\n\\n - 23 -\\n\\f\\\"government attorneys who are not formally designated as\\n\\nprosecutors are also entitled to absolute immunity when their\\n\\nfunction is intimately associated with the judicial process.\\\"\\n\\nThat reading is undoubtedly too broad. Butz involved agency\\n\\nattorneys with assigned roles in a quasi-judicial administrative\\n\\nproceeding. And the out-of-circuit cases involved attorneys\\n\\nappointed to represent the government in initiating or defending\\n\\na civil proceeding. No case has extended absolute immunity to a\\n\\ngovernment attorney like Kaczmarek for merely assisting, behind\\n\\nthe scenes, in a state's response to a court request for documents.\\n\\nAnd we do not believe that such an extension is \\\"necessary to\\n\\nprotect the judicial process.\\\" Burns, 500 U.S. at 485.\\n\\n But, even assuming that Butz immunity were as broad as\\n\\nKaczmarek argues it is, her theory would fail on its own terms.\\n\\nThe facts alleged in the complaint do not support it. See Odd v.\\n\\nMalone, 538 F.3d 202, 208 (3d Cir. 2008) (emphasizing the \\\"fact-\\n\\nintensive nature\\\" of the functional approach to absolute\\n\\nimmunity).\\n\\n To recap the basic events, the subpoena duces tecum\\n\\nreceived by Ballou \\\"command[ed] the production of all documents\\n\\n\\n\\nassignment to defend the state in a civil suit filed in state\\ncourt. 798 F.2d at 573. But that holding does not encompass\\nKaczmarek's claim to immunity. As we have already explained,\\nKaczmarek did not represent the DA in the Penate prosecution.\\nAnd, as we will explain, Kaczmarek was not the AGO's designee to\\nrespond to the discovery requests.\\n\\n\\n - 24 -\\n\\fand photographs pertaining to the investigation of Sonja Farak and\\n\\nthe Amherst Drug Lab.\\\" Later, the judge ordered Ballou to produce\\n\\nany previously undisclosed evidence in his file. Foster was the\\n\\nAGO attorney responsible for handling the AGO's answers to the\\n\\nsubpoena and court order. She had conversations with Kaczmarek\\n\\nand others in the course of formulating these responses.\\n\\n As we read the core facts alleged in the complaint, in\\n\\nthese conversations with Foster, Kaczmarek primarily functioned as\\n\\na custodian of evidence. This is an administrative function not\\n\\n\\\"analogous\\\" to the advocacy of a prosecutor, Butz, 438 U.S. at\\n\\n515, nor otherwise intimately associated with the judicial\\n\\nprocess,10 see Odd, 538 F.3d at 213 (denying claim of absolute\\n\\nimmunity for a \\\"primarily administrative\\\" function); see also,\\n\\ne.g., Knowlton v. Shaw, 704 F.3d 1, 5 (1st Cir. 2013) (\\\"Absolute\\n\\nimmunity . . . is not available to . . . officials whose actions\\n\\nare primarily administrative . . . .\\\"); Perez v. Ellington, 421\\n\\nF.3d 1128, 1133 (10th Cir. 2005) (\\\"Absolute immunity does not\\n\\n\\n\\n\\n 10 Kaczmarek also argues, relying on Van de Kamp, that she\\nis absolutely immune because she advised Foster, whom the district\\ncourt found to be absolutely immune, see Penate, 2018 WL 6437077,\\nat *14. Van de Kamp, however, granted immunity to supervisors of\\nprosecutors and to the prosecutor's \\\"colleagues\\\" who shared an\\n\\\"intimate[] association with the judicial phase of the criminal\\nprocess.\\\" See 555 U.S. at 345-46. Kaczmarek was not Foster's\\nsupervisor. And our conclusion that Kaczmarek could be found not\\nto have shared such an association with the judicial phase of the\\ncriminal process distinguishes her from the hypothetical\\ncolleagues the Supreme Court deemed immune in Van de Kamp.\\n\\n\\n - 25 -\\n\\fextend to actions 'that are primarily investigative or\\n\\nadministrative in nature' . . . .\\\" (quoting Pfeiffer v. Hartford\\n\\nFire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991)).\\n\\n That Kaczmarek acted as an evidence custodian is\\n\\nconsistent first of all with the AG's own description of its role\\n\\nin Penate's proceeding. The AGO represented to the state court\\n\\nevaluating Penate's motion for a new trial that the AG was \\\"not\\n\\nthe prosecutor\\\" of Penate's case. Instead, the AG stated that,\\n\\nin responding to the subpoena and court order, it had been a\\n\\n\\\"non-party from which the defendants . . . sought . . .\\n\\ndiscovery.\\\" \\\"In that capacity,\\\" the AGO claimed to have acted \\\"as\\n\\nany other non-party might.\\\" Our characterization of Kaczmarek's\\n\\nfunction follows from this admission by the AG that it was \\\"not\\n\\nthe prosecutor\\\" but rather a non-party simply providing requested\\n\\nevidence.\\n\\n Other key facts alleged confirm this characterization as\\n\\nto Kaczmarek herself. Kaczmarek's role in the AG's Enterprise and\\n\\nMajor Crimes Unit was to prosecute crimes. A different unit, the\\n\\nAppeals Division, where Foster worked, handled the AGO's responses\\n\\nto subpoenas. Kaczmarek, in other words, was involved in the\\n\\nresponse to the subpoena and court order only because she was the\\n\\nperson familiar with the materials requested. The complaint thus\\n\\nalleges that Kaczmarek's primary role was to inform Foster about\\n\\n\\n\\n\\n - 26 -\\n\\fthe existence, or non-existence, of responsive documents among\\n\\nthose materials.\\n\\n In performing this role, Kaczmarek \\\"serv[ed] the same\\n\\nnon-adversarial function as police officers . . . and other\\n\\nclerical state employees\\\" able to identify and describe evidence\\n\\nin government possession. Yarris, 465 F.3d at 138 (holding that\\n\\nformer prosecutors who stonewalled requests to test evidence acted\\n\\nnot like prosecutors entitled to absolute immunity but as\\n\\n\\\"custodian[s] of evidence\\\"). This function, whether performed by\\n\\na government lawyer like Kaczmarek or by a police officer, is an\\n\\nadministrative one, not analogous to the advocacy of a prosecutor,\\n\\nnor otherwise closely associated with the judicial process. See\\n\\nid. at 137-38.\\n\\n The administrative nature of this role here is further\\n\\napparent in the nature of the subpoena and order. The subpoena\\n\\nrequested all relevant documents and the order any previously\\n\\nundisclosed documents. Informing Foster whether documents\\n\\nresponsive to such explicit orders existed among the Farak\\n\\nmaterials did not require advocacy by Kaczmarek. In this, our\\n\\nview is consistent with Odd v. Malone, 538 F.3d at 213 (Hardiman,\\n\\nJ.), which held that a prosecutor responsible for \\\"informing the\\n\\ncourt about the status of a detained witness\\\" was performing an\\n\\nadministrative function. Id. at 213. There, too, the function's\\n\\nadministrative nature was \\\"especially\\\" clear \\\"in light of\\\" the\\n\\n\\n - 27 -\\n\\ffact that the court's order requesting the information was\\n\\n\\\"explicit.\\\" Id.\\n\\n To the extent Kaczmarek did use discretion or legal\\n\\nknowledge in advising Foster, that does not change our conclusion\\n\\nthat Kaczmarek's primary function was an administrative one not\\n\\nentitled to absolute government attorney immunity. As we\\n\\nexplained in the previous section, it is the function for which\\n\\nevidence is evaluated, not the act of analyzing evidence itself\\n\\nwhich controls the type of immunity. And, here, the complaint\\n\\nalleges that Kaczmarek's primary function in analyzing the Farak\\n\\nmaterials was an administrative one -- to inform Foster whether\\n\\nthose materials were responsive.\\n\\n III.\\n\\n The district court's denial of the motion to dismiss is\\n\\naffirmed.\\n\\n\\n\\n\\n - 28 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4410483/\", \"author_raw\": \"of Massachusetts, Inc., Emma Quinn-Judge, Monica Shah, and Zalkind\"}]}"},"judge1":{"kind":"string","value":"BARRON"},"judge2":{"kind":"string","value":"KAYATTA"},"judge3":{"kind":"string","value":"LYNCH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4633230/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Rolando PENATE, Plaintiff, Appellee, v. Anne KACZMAREK, Defendant, Appellant, Kris Foster ; Randall Ravitz; Joseph Ballou ; Robert Irwin; Randy Thomas; Sonja Farak; Sharon Salem; James Hanchett; Julie Nassif; Linda Han ; Estate of Kevin Burnham; Steven Kent; John Wadlegger; Gregg Bigda; Edward Kalish; City of Springfield, Defendants.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-2261\n\n ROLANDO PENATE,\n\n Plaintiff, Appellee,\n\n v.\n\n ANNE KACZMAREK,\n\n Defendant, Appellant,\n\n KRIS FOSTER; RANDALL RAVITZ; JOSEPH BALLOU; ROBERT IRWIN; RANDY\nTHOMAS; SONJA FARAK; SHARON SALEM; JAMES HANCHETT; JULIE NASSIF;\nLINDA HAN; ESTATE OF KEVIN BURNHAM; STEVEN KENT; JOHN WADLEGGER;\n GREGG BIGDA; EDWARD KALISH; CITY OF SPRINGFIELD,\n\n Defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Katherine A. Robertson, U.S. Magistrate Judge]\n\n\n Before\n\n Lynch, Kayatta, and Barron,\n Circuit Judges.\n\n\n David H. Rich, with whom Maria T. Davis and Todd & Weld, LLP\nwere on brief, for appellant.\n Luke Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on\nbrief, for appellee.\n Matthew R. Segal, American Civil Liberties Union Foundation\nof Massachusetts, Inc., Emma Quinn-Judge, Monica Shah, and Zalkind\nDuncan & Bernstein LLP on brief for American Civil Liberties Union\nof Massachusetts and Massachusetts Association of Criminal Defense\nLawyers, amici curiae.\n\fJune 26, 2019\n\f LYNCH, Circuit Judge. This appeal presents novel\n\nquestions about the scope of absolute prosecutorial and government\n\nattorney immunity from claims asserted under 42 U.S.C. § 1983.\n\n Appellee Rolando Penate filed this § 1983 action against\n\nseventeen defendants after the dismissal with prejudice of his\n\n2013 Massachusetts criminal conviction for drug distribution.\n\nThis appeal is from an order denying absolute immunity to one of\n\nthose defendants, Anne Kaczmarek, a former Massachusetts Assistant\n\nAttorney General. Penate's complaint alleged that Kaczmarek\n\nunlawfully withheld (and worked with others to unlawfully\n\nwithhold) exculpatory evidence from Penate's counsel; from the\n\nHampden County, Massachusetts District Attorney, whose office\n\nprosecuted Penate in Hampden County Superior Court; and from that\n\nstate court. The withheld evidence showed that a drug laboratory\n\nchemist, Sonja Farak, had been battling drug addiction and had\n\ntampered with samples she was assigned to test around the time she\n\ntested the samples in Penate's case. Kaczmarek had obtained the\n\nevidence at issue while she was prosecuting Farak on state charges\n\nof tampering with evidence and drug possession.\n\n After the magistrate judge rejected Kaczmarek's motion\n\nto dismiss on grounds of absolute immunity, Penate v. Kaczmarek,\n\nNo. 17-cv-30119, 2018 WL 6437077, at *16 (D. Mass. Dec. 7, 2018),\n\nKaczmarek filed this interlocutory appeal. We affirm.\n\n\n\n\n - 3 -\n\f We are required to \"make two important assumptions about\n\nthe case: first, that [Penate's] allegations are entirely true;\n\nand, second, that they allege constitutional violations for which\n\n§ 1983 provides a remedy.\" Buckley v. Fitzsimmons, 509 U.S. 259,\n\n261 (1993); see also Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 28\n\n(1st Cir. 1995). The first of these assumptions is critical here,\n\nas our rejections of Kaczmarek's novel claims to absolute immunity\n\nare fact-bound conclusions.\n\n After recounting the allegations in the complaint and\n\nthe history of this suit, we address Kaczmarek's two theories for\n\nabsolute immunity.1 She first argues that she enjoys absolute\n\nprosecutorial immunity because the conduct alleged in the\n\ncomplaint occurred during the time period when she was assigned to\n\nprosecute Farak. We reject this argument because, on the facts\n\nalleged in the complaint, Kaczmarek's decision to withhold\n\nevidence from the criminal prosecution of Penate lacked a\n\n\"functional tie\" to her prosecutorial role in Farak's separate\n\ncase. Buckley, 500 U.S. at 277. Kaczmarek alternatively seeks\n\nabsolute immunity on the ground that, in performing some conduct\n\nalleged in the complaint, she functioned as an advocate for the\n\ngovernment in an evidentiary hearing associated with the criminal\n\ncase against Penate. But certain allegations in the complaint are\n\n\n 1 Kaczmarek has not raised the defense of qualified\nimmunity.\n\n\n - 4 -\n\fbest read to allege that Kaczmarek played an administrative role\n\nconcerning this hearing. On that basis, we reject this second\n\nargument for absolute immunity.\n\n I.\n\nA. Facts Alleged in the Complaint\n\n Penate was charged by the Hampden County District\n\nAttorney with several drug-related offenses on November 16, 2011.\n\nThe suspected drugs were sent to the Massachusetts Department of\n\nPublic Health's Amherst Drug Lab and were assigned to Farak for\n\nanalysis. Farak reported that the substances from Penate's case\n\nhad all tested positive for the presence of controlled substances.\n\n Farak tested the samples on December 22, 2011, January\n\n6, 2012, and January 9, 2012. Also on December 22, Farak entered\n\non a Diary Card kept as part of her treatment for drug addiction\n\nthat she \"tried to resist using [at] work but ended up failing.\"\n\n Farak later placed this Diary Card in the trunk of her\n\ncar, where, as discussed below, it was found, along with similar\n\nworksheets, by the state police. Those documents revealed that,\n\nduring the period that the lab held the samples in Penate's case,\n\nFarak had struggled with drug addiction, had frequently consumed\n\ndrugs while at work, and had often tampered with and used drug\n\nsamples and supplies held by the lab. At the heart of this case\n\nis Kaczmarek's failure to disclose this exculpatory evidence to\n\n\n\n\n - 5 -\n\fPenate, to his prosecutor, and to the court in his criminal\n\nproceeding.2\n\n The charges against Penate were still pending when the\n\nMassachusetts Attorney General's Office (AGO or AG) began\n\ninvestigating Farak for misconduct at the Amherst Drug Lab. On\n\nJanuary 19, 2013, AGO investigators obtained a warrant to search\n\nFarak's car, searched the car, and seized hundreds of pages of\n\npaper, including the Diary Card and other mental health worksheets.\n\n Farak was charged with tampering with evidence and drug\n\npossession on January 22, 2013. Kaczmarek, a prosecutor in the\n\nAG's Enterprise and Major Crimes Unit, was assigned to prosecute\n\nFarak, who ultimately pleaded guilty in January 2014.\n\n The complaint then tracks the AGO's actions related to\n\nthe exculpatory evidence that Penate claims was unlawfully\n\nwithheld during his criminal proceeding. The Diary Card and other\n\nmental health worksheets first went unmentioned or were\n\n\n 2 Penate also claims that Kaczmarek somehow violated his\nconstitutional rights by artificially narrowing the scope of the\ninvestigation against Farak, after Farak had been arrested and\narraigned. But, because that claim concerns Kaczmarek's choices\nregarding the course of a prosecution she was actually conducting,\nafter a probable cause determination had been made, absolute\nimmunity does bar it. See Buckley, 509 U.S. at 273 (\"[A]cts\nundertaken by a prosecutor in preparing for the initiation of\njudicial proceedings or for trial, and which occur in the course\nof his role as an advocate for the State, are entitled to the\nprotections of absolute immunity.\"); see also Kalina v. Fletcher,\n522 U.S. 118, 129 (1997) (holding that a prosecutor's \"activities\nin connection with the preparation and filing of . . . charging\ndocuments . . . are protected by absolute immunity\").\n\n\n - 6 -\n\fcharacterized as \"assorted lab paperwork\" by investigators in\n\npolice reports and returns for search warrants. \"This was not an\n\noversight,\" the complaint alleges, \"but reflected a collective\n\ndecision on the part of Kaczmarek, . . . [Police Sergeant Joseph]\n\nBallou, and . . . [others] to deny the existence of this highly\n\nprobative evidence.\" The complaint then alleges that, around the\n\nsame time, Kaczmarek discouraged Ballou from following up on an\n\nallegation of evidence tampering by Farak in 2005.\n\n In February 2013, Ballou attached copies of the Diary\n\nCard and other mental health worksheets to an email to Kaczmarek\n\nwith the subject line \"FARAK Admissions.\" \"Here are those forms\n\nwith the admissions of drug use I was talking about,\" he wrote.\n\n In March, neither the Diary Card nor the other mental\n\nhealth worksheets were included in the packets of evidence related\n\nto Farak provided to all of the Massachusetts District Attorneys.\n\nThe packets were accompanied by a letter from the head of the AG's\n\nCriminal Bureau, John Verner; the letter explained that the AG was\n\ninvestigating Farak and stated, \"Pursuant to this office's\n\nobligation to provide potentially exculpatory information to the\n\nDistrict Attorneys as well as information necessary to your\n\nOffices' determination about how to proceed with cases in which\n\nrelated narcotic evidence was tested at the Amherst Laboratory,\n\nplease find the below listed materials . . . .\"\n\n\n\n\n - 7 -\n\f That same day in March, Kaczmarek submitted to Verner\n\nand her other supervisors a Prosecution Memo that contained\n\nmultiple references to Farak's mental health worksheets.\n\nKaczmarek stated that the worksheets had \"not been submitted to\n\nthe [Farak] grand jury out of an abundance of caution,\" although\n\n\"[c]ase law\" indicated that \"the paperwork [was] not privileged.\"\n\nVerner responded with a hand-written note telling her that these\n\ndocuments had \"NOT\" been \"turned over to DAs offices yet.\"\n\n Despite this withholding of the mental health worksheets\n\nfrom the District Attorneys (and later from Penate and the Hampden\n\nCounty Superior Court), Kaczmarek did disclose the worksheets to\n\nFarak's defense attorney. In doing so, Kaczmarek told the defense\n\nthat the documents would not be turned over to any \"Farak\n\ndefendants\" (that is, defendants seeking relief based on Farak's\n\nmisconduct) and that the AG's office considered the documents to\n\nbe \"privileged.\"\n\n Penate, who was awaiting his trial on the criminal\n\ncharges, filed a motion to dismiss in July 2013 based on the\n\ncharges against Farak. The judge ordered an evidentiary hearing\n\non the issue of Farak's misconduct between November 2011 and\n\nJanuary 2012, when the lab had custody of the substances from\n\nPenate's case. Penate's motion was consolidated with similar\n\nmotions from about a dozen Farak-defendant cases pending in Hampden\n\nCounty Superior Court. A hearing in these consolidated motions\n\n\n - 8 -\n\fon the timing and scope of Farak's misconduct was scheduled for\n\nSeptember 9, 2013.\n\n Before the hearing, Assistant District Attorney Eduardo\n\nVelazquez, who was prosecuting Penate, sought any exculpatory\n\nevidence for the hearing from the AGO. He was told that all\n\nrelevant evidence had already been provided to the DAs, even though\n\nthe mental health worksheets, as Verner had noted, had \"NOT\" been\n\ndisclosed.\n\n Ballou received a subpoena duces tecum for the hearing\n\non the consolidated motions \"command[ing] the production of all\n\ndocuments and photographs pertaining to the investigation of Sonja\n\nFarak and the Amherst Drug Lab.\"3 Assistant Attorney General Kris\n\nFoster, from the AGO's Appeals Division, was assigned to handle\n\nthe response to the subpoena. In meetings about how to respond\n\nto the subpoena, Kaczmarek divulged to Foster and Foster's\n\nsupervisor, Randall Ravitz, that she and Ballou possessed the\n\nmental health worksheets. But Kaczmarek took the position that\n\nthese documents were irrelevant to the Farak defendants. She also\n\n\n\n\n 3 Before Penate's motion was consolidated with the other\nFarak defendants' motions, Penate served Ballou and Kaczmarek with\nsubpoenas to testify at the evidentiary hearing ordered in Penate's\ncase. However, the complaint does not allege that Kaczmarek was\nsubpoenaed to appear at the post-conviction proceeding. The\nallegations in the complaint about Kaczmarek recounted in the\nfollowing paragraphs all pertain to the Ballou subpoena and a\nrelated court order.\n\n\n - 9 -\n\furged that the documents should not be produced because several\n\ncontained information about Farak's mental health treatment.\n\n Foster filed a motion to quash the subpoena. In the\n\nalternative, Foster sought a protective order excluding from the\n\nscope of the subpoena information including \"emails responsive to\n\nthe subpoena\" and \"information concerning the health or medical or\n\npsychological treatment of individuals.\"\n\n Ballou testified at the hearing on the consolidated\n\nmotions. At Foster's instruction, Ballou did not reveal the\n\nexistence of the mental health worksheets. During the hearing,\n\nthe judge ordered Foster to review Ballou's \"file\" on Farak and to\n\npresent to the court for in camera review copies of any undisclosed\n\ndocuments in the file.\n\n Foster, Kaczmarek, and Verner discussed whether the\n\norder required Ballou to submit his emails to Kaczmarek about\n\nFarak. Kaczmarek ultimately asked Ballou to bring his file about\n\nthe case to Boston for her to review. The paper file Ballou\n\nbrought to Boston contained none of the mental health worksheets,\n\nso Kaczmarek told Foster that all of the documents in Ballou's\n\nfile had already been disclosed. Foster then sent the judge a\n\nletter stating that \"every document in [Ballou's] possession has\n\nalready been disclosed.\"\n\n The day Foster sent the letter, Penate's counsel emailed\n\nFoster requesting to inspect the documents seized from Farak's\n\n\n - 10 -\n\fcar. Foster forwarded the email to Kaczmarek, who responded: \"No.\n\nWhy is this relevant to this case. I really don't like him.\"\n\nFoster told Penate's counsel that the AG's position was that the\n\nevidence from the car was irrelevant to any case other than\n\nFarak's.\n\n Penate's motion to dismiss the criminal charges was\n\ndenied by the state court based on a finding that Farak's\n\nmisconduct began after she handled the samples in Penate's case.\n\nAlthough Penate subpoenaed Kaczmarek to testify at his trial,\n\nFoster's motion to quash the subpoena was granted, as was\n\nVelazquez's motion in limine to preclude Penate from arguing that\n\nFarak was engaged in misconduct between November 2011 and January\n\n2012. In December 2013, Penate was convicted of one count of\n\nDistributing a Class A substance and was sentenced to five to seven\n\nyears in prison.\n\n In October 2014, an inspection of the evidence found in\n\nFarak's car for a different Massachusetts criminal case revealed\n\nthe Diary Card and the other mental health worksheets. This\n\ndiscovery prompted Verner, the head of the AG's Criminal Bureau,\n\nto send copies of all of the documents seized in the car to the\n\nMassachusetts DAs in November 2014.\n\n Based on the newly produced evidence, Penate filed a\n\nmotion for a new trial in 2015, which was again consolidated with\n\nthe cases of other Farak defendants. These defendants sought\n\n\n - 11 -\n\fdiscovery from the AGO on prosecutorial misconduct by attorneys in\n\nthat office. In opposing the discovery, the AGO represented:\n\n The defendants' proposed claim of\n prosecutorial misconduct based on actions by\n the Attorney General's Office fails for the\n very simple fact that the AGO is not the\n prosecutor of any of these cases. Certainly,\n the AGO prosecuted Sonja Farak; but this is\n not Farak's case. Instead, in these cases the\n AGO was a non-party from which the defendants\n previously sought expansive post-conviction\n discovery. In that capacity, the AGO was well\n supported by case law in presenting arguments\n opposing the proposed discovery requests, just\n as any other non-party might do.\n\n In January 2017, Penate's motion for a new trial was\n\nallowed, with the assent of the Hampden County DA. In June 2017,\n\na judge dismissed Penate's conviction with prejudice. The judge\n\nfound that \"Kaczmarek's and Foster's deliberate withholding of\n\nexculpatory evidence was particularly egregious in the Penate\n\ncase\" and \"qualifies as a fraud upon the court.\"\n\nB. History of this Suit\n\n Penate filed this suit on September 5, 2017 in federal\n\ndistrict court in Massachusetts. His complaint asserted two\n\nclaims against Kaczmarek: the § 1983 claim already mentioned and\n\na state tort law claim for intentional infliction of emotional\n\ndistress. Under Massachusetts law, Kaczmarek's immunity from the\n\ntort claim falls with her immunity from the § 1983 claim.4 See\n\n\n\n 4 Kaczmarek's opening brief on appeal argues in a single\nparagraph that the tort claim is also \"barred by the general\n\n\n - 12 -\n\fChicopee Lions Club v. Dist. Att'y for Hampden Dist., 485 N.E.2d\n\n673, 677 (Mass. 1985).\n\n Count IV of the complaint asserts § 1983 violations by\n\nKaczmarek, Foster, and Foster's supervisor, Ravitz. It alleges\n\nthat Kaczmarek knew that the mental health worksheets were\n\nexculpatory evidence in the cases of Farak defendants like Penate\n\nand that Kaczmarek had a duty under Brady v. United States, 373\n\nU.S. 83 (1963), to disclose such evidence and to make truthful\n\nstatements about such evidence. In paragraph 433, the complaint\n\nstates that Kaczmarek, Foster, and Ravitz, \"prior to, during, and\n\nfollowing Plaintiff's trial, intentionally, recklessly, and/or\n\nwith deliberate indifference to their legal obligations, concealed\n\nBrady material, lied about, and otherwise failed to disclose Brady\n\nmaterial to the Hampden County ADA prosecuting Plaintiff.\"\n\nParagraph 434 alleges the same failure to disclose, to \"Plaintiff's\n\ncounsel and the Hampden County Superior Court.\" 5 Count VIII\n\n\nMassachusetts common law litigation privilege.\" But Kaczmarek did\nnot raise this defense in the district court, the magistrate judge\ndid not rule on it, and we do not consider it. See United States\nv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990); see also Espinal-\nDominguez v. Puerto Rico, 352 F.3d 490, 495-96 (1st Cir. 2003)\n(describing the scope of appellate jurisdiction from non-final\ndistrict court orders).\n 5 In the order denying Kaczmarek's motion to dismiss, the\nmagistrate judge recounted the complaint's allegations that\nKaczmarek conspired with investigators to mischaracterize the\nmental health worksheets as \"lab paperwork\" and that Kaczmarek\ndiscouraged Ballou from following up on a lead. See Penate, 2018\nWL 6437077, at *14. To the extent these allegations are offered\nto support a claim that Kaczmarek violated Penate's constitutional\n\n\n - 13 -\n\falleged that this conduct by Kaczmarek amounted to the intentional\n\ninfliction of emotional distress.\n\n Kaczmarek's motion to dismiss the complaint argued that\n\nshe was entitled to absolute immunity, raising the two theories\n\npreviously identified. The magistrate judge denied the motion\n\nbecause Penate's claims against Kaczmarek were \"not related to her\n\nprosecution of Farak,\" Penate, 2018 WL 6437077, at *16, and because\n\nKaczmarek was not engaged in a function analogous to a prosecutor's\n\nwhen she worked on the requests for exculpatory information in the\n\nAG's and Ballou's possession, see id. at *15.\n\n II.\n\nA. Jurisdiction, Standard of Review, and Kaczmarek's Burden\n\n We have jurisdiction over Kaczmarek's interlocutory\n\nappeal from the denial of immunity because it \"turns on a purely\n\nlegal question.\" Limone v. Condon, 372 F.3d 39, 50 (1st Cir.\n\n2004); see also Filler v. Kellett, 859 F.3d 148, 152 (1st Cir.\n\n\n\nrights by artificially narrowing the scope of the investigation\nagainst Farak, we have held, in footnote 2, supra, that Kaczmarek\nis absolutely immune.\n Penate argues in his brief that these factual\nallegations were made in support of paragraph 433 of the complaint,\nwhich alleges that Kaczmarek failed to disclose exculpatory\nevidence to the DAs, including to the DA prosecuting Penate. And\nKaczmarek admits in her reply brief that these allegations could\nproperly be used to support the theory in paragraph 433. To the\nextent the facts are alleged for this purpose, we agree with Penate\nthat these two factual allegations are well-pleaded and need not\nbe disregarded as conclusory. See Ocasio-Hernández v. Fortuño-\nBurset, 640 F.3d 1, 14 (1st Cir. 2011) (defining well-pleaded\nfacts).\n\n\n - 14 -\n\f2017) (lacking interlocutory jurisdiction because immunity\n\ndepended on facts requiring further development). Penate's\n\ncomplaint alleges the facts necessary to evaluate Kaczmarek's\n\ndefense; we are required to take those facts as true at this stage;\n\nand Kaczmarek, in any event, does not dispute them. The only\n\nquestion is whether, on those facts, Kaczmarek is entitled to\n\nabsolute immunity and thus to dismissal of the complaint.\n\n Our review is de novo. Garnier v. Rodríguez, 506 F.3d\n\n22, 26 (1st Cir. 2007). We start with \"[t]he presumption . . .\n\nthat qualified rather than absolute immunity is sufficient.\"\n\nBurns v. Reed, 500 U.S. 478, 486 (1991). And Kaczmarek, as the\n\n\"official seeking absolute immunity[,] bears the burden of showing\n\nthat such immunity is justified.\" Id. at 486. That burden is a\n\nheavy one. See, e.g., Buckley, 509 U.S. at 269 (\"[W]e have been\n\n'quite sparing' in recognizing absolute immunity for state actors\n\n. . . .\" (quoting Forrester v. White, 484 U.S. 219, 224 (1988)).\n\n Kaczmarek has not satisfied it here, either on her first\n\ntheory that she is entitled to absolute prosecutorial immunity\n\nbecause she prosecuted Farak or on her second theory that she\n\nshould enjoy the absolute immunity afforded to certain government\n\nattorneys. We address these theories in turn.\n\nB. Absolute Prosecutorial Immunity\n\n The Supreme Court first recognized the absolute immunity\n\nof prosecutors from certain § 1983 claims in Imbler v. Pachtman,\n\n\n - 15 -\n\f424 U.S. 409 (1976). There, the Court held that prosecutors are\n\nabsolutely immune in exercising the core prosecutorial functions\n\nof \"initiating a prosecution and . . . presenting the State's\n\ncase.\" Id. at 431.\n\n Following Imbler, the Court has used a \"functional\n\napproach\" to decide whether state officials are entitled to\n\nabsolute immunity from particular § 1983 claims. Burns, 500 U.S.\n\nat 486. This approach looks to \"the nature of the function\n\nperformed, not the identity of the actor who performed it,\"\n\nForrester, 484 U.S. at 229, nor to \"the particular act\" in\n\nisolation, Mireles v. Waco, 502 U.S. 9, 12 (1991) (per curiam)\n\n(citing Stump v. Sparkman, 435 U.S. 349, 356 (1978)).\n\n Applying this approach, the Supreme Court has recognized\n\nthat several \"functions of contemporary prosecutors are entitled\n\nto absolute immunity.\" Buckley, 509 U.S. at 269. These include:\n\n\"appearing before a judge and presenting evidence in support of a\n\nmotion for a search warrant,\" Burns, 500 U.S. at 491, and\n\n\"prepar[ing] and filing . . . [a criminal] information and [a]\n\nmotion for an arrest warrant,\" Kalina v. Fletcher, 522 U.S. 118,\n\n129 (1997). The basic \"principle\" of these cases is \"that acts\n\nundertaken by a prosecutor in preparing for the initiation of\n\njudicial proceedings or for trial, and which occur in the course\n\nof his role as an advocate for the State, are entitled to the\n\nprotections of absolute immunity.\" Buckley, 509 U.S. at 273.\n\n\n - 16 -\n\f But the Supreme Court has rejected claims to absolute\n\nprosecutorial immunity where the prosecutor's conduct lacked a\n\n\"functional tie to [a] judicial process\" initiated by the\n\nprosecutor. Id. at 277. So, absolute immunity does not protect\n\nprosecutors when they give advice to police during a criminal\n\ninvestigation, Burns, 500 U.S. at 495-96, fabricate evidence long\n\nbefore a grand jury has made an indictment, Buckley, 509 U.S. 275-\n\n76, or make statements to the press in announcing an indictment,\n\nid. at 276-78. These functions have been deemed \"administrative\"\n\nor \"investigative,\" and, in exercising them, \"a prosecutor is in\n\nno different position than other executive officials,\" such as\n\npolice, and \"qualified immunity is the norm for them.\" Id. at\n\n278.\n\n All of these Supreme Court cases involved claims arising\n\nout of criminal proceedings which were initiated by the same\n\nofficials who were seeking absolute prosecutorial immunity. But\n\nKaczmarek was not Penate's prosecutor; 6 she rests her broad\n\nassertion of absolute prosecutorial immunity on her role as Farak's\n\nprosecutor. Kaczmarek's claim is thus a novel one, as neither the\n\n\n 6 Kaczmarek's agency, the AGO, had no control over\nPenate's prosecution and thus Kaczmarek cannot, and indeed does\nnot, claim to have been his prosecutor. See Kulwicki v. Dawson,\n969 F.2d 1454, 1467 (3d Cir. 1992) (denying prosecutor lacking\n\"official control over\" a prosecution prosecutorial immunity based\non that prosecution). Indeed, the AG, for whom Kaczmarek worked,\nadmitted that it was not Penate's prosecutor but rather \"was a\nnon-party from which [Penate] . . . sought . . . discovery.\"\n\n\n - 17 -\n\fSupreme Court nor this court has ever extended absolute\n\nprosecutorial immunity to conduct by a prosecutor in a proceeding\n\nnot initiated by that prosecutor or by an office that prosecutor\n\nsupervises.7\n\n Absolute immunity is not triggered here by the simple\n\nfact that the conduct alleged in the complaint occurred while\n\nKaczmarek was pursuing the commonwealth's criminal charges against\n\nFarak. See Filler, 859 F.3d at 153 (\"Importantly, absolute\n\nimmunity does not necessarily apply to all actions that a\n\nprosecutor may take once the 'judicial phase' begins.\"); Guzman-\n\nRivera, 55 F.3d at 29 (observing that absolute prosecutorial\n\nimmunity does not \"extend[] to all conduct that facilitates the\n\nprosecutorial function\"). As the Supreme Court has emphasized,\n\n\"the actions of a prosecutor are not absolutely immune merely\n\nbecause they are performed by a prosecutor.\" Buckley, 509 U.S.\n\nat 273. Rather, under the functional approach, Kaczmarek's\n\ndefense turns on the following question: was Kaczmarek functioning\n\nas Farak's prosecutor when she withheld evidence from Penate's\n\nproceeding? See id. at 277 (asking whether the prosecutor's\n\n\n 7 The Supreme Court held in Van de Kamp v. Goldstein, 555\nU.S. 335 (2009), that prosecutors were entitled to absolute\nimmunity for supervising their office's compliance with\nconstitutional disclosure requirements. Id. at 348. As Kaczmarek\ndid not work in or otherwise have control over the office of the\nDA prosecuting Penate, her claim to absolute prosecutorial\nimmunity does not come under the rubric of Van de Kamp. See id.\nat 345.\n\n\n - 18 -\n\fconduct had any \"functional tie to the judicial process\"); Burns,\n\n500 U.S. at 495 (asking whether \"the prosecutor's actions are\n\nclosely associated with the judicial process\" the prosecutor\n\ninitiated).\n\n Key facts alleged in the complaint answer that question\n\nin the negative. The most significant fact is that Kaczmarek\n\nturned over the mental health worksheets to Farak's defense. This\n\nshows that, when Kaczmarek orchestrated the withholding of that\n\nvery same evidence in Penate's case, she did not do so because\n\nkeeping the evidence under wraps was helpful to her prosecution of\n\nFarak. On the complaint's facts, we conclude jurors could find\n\nthat Kaczmarek's decisions about disclosure of evidence in\n\nPenate's case were not made based on her role as Farak's\n\nprosecutor. The absence of this \"functional tie\" between\n\nKaczmarek's prosecutorial duties and her conduct in Penate's case,\n\nif proven, would doom Kaczmarek's assertion of absolute\n\nprosecutorial immunity. Buckley, 509 U.S. at 277.\n\n The ties Kaczmarek points to do not show that she\n\nwithheld evidence in Penate's case as part of her advocacy in\n\nFarak's case. Kaczmarek emphasizes that her involvement in\n\nPenate's case occurred \"in the midst of her criminal prosecution\"\n\nof Farak. But, as we have already explained, the functional\n\napproach and the principle that prosecutorial immunity is not\n\ncoextensive with the judicial phase of the criminal process require\n\n\n - 19 -\n\fthat determinations about immunity turn not on accidents of timing\n\nbut on careful analyses of the functions being performed.\n\n Kaczmarek also stresses that her \"obligations\" to Penate\n\n\"arose solely because of her . . . role as Farak's prosecutor.\"\n\nKaczmarek possessed the evidence at issue because she was Farak's\n\nprosecutor, \"but that connection is too tenuous\" to show that\n\nKaczmarek functioned as a prosecutor when she withheld the evidence\n\nfrom Penate's case. Lampton v. Diaz, 639 F.3d 223, 227 (5th Cir.\n\n2011); see also id. at 227-28 (denying immunity for prosecutor's\n\ndisclosure of tax records acquired during prosecution to state\n\nethics board); Yarris v. Cty. of Delaware, 465 F.3d 129, 137-38\n\n(3d Cir. 2006) (denying absolute prosecutorial immunity to\n\nprosecutors who withheld evidence in post-conviction proceedings\n\nassigned to other prosecutors, even though the prosecutors had\n\nacquired the evidence at issue through their roles as prosecutors\n\nin the initial criminal proceedings); Guzman-Rivera, 55 F.3d at 29\n\n(\"The prosecutorial nature of an act does not spread . . . like an\n\ninkblot, immunizing everything it touches.\").\n\n Kaczmarek's final attempt to cast her function in\n\nPenate's case as entitled to prosecutorial immunity, based on Reid\n\nv. New Hampshire, 56 F.3d 332 (1st Cir. 1995), misses because it\n\ntrains its sights on Kaczmarek's conduct rather than on her\n\nfunction. The prosecutors in Reid enjoyed absolute immunity from\n\nclaims that they intentionally withheld evidence while trying the\n\n\n - 20 -\n\fplaintiff on criminal charges. Id. at 337; see also Campbell v.\n\nMaine, 787 F.2d 776, 778 (1st Cir. 1986) (per curiam) (same).\n\nKaczmarek argues that she is entitled to immunity just the same\n\nbecause, like the prosecutors in Reid, she \"used her discretion to\n\nevaluate\" the evidence at issue and to determine that the evidence\n\nwas \"irrelevant\" to Penate.\n\n But Reid explained that absolute immunity attaches \"when\n\na prosecutor evaluates evidence and interviews witnesses in\n\npreparation for trial,\" 56 F.3d at 337 (citing Buckley, 509 U.S.\n\nat 273), and that one aspect of this immunity-protected function\n\nis \"determin[ing] what evidence . . . [i]s exculpatory and subject\n\nto disclosure\" to the defense, id.; see also Warney v. Monroe Cty.,\n\n587 F.3d 113, 125 (2d Cir. 2009) (\"[T]he disclosure of [Brady]\n\nevidence to opposing counsel is an advocacy function.\"); Imbler,\n\n424 U.S. at 431 n.34 (analogizing withholding exculpatory evidence\n\nto a prosecutor's use of perjured testimony during trial). Reid's\n\nholding thus rested not on \"the act itself\" -- analyzing\n\npotentially exculpatory evidence -- but on \"the nature and function\n\nof the act\" -- analyzing evidence in preparation to present the\n\nstate's case. Mireles, 502 U.S. at 13 (internal quotation marks\n\nomitted); see also Buckley, 509 U.S. at 276 n.7 (confirming that\n\nimmunity for \"obtaining, reviewing, and evaluating evidence\"\n\ndepends on whether those actions were taken in an \"administrative\"\n\nor prosecutorial capacity (quoting Imbler, 424 U.S. at 431 n.33)).\n\n\n - 21 -\n\f That police are afforded qualified immunity from Brady\n\nclaims further illustrates that the function for which the evidence\n\nis analyzed, not the act of analyzing potentially exculpatory\n\nevidence, controls the type of immunity. See Drumgold v.\n\nCallahan, 707 F.3d 28, 38 (1st Cir. 2013) (denying claim of\n\nqualified immunity by police officer for suppression of evidence).\n\nIndeed, the operative allegations in Count IV of the complaint\n\nallege that Kaczmarek withheld Brady material, as a police officer\n\nmight, by \"concealing Brady material,\" from the court where Penate\n\nwas tried and from Penate's prosecutor.\n\n Finally, the functional tie present in Reid is absent\n\nhere: we have already concluded that Kaczmarek's decisions to\n\nwithhold evidence in Penate's case were not, on the facts alleged,\n\nan aspect of her preparation to present the state's case against\n\nFarak. In short, Kaczmarek does not enjoy absolute prosecutorial\n\nimmunity from Penate's suit because of her role as Farak's\n\nprosecutor.\n\nC. Absolute Immunity of Government Attorneys\n\n The next issue is Kaczmarek's theory that she enjoys\n\nabsolute immunity because she was a government attorney performing\n\nan advocacy function when she advised Foster on the AGO's responses\n\nto the Ballou subpoena and to the subsequent court order requiring\n\ndisclosure of documents.\n\n\n\n\n - 22 -\n\f This theory of immunity is derived from Butz v. Economou,\n\n438 U.S. 478 (1978), which held that \"agency officials\" enjoy\n\nabsolute immunity in \"performing certain functions analogous to\n\nthose of a prosecutor,\" including \"initiat[ing] administrative\n\nproceedings\" and \"presenting evidence in an agency hearing.\" Id.\n\nat 515-16. Butz itself involved claims against, among others, a\n\nDepartment of Agriculture attorney who had brought an\n\nadministrative enforcement proceeding against the plaintiff. Id.\n\nat 482.\n\n Kaczmarek cites to out-of-circuit cases extending Butz\n\nto officials appointed to initiate civil proceedings for the\n\ngovernment or to defend the government in civil proceedings.8 See,\n\ne.g., Schrob v. Catterson, 948 F.2d 1402, 1413 (3d Cir. 1991)\n\n(initiating a civil forfeiture proceeding)); Murphy v. Morris, 849\n\nF.2d 1101, 1105 (8th Cir. 1988) (defending government in a civil\n\nsuit); Barrett v. United States, 798 F.2d 565, 572-73 (2d Cir.\n\n1986) (same).9 She argues that these cases and Butz hold that\n\n\n\n 8 This circuit has not extended Butz to government\nattorneys outside the administrative context. We have granted\nabsolute immunity to, for example, members of a state medical\nlicensing board in initiating a licensure revocation proceeding,\nWang v. N.H. Bd. of Registration in Med., 55 F.3d 698, 701 (1st\nCir. 1995), and to officers at a state insurance bureau in deciding\nto settle a violation through consent agreement rather than\nadministrative proceeding, Knowlton v. Shaw, 704 F.3d 1, 6 (1st\nCir. 2013).\n 9 Kaczmarek likens herself to state government attorneys\ngranted immunity by the Second Circuit in Barrett for their\n\n\n - 23 -\n\f\"government attorneys who are not formally designated as\n\nprosecutors are also entitled to absolute immunity when their\n\nfunction is intimately associated with the judicial process.\"\n\nThat reading is undoubtedly too broad. Butz involved agency\n\nattorneys with assigned roles in a quasi-judicial administrative\n\nproceeding. And the out-of-circuit cases involved attorneys\n\nappointed to represent the government in initiating or defending\n\na civil proceeding. No case has extended absolute immunity to a\n\ngovernment attorney like Kaczmarek for merely assisting, behind\n\nthe scenes, in a state's response to a court request for documents.\n\nAnd we do not believe that such an extension is \"necessary to\n\nprotect the judicial process.\" Burns, 500 U.S. at 485.\n\n But, even assuming that Butz immunity were as broad as\n\nKaczmarek argues it is, her theory would fail on its own terms.\n\nThe facts alleged in the complaint do not support it. See Odd v.\n\nMalone, 538 F.3d 202, 208 (3d Cir. 2008) (emphasizing the \"fact-\n\nintensive nature\" of the functional approach to absolute\n\nimmunity).\n\n To recap the basic events, the subpoena duces tecum\n\nreceived by Ballou \"command[ed] the production of all documents\n\n\n\nassignment to defend the state in a civil suit filed in state\ncourt. 798 F.2d at 573. But that holding does not encompass\nKaczmarek's claim to immunity. As we have already explained,\nKaczmarek did not represent the DA in the Penate prosecution.\nAnd, as we will explain, Kaczmarek was not the AGO's designee to\nrespond to the discovery requests.\n\n\n - 24 -\n\fand photographs pertaining to the investigation of Sonja Farak and\n\nthe Amherst Drug Lab.\" Later, the judge ordered Ballou to produce\n\nany previously undisclosed evidence in his file. Foster was the\n\nAGO attorney responsible for handling the AGO's answers to the\n\nsubpoena and court order. She had conversations with Kaczmarek\n\nand others in the course of formulating these responses.\n\n As we read the core facts alleged in the complaint, in\n\nthese conversations with Foster, Kaczmarek primarily functioned as\n\na custodian of evidence. This is an administrative function not\n\n\"analogous\" to the advocacy of a prosecutor, Butz, 438 U.S. at\n\n515, nor otherwise intimately associated with the judicial\n\nprocess,10 see Odd, 538 F.3d at 213 (denying claim of absolute\n\nimmunity for a \"primarily administrative\" function); see also,\n\ne.g., Knowlton v. Shaw, 704 F.3d 1, 5 (1st Cir. 2013) (\"Absolute\n\nimmunity . . . is not available to . . . officials whose actions\n\nare primarily administrative . . . .\"); Perez v. Ellington, 421\n\nF.3d 1128, 1133 (10th Cir. 2005) (\"Absolute immunity does not\n\n\n\n\n 10 Kaczmarek also argues, relying on Van de Kamp, that she\nis absolutely immune because she advised Foster, whom the district\ncourt found to be absolutely immune, see Penate, 2018 WL 6437077,\nat *14. Van de Kamp, however, granted immunity to supervisors of\nprosecutors and to the prosecutor's \"colleagues\" who shared an\n\"intimate[] association with the judicial phase of the criminal\nprocess.\" See 555 U.S. at 345-46. Kaczmarek was not Foster's\nsupervisor. And our conclusion that Kaczmarek could be found not\nto have shared such an association with the judicial phase of the\ncriminal process distinguishes her from the hypothetical\ncolleagues the Supreme Court deemed immune in Van de Kamp.\n\n\n - 25 -\n\fextend to actions 'that are primarily investigative or\n\nadministrative in nature' . . . .\" (quoting Pfeiffer v. Hartford\n\nFire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991)).\n\n That Kaczmarek acted as an evidence custodian is\n\nconsistent first of all with the AG's own description of its role\n\nin Penate's proceeding. The AGO represented to the state court\n\nevaluating Penate's motion for a new trial that the AG was \"not\n\nthe prosecutor\" of Penate's case. Instead, the AG stated that,\n\nin responding to the subpoena and court order, it had been a\n\n\"non-party from which the defendants . . . sought . . .\n\ndiscovery.\" \"In that capacity,\" the AGO claimed to have acted \"as\n\nany other non-party might.\" Our characterization of Kaczmarek's\n\nfunction follows from this admission by the AG that it was \"not\n\nthe prosecutor\" but rather a non-party simply providing requested\n\nevidence.\n\n Other key facts alleged confirm this characterization as\n\nto Kaczmarek herself. Kaczmarek's role in the AG's Enterprise and\n\nMajor Crimes Unit was to prosecute crimes. A different unit, the\n\nAppeals Division, where Foster worked, handled the AGO's responses\n\nto subpoenas. Kaczmarek, in other words, was involved in the\n\nresponse to the subpoena and court order only because she was the\n\nperson familiar with the materials requested. The complaint thus\n\nalleges that Kaczmarek's primary role was to inform Foster about\n\n\n\n\n - 26 -\n\fthe existence, or non-existence, of responsive documents among\n\nthose materials.\n\n In performing this role, Kaczmarek \"serv[ed] the same\n\nnon-adversarial function as police officers . . . and other\n\nclerical state employees\" able to identify and describe evidence\n\nin government possession. Yarris, 465 F.3d at 138 (holding that\n\nformer prosecutors who stonewalled requests to test evidence acted\n\nnot like prosecutors entitled to absolute immunity but as\n\n\"custodian[s] of evidence\"). This function, whether performed by\n\na government lawyer like Kaczmarek or by a police officer, is an\n\nadministrative one, not analogous to the advocacy of a prosecutor,\n\nnor otherwise closely associated with the judicial process. See\n\nid. at 137-38.\n\n The administrative nature of this role here is further\n\napparent in the nature of the subpoena and order. The subpoena\n\nrequested all relevant documents and the order any previously\n\nundisclosed documents. Informing Foster whether documents\n\nresponsive to such explicit orders existed among the Farak\n\nmaterials did not require advocacy by Kaczmarek. In this, our\n\nview is consistent with Odd v. Malone, 538 F.3d at 213 (Hardiman,\n\nJ.), which held that a prosecutor responsible for \"informing the\n\ncourt about the status of a detained witness\" was performing an\n\nadministrative function. Id. at 213. There, too, the function's\n\nadministrative nature was \"especially\" clear \"in light of\" the\n\n\n - 27 -\n\ffact that the court's order requesting the information was\n\n\"explicit.\" Id.\n\n To the extent Kaczmarek did use discretion or legal\n\nknowledge in advising Foster, that does not change our conclusion\n\nthat Kaczmarek's primary function was an administrative one not\n\nentitled to absolute government attorney immunity. As we\n\nexplained in the previous section, it is the function for which\n\nevidence is evaluated, not the act of analyzing evidence itself\n\nwhich controls the type of immunity. And, here, the complaint\n\nalleges that Kaczmarek's primary function in analyzing the Farak\n\nmaterials was an administrative one -- to inform Foster whether\n\nthose materials were responsive.\n\n III.\n\n The district court's denial of the motion to dismiss is\n\naffirmed.\n\n\n\n\n - 28 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Rolando PENATE, Plaintiff, Appellee, v. Anne KACZMAREK, Defendant, Appellant, Kris Foster ; Randall Ravitz; Joseph Ballou ; Robert Irwin; Randy Thomas; Sonja Farak; Sharon Salem; James Hanchett; Julie Nassif; Linda Han ; Estate of Kevin Burnham; Steven Kent; John Wadlegger; Gregg Bigda; Edward Kalish; City of Springfield, Defendants.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-2261\\n\\n ROLANDO PENATE,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n ANNE KACZMAREK,\\n\\n Defendant, Appellant,\\n\\n KRIS FOSTER; RANDALL RAVITZ; JOSEPH BALLOU; ROBERT IRWIN; RANDY\\nTHOMAS; SONJA FARAK; SHARON SALEM; JAMES HANCHETT; JULIE NASSIF;\\nLINDA HAN; ESTATE OF KEVIN BURNHAM; STEVEN KENT; JOHN WADLEGGER;\\n GREGG BIGDA; EDWARD KALISH; CITY OF SPRINGFIELD,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Katherine A. Robertson, U.S. Magistrate Judge]\\n\\n\\n Before\\n\\n Lynch, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n David H. Rich, with whom Maria T. Davis and Todd & Weld, LLP\\nwere on brief, for appellant.\\n Luke Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on\\nbrief, for appellee.\\n Matthew R. Segal, American Civil Liberties Union Foundation\\nof Massachusetts, Inc., Emma Quinn-Judge, Monica Shah, and Zalkind\\nDuncan & Bernstein LLP on brief for American Civil Liberties Union\\nof Massachusetts and Massachusetts Association of Criminal Defense\\nLawyers, amici curiae.\\n\\fJune 26, 2019\\n\\f LYNCH, Circuit Judge. This appeal presents novel\\n\\nquestions about the scope of absolute prosecutorial and government\\n\\nattorney immunity from claims asserted under 42 U.S.C. § 1983.\\n\\n Appellee Rolando Penate filed this § 1983 action against\\n\\nseventeen defendants after the dismissal with prejudice of his\\n\\n2013 Massachusetts criminal conviction for drug distribution.\\n\\nThis appeal is from an order denying absolute immunity to one of\\n\\nthose defendants, Anne Kaczmarek, a former Massachusetts Assistant\\n\\nAttorney General. Penate's complaint alleged that Kaczmarek\\n\\nunlawfully withheld (and worked with others to unlawfully\\n\\nwithhold) exculpatory evidence from Penate's counsel; from the\\n\\nHampden County, Massachusetts District Attorney, whose office\\n\\nprosecuted Penate in Hampden County Superior Court; and from that\\n\\nstate court. The withheld evidence showed that a drug laboratory\\n\\nchemist, Sonja Farak, had been battling drug addiction and had\\n\\ntampered with samples she was assigned to test around the time she\\n\\ntested the samples in Penate's case. Kaczmarek had obtained the\\n\\nevidence at issue while she was prosecuting Farak on state charges\\n\\nof tampering with evidence and drug possession.\\n\\n After the magistrate judge rejected Kaczmarek's motion\\n\\nto dismiss on grounds of absolute immunity, Penate v. Kaczmarek,\\n\\nNo. 17-cv-30119, 2018 WL 6437077, at *16 (D. Mass. Dec. 7, 2018),\\n\\nKaczmarek filed this interlocutory appeal. We affirm.\\n\\n\\n\\n\\n - 3 -\\n\\f We are required to \\\"make two important assumptions about\\n\\nthe case: first, that [Penate's] allegations are entirely true;\\n\\nand, second, that they allege constitutional violations for which\\n\\n§ 1983 provides a remedy.\\\" Buckley v. Fitzsimmons, 509 U.S. 259,\\n\\n261 (1993); see also Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 28\\n\\n(1st Cir. 1995). The first of these assumptions is critical here,\\n\\nas our rejections of Kaczmarek's novel claims to absolute immunity\\n\\nare fact-bound conclusions.\\n\\n After recounting the allegations in the complaint and\\n\\nthe history of this suit, we address Kaczmarek's two theories for\\n\\nabsolute immunity.1 She first argues that she enjoys absolute\\n\\nprosecutorial immunity because the conduct alleged in the\\n\\ncomplaint occurred during the time period when she was assigned to\\n\\nprosecute Farak. We reject this argument because, on the facts\\n\\nalleged in the complaint, Kaczmarek's decision to withhold\\n\\nevidence from the criminal prosecution of Penate lacked a\\n\\n\\\"functional tie\\\" to her prosecutorial role in Farak's separate\\n\\ncase. Buckley, 500 U.S. at 277. Kaczmarek alternatively seeks\\n\\nabsolute immunity on the ground that, in performing some conduct\\n\\nalleged in the complaint, she functioned as an advocate for the\\n\\ngovernment in an evidentiary hearing associated with the criminal\\n\\ncase against Penate. But certain allegations in the complaint are\\n\\n\\n 1 Kaczmarek has not raised the defense of qualified\\nimmunity.\\n\\n\\n - 4 -\\n\\fbest read to allege that Kaczmarek played an administrative role\\n\\nconcerning this hearing. On that basis, we reject this second\\n\\nargument for absolute immunity.\\n\\n I.\\n\\nA. Facts Alleged in the Complaint\\n\\n Penate was charged by the Hampden County District\\n\\nAttorney with several drug-related offenses on November 16, 2011.\\n\\nThe suspected drugs were sent to the Massachusetts Department of\\n\\nPublic Health's Amherst Drug Lab and were assigned to Farak for\\n\\nanalysis. Farak reported that the substances from Penate's case\\n\\nhad all tested positive for the presence of controlled substances.\\n\\n Farak tested the samples on December 22, 2011, January\\n\\n6, 2012, and January 9, 2012. Also on December 22, Farak entered\\n\\non a Diary Card kept as part of her treatment for drug addiction\\n\\nthat she \\\"tried to resist using [at] work but ended up failing.\\\"\\n\\n Farak later placed this Diary Card in the trunk of her\\n\\ncar, where, as discussed below, it was found, along with similar\\n\\nworksheets, by the state police. Those documents revealed that,\\n\\nduring the period that the lab held the samples in Penate's case,\\n\\nFarak had struggled with drug addiction, had frequently consumed\\n\\ndrugs while at work, and had often tampered with and used drug\\n\\nsamples and supplies held by the lab. At the heart of this case\\n\\nis Kaczmarek's failure to disclose this exculpatory evidence to\\n\\n\\n\\n\\n - 5 -\\n\\fPenate, to his prosecutor, and to the court in his criminal\\n\\nproceeding.2\\n\\n The charges against Penate were still pending when the\\n\\nMassachusetts Attorney General's Office (AGO or AG) began\\n\\ninvestigating Farak for misconduct at the Amherst Drug Lab. On\\n\\nJanuary 19, 2013, AGO investigators obtained a warrant to search\\n\\nFarak's car, searched the car, and seized hundreds of pages of\\n\\npaper, including the Diary Card and other mental health worksheets.\\n\\n Farak was charged with tampering with evidence and drug\\n\\npossession on January 22, 2013. Kaczmarek, a prosecutor in the\\n\\nAG's Enterprise and Major Crimes Unit, was assigned to prosecute\\n\\nFarak, who ultimately pleaded guilty in January 2014.\\n\\n The complaint then tracks the AGO's actions related to\\n\\nthe exculpatory evidence that Penate claims was unlawfully\\n\\nwithheld during his criminal proceeding. The Diary Card and other\\n\\nmental health worksheets first went unmentioned or were\\n\\n\\n 2 Penate also claims that Kaczmarek somehow violated his\\nconstitutional rights by artificially narrowing the scope of the\\ninvestigation against Farak, after Farak had been arrested and\\narraigned. But, because that claim concerns Kaczmarek's choices\\nregarding the course of a prosecution she was actually conducting,\\nafter a probable cause determination had been made, absolute\\nimmunity does bar it. See Buckley, 509 U.S. at 273 (\\\"[A]cts\\nundertaken by a prosecutor in preparing for the initiation of\\njudicial proceedings or for trial, and which occur in the course\\nof his role as an advocate for the State, are entitled to the\\nprotections of absolute immunity.\\\"); see also Kalina v. Fletcher,\\n522 U.S. 118, 129 (1997) (holding that a prosecutor's \\\"activities\\nin connection with the preparation and filing of . . . charging\\ndocuments . . . are protected by absolute immunity\\\").\\n\\n\\n - 6 -\\n\\fcharacterized as \\\"assorted lab paperwork\\\" by investigators in\\n\\npolice reports and returns for search warrants. \\\"This was not an\\n\\noversight,\\\" the complaint alleges, \\\"but reflected a collective\\n\\ndecision on the part of Kaczmarek, . . . [Police Sergeant Joseph]\\n\\nBallou, and . . . [others] to deny the existence of this highly\\n\\nprobative evidence.\\\" The complaint then alleges that, around the\\n\\nsame time, Kaczmarek discouraged Ballou from following up on an\\n\\nallegation of evidence tampering by Farak in 2005.\\n\\n In February 2013, Ballou attached copies of the Diary\\n\\nCard and other mental health worksheets to an email to Kaczmarek\\n\\nwith the subject line \\\"FARAK Admissions.\\\" \\\"Here are those forms\\n\\nwith the admissions of drug use I was talking about,\\\" he wrote.\\n\\n In March, neither the Diary Card nor the other mental\\n\\nhealth worksheets were included in the packets of evidence related\\n\\nto Farak provided to all of the Massachusetts District Attorneys.\\n\\nThe packets were accompanied by a letter from the head of the AG's\\n\\nCriminal Bureau, John Verner; the letter explained that the AG was\\n\\ninvestigating Farak and stated, \\\"Pursuant to this office's\\n\\nobligation to provide potentially exculpatory information to the\\n\\nDistrict Attorneys as well as information necessary to your\\n\\nOffices' determination about how to proceed with cases in which\\n\\nrelated narcotic evidence was tested at the Amherst Laboratory,\\n\\nplease find the below listed materials . . . .\\\"\\n\\n\\n\\n\\n - 7 -\\n\\f That same day in March, Kaczmarek submitted to Verner\\n\\nand her other supervisors a Prosecution Memo that contained\\n\\nmultiple references to Farak's mental health worksheets.\\n\\nKaczmarek stated that the worksheets had \\\"not been submitted to\\n\\nthe [Farak] grand jury out of an abundance of caution,\\\" although\\n\\n\\\"[c]ase law\\\" indicated that \\\"the paperwork [was] not privileged.\\\"\\n\\nVerner responded with a hand-written note telling her that these\\n\\ndocuments had \\\"NOT\\\" been \\\"turned over to DAs offices yet.\\\"\\n\\n Despite this withholding of the mental health worksheets\\n\\nfrom the District Attorneys (and later from Penate and the Hampden\\n\\nCounty Superior Court), Kaczmarek did disclose the worksheets to\\n\\nFarak's defense attorney. In doing so, Kaczmarek told the defense\\n\\nthat the documents would not be turned over to any \\\"Farak\\n\\ndefendants\\\" (that is, defendants seeking relief based on Farak's\\n\\nmisconduct) and that the AG's office considered the documents to\\n\\nbe \\\"privileged.\\\"\\n\\n Penate, who was awaiting his trial on the criminal\\n\\ncharges, filed a motion to dismiss in July 2013 based on the\\n\\ncharges against Farak. The judge ordered an evidentiary hearing\\n\\non the issue of Farak's misconduct between November 2011 and\\n\\nJanuary 2012, when the lab had custody of the substances from\\n\\nPenate's case. Penate's motion was consolidated with similar\\n\\nmotions from about a dozen Farak-defendant cases pending in Hampden\\n\\nCounty Superior Court. A hearing in these consolidated motions\\n\\n\\n - 8 -\\n\\fon the timing and scope of Farak's misconduct was scheduled for\\n\\nSeptember 9, 2013.\\n\\n Before the hearing, Assistant District Attorney Eduardo\\n\\nVelazquez, who was prosecuting Penate, sought any exculpatory\\n\\nevidence for the hearing from the AGO. He was told that all\\n\\nrelevant evidence had already been provided to the DAs, even though\\n\\nthe mental health worksheets, as Verner had noted, had \\\"NOT\\\" been\\n\\ndisclosed.\\n\\n Ballou received a subpoena duces tecum for the hearing\\n\\non the consolidated motions \\\"command[ing] the production of all\\n\\ndocuments and photographs pertaining to the investigation of Sonja\\n\\nFarak and the Amherst Drug Lab.\\\"3 Assistant Attorney General Kris\\n\\nFoster, from the AGO's Appeals Division, was assigned to handle\\n\\nthe response to the subpoena. In meetings about how to respond\\n\\nto the subpoena, Kaczmarek divulged to Foster and Foster's\\n\\nsupervisor, Randall Ravitz, that she and Ballou possessed the\\n\\nmental health worksheets. But Kaczmarek took the position that\\n\\nthese documents were irrelevant to the Farak defendants. She also\\n\\n\\n\\n\\n 3 Before Penate's motion was consolidated with the other\\nFarak defendants' motions, Penate served Ballou and Kaczmarek with\\nsubpoenas to testify at the evidentiary hearing ordered in Penate's\\ncase. However, the complaint does not allege that Kaczmarek was\\nsubpoenaed to appear at the post-conviction proceeding. The\\nallegations in the complaint about Kaczmarek recounted in the\\nfollowing paragraphs all pertain to the Ballou subpoena and a\\nrelated court order.\\n\\n\\n - 9 -\\n\\furged that the documents should not be produced because several\\n\\ncontained information about Farak's mental health treatment.\\n\\n Foster filed a motion to quash the subpoena. In the\\n\\nalternative, Foster sought a protective order excluding from the\\n\\nscope of the subpoena information including \\\"emails responsive to\\n\\nthe subpoena\\\" and \\\"information concerning the health or medical or\\n\\npsychological treatment of individuals.\\\"\\n\\n Ballou testified at the hearing on the consolidated\\n\\nmotions. At Foster's instruction, Ballou did not reveal the\\n\\nexistence of the mental health worksheets. During the hearing,\\n\\nthe judge ordered Foster to review Ballou's \\\"file\\\" on Farak and to\\n\\npresent to the court for in camera review copies of any undisclosed\\n\\ndocuments in the file.\\n\\n Foster, Kaczmarek, and Verner discussed whether the\\n\\norder required Ballou to submit his emails to Kaczmarek about\\n\\nFarak. Kaczmarek ultimately asked Ballou to bring his file about\\n\\nthe case to Boston for her to review. The paper file Ballou\\n\\nbrought to Boston contained none of the mental health worksheets,\\n\\nso Kaczmarek told Foster that all of the documents in Ballou's\\n\\nfile had already been disclosed. Foster then sent the judge a\\n\\nletter stating that \\\"every document in [Ballou's] possession has\\n\\nalready been disclosed.\\\"\\n\\n The day Foster sent the letter, Penate's counsel emailed\\n\\nFoster requesting to inspect the documents seized from Farak's\\n\\n\\n - 10 -\\n\\fcar. Foster forwarded the email to Kaczmarek, who responded: \\\"No.\\n\\nWhy is this relevant to this case. I really don't like him.\\\"\\n\\nFoster told Penate's counsel that the AG's position was that the\\n\\nevidence from the car was irrelevant to any case other than\\n\\nFarak's.\\n\\n Penate's motion to dismiss the criminal charges was\\n\\ndenied by the state court based on a finding that Farak's\\n\\nmisconduct began after she handled the samples in Penate's case.\\n\\nAlthough Penate subpoenaed Kaczmarek to testify at his trial,\\n\\nFoster's motion to quash the subpoena was granted, as was\\n\\nVelazquez's motion in limine to preclude Penate from arguing that\\n\\nFarak was engaged in misconduct between November 2011 and January\\n\\n2012. In December 2013, Penate was convicted of one count of\\n\\nDistributing a Class A substance and was sentenced to five to seven\\n\\nyears in prison.\\n\\n In October 2014, an inspection of the evidence found in\\n\\nFarak's car for a different Massachusetts criminal case revealed\\n\\nthe Diary Card and the other mental health worksheets. This\\n\\ndiscovery prompted Verner, the head of the AG's Criminal Bureau,\\n\\nto send copies of all of the documents seized in the car to the\\n\\nMassachusetts DAs in November 2014.\\n\\n Based on the newly produced evidence, Penate filed a\\n\\nmotion for a new trial in 2015, which was again consolidated with\\n\\nthe cases of other Farak defendants. These defendants sought\\n\\n\\n - 11 -\\n\\fdiscovery from the AGO on prosecutorial misconduct by attorneys in\\n\\nthat office. In opposing the discovery, the AGO represented:\\n\\n The defendants' proposed claim of\\n prosecutorial misconduct based on actions by\\n the Attorney General's Office fails for the\\n very simple fact that the AGO is not the\\n prosecutor of any of these cases. Certainly,\\n the AGO prosecuted Sonja Farak; but this is\\n not Farak's case. Instead, in these cases the\\n AGO was a non-party from which the defendants\\n previously sought expansive post-conviction\\n discovery. In that capacity, the AGO was well\\n supported by case law in presenting arguments\\n opposing the proposed discovery requests, just\\n as any other non-party might do.\\n\\n In January 2017, Penate's motion for a new trial was\\n\\nallowed, with the assent of the Hampden County DA. In June 2017,\\n\\na judge dismissed Penate's conviction with prejudice. The judge\\n\\nfound that \\\"Kaczmarek's and Foster's deliberate withholding of\\n\\nexculpatory evidence was particularly egregious in the Penate\\n\\ncase\\\" and \\\"qualifies as a fraud upon the court.\\\"\\n\\nB. History of this Suit\\n\\n Penate filed this suit on September 5, 2017 in federal\\n\\ndistrict court in Massachusetts. His complaint asserted two\\n\\nclaims against Kaczmarek: the § 1983 claim already mentioned and\\n\\na state tort law claim for intentional infliction of emotional\\n\\ndistress. Under Massachusetts law, Kaczmarek's immunity from the\\n\\ntort claim falls with her immunity from the § 1983 claim.4 See\\n\\n\\n\\n 4 Kaczmarek's opening brief on appeal argues in a single\\nparagraph that the tort claim is also \\\"barred by the general\\n\\n\\n - 12 -\\n\\fChicopee Lions Club v. Dist. Att'y for Hampden Dist., 485 N.E.2d\\n\\n673, 677 (Mass. 1985).\\n\\n Count IV of the complaint asserts § 1983 violations by\\n\\nKaczmarek, Foster, and Foster's supervisor, Ravitz. It alleges\\n\\nthat Kaczmarek knew that the mental health worksheets were\\n\\nexculpatory evidence in the cases of Farak defendants like Penate\\n\\nand that Kaczmarek had a duty under Brady v. United States, 373\\n\\nU.S. 83 (1963), to disclose such evidence and to make truthful\\n\\nstatements about such evidence. In paragraph 433, the complaint\\n\\nstates that Kaczmarek, Foster, and Ravitz, \\\"prior to, during, and\\n\\nfollowing Plaintiff's trial, intentionally, recklessly, and/or\\n\\nwith deliberate indifference to their legal obligations, concealed\\n\\nBrady material, lied about, and otherwise failed to disclose Brady\\n\\nmaterial to the Hampden County ADA prosecuting Plaintiff.\\\"\\n\\nParagraph 434 alleges the same failure to disclose, to \\\"Plaintiff's\\n\\ncounsel and the Hampden County Superior Court.\\\" 5 Count VIII\\n\\n\\nMassachusetts common law litigation privilege.\\\" But Kaczmarek did\\nnot raise this defense in the district court, the magistrate judge\\ndid not rule on it, and we do not consider it. See United States\\nv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990); see also Espinal-\\nDominguez v. Puerto Rico, 352 F.3d 490, 495-96 (1st Cir. 2003)\\n(describing the scope of appellate jurisdiction from non-final\\ndistrict court orders).\\n 5 In the order denying Kaczmarek's motion to dismiss, the\\nmagistrate judge recounted the complaint's allegations that\\nKaczmarek conspired with investigators to mischaracterize the\\nmental health worksheets as \\\"lab paperwork\\\" and that Kaczmarek\\ndiscouraged Ballou from following up on a lead. See Penate, 2018\\nWL 6437077, at *14. To the extent these allegations are offered\\nto support a claim that Kaczmarek violated Penate's constitutional\\n\\n\\n - 13 -\\n\\falleged that this conduct by Kaczmarek amounted to the intentional\\n\\ninfliction of emotional distress.\\n\\n Kaczmarek's motion to dismiss the complaint argued that\\n\\nshe was entitled to absolute immunity, raising the two theories\\n\\npreviously identified. The magistrate judge denied the motion\\n\\nbecause Penate's claims against Kaczmarek were \\\"not related to her\\n\\nprosecution of Farak,\\\" Penate, 2018 WL 6437077, at *16, and because\\n\\nKaczmarek was not engaged in a function analogous to a prosecutor's\\n\\nwhen she worked on the requests for exculpatory information in the\\n\\nAG's and Ballou's possession, see id. at *15.\\n\\n II.\\n\\nA. Jurisdiction, Standard of Review, and Kaczmarek's Burden\\n\\n We have jurisdiction over Kaczmarek's interlocutory\\n\\nappeal from the denial of immunity because it \\\"turns on a purely\\n\\nlegal question.\\\" Limone v. Condon, 372 F.3d 39, 50 (1st Cir.\\n\\n2004); see also Filler v. Kellett, 859 F.3d 148, 152 (1st Cir.\\n\\n\\n\\nrights by artificially narrowing the scope of the investigation\\nagainst Farak, we have held, in footnote 2, supra, that Kaczmarek\\nis absolutely immune.\\n Penate argues in his brief that these factual\\nallegations were made in support of paragraph 433 of the complaint,\\nwhich alleges that Kaczmarek failed to disclose exculpatory\\nevidence to the DAs, including to the DA prosecuting Penate. And\\nKaczmarek admits in her reply brief that these allegations could\\nproperly be used to support the theory in paragraph 433. To the\\nextent the facts are alleged for this purpose, we agree with Penate\\nthat these two factual allegations are well-pleaded and need not\\nbe disregarded as conclusory. See Ocasio-Hernández v. Fortuño-\\nBurset, 640 F.3d 1, 14 (1st Cir. 2011) (defining well-pleaded\\nfacts).\\n\\n\\n - 14 -\\n\\f2017) (lacking interlocutory jurisdiction because immunity\\n\\ndepended on facts requiring further development). Penate's\\n\\ncomplaint alleges the facts necessary to evaluate Kaczmarek's\\n\\ndefense; we are required to take those facts as true at this stage;\\n\\nand Kaczmarek, in any event, does not dispute them. The only\\n\\nquestion is whether, on those facts, Kaczmarek is entitled to\\n\\nabsolute immunity and thus to dismissal of the complaint.\\n\\n Our review is de novo. Garnier v. Rodríguez, 506 F.3d\\n\\n22, 26 (1st Cir. 2007). We start with \\\"[t]he presumption . . .\\n\\nthat qualified rather than absolute immunity is sufficient.\\\"\\n\\nBurns v. Reed, 500 U.S. 478, 486 (1991). And Kaczmarek, as the\\n\\n\\\"official seeking absolute immunity[,] bears the burden of showing\\n\\nthat such immunity is justified.\\\" Id. at 486. That burden is a\\n\\nheavy one. See, e.g., Buckley, 509 U.S. at 269 (\\\"[W]e have been\\n\\n'quite sparing' in recognizing absolute immunity for state actors\\n\\n. . . .\\\" (quoting Forrester v. White, 484 U.S. 219, 224 (1988)).\\n\\n Kaczmarek has not satisfied it here, either on her first\\n\\ntheory that she is entitled to absolute prosecutorial immunity\\n\\nbecause she prosecuted Farak or on her second theory that she\\n\\nshould enjoy the absolute immunity afforded to certain government\\n\\nattorneys. We address these theories in turn.\\n\\nB. Absolute Prosecutorial Immunity\\n\\n The Supreme Court first recognized the absolute immunity\\n\\nof prosecutors from certain § 1983 claims in Imbler v. Pachtman,\\n\\n\\n - 15 -\\n\\f424 U.S. 409 (1976). There, the Court held that prosecutors are\\n\\nabsolutely immune in exercising the core prosecutorial functions\\n\\nof \\\"initiating a prosecution and . . . presenting the State's\\n\\ncase.\\\" Id. at 431.\\n\\n Following Imbler, the Court has used a \\\"functional\\n\\napproach\\\" to decide whether state officials are entitled to\\n\\nabsolute immunity from particular § 1983 claims. Burns, 500 U.S.\\n\\nat 486. This approach looks to \\\"the nature of the function\\n\\nperformed, not the identity of the actor who performed it,\\\"\\n\\nForrester, 484 U.S. at 229, nor to \\\"the particular act\\\" in\\n\\nisolation, Mireles v. Waco, 502 U.S. 9, 12 (1991) (per curiam)\\n\\n(citing Stump v. Sparkman, 435 U.S. 349, 356 (1978)).\\n\\n Applying this approach, the Supreme Court has recognized\\n\\nthat several \\\"functions of contemporary prosecutors are entitled\\n\\nto absolute immunity.\\\" Buckley, 509 U.S. at 269. These include:\\n\\n\\\"appearing before a judge and presenting evidence in support of a\\n\\nmotion for a search warrant,\\\" Burns, 500 U.S. at 491, and\\n\\n\\\"prepar[ing] and filing . . . [a criminal] information and [a]\\n\\nmotion for an arrest warrant,\\\" Kalina v. Fletcher, 522 U.S. 118,\\n\\n129 (1997). The basic \\\"principle\\\" of these cases is \\\"that acts\\n\\nundertaken by a prosecutor in preparing for the initiation of\\n\\njudicial proceedings or for trial, and which occur in the course\\n\\nof his role as an advocate for the State, are entitled to the\\n\\nprotections of absolute immunity.\\\" Buckley, 509 U.S. at 273.\\n\\n\\n - 16 -\\n\\f But the Supreme Court has rejected claims to absolute\\n\\nprosecutorial immunity where the prosecutor's conduct lacked a\\n\\n\\\"functional tie to [a] judicial process\\\" initiated by the\\n\\nprosecutor. Id. at 277. So, absolute immunity does not protect\\n\\nprosecutors when they give advice to police during a criminal\\n\\ninvestigation, Burns, 500 U.S. at 495-96, fabricate evidence long\\n\\nbefore a grand jury has made an indictment, Buckley, 509 U.S. 275-\\n\\n76, or make statements to the press in announcing an indictment,\\n\\nid. at 276-78. These functions have been deemed \\\"administrative\\\"\\n\\nor \\\"investigative,\\\" and, in exercising them, \\\"a prosecutor is in\\n\\nno different position than other executive officials,\\\" such as\\n\\npolice, and \\\"qualified immunity is the norm for them.\\\" Id. at\\n\\n278.\\n\\n All of these Supreme Court cases involved claims arising\\n\\nout of criminal proceedings which were initiated by the same\\n\\nofficials who were seeking absolute prosecutorial immunity. But\\n\\nKaczmarek was not Penate's prosecutor; 6 she rests her broad\\n\\nassertion of absolute prosecutorial immunity on her role as Farak's\\n\\nprosecutor. Kaczmarek's claim is thus a novel one, as neither the\\n\\n\\n 6 Kaczmarek's agency, the AGO, had no control over\\nPenate's prosecution and thus Kaczmarek cannot, and indeed does\\nnot, claim to have been his prosecutor. See Kulwicki v. Dawson,\\n969 F.2d 1454, 1467 (3d Cir. 1992) (denying prosecutor lacking\\n\\\"official control over\\\" a prosecution prosecutorial immunity based\\non that prosecution). Indeed, the AG, for whom Kaczmarek worked,\\nadmitted that it was not Penate's prosecutor but rather \\\"was a\\nnon-party from which [Penate] . . . sought . . . discovery.\\\"\\n\\n\\n - 17 -\\n\\fSupreme Court nor this court has ever extended absolute\\n\\nprosecutorial immunity to conduct by a prosecutor in a proceeding\\n\\nnot initiated by that prosecutor or by an office that prosecutor\\n\\nsupervises.7\\n\\n Absolute immunity is not triggered here by the simple\\n\\nfact that the conduct alleged in the complaint occurred while\\n\\nKaczmarek was pursuing the commonwealth's criminal charges against\\n\\nFarak. See Filler, 859 F.3d at 153 (\\\"Importantly, absolute\\n\\nimmunity does not necessarily apply to all actions that a\\n\\nprosecutor may take once the 'judicial phase' begins.\\\"); Guzman-\\n\\nRivera, 55 F.3d at 29 (observing that absolute prosecutorial\\n\\nimmunity does not \\\"extend[] to all conduct that facilitates the\\n\\nprosecutorial function\\\"). As the Supreme Court has emphasized,\\n\\n\\\"the actions of a prosecutor are not absolutely immune merely\\n\\nbecause they are performed by a prosecutor.\\\" Buckley, 509 U.S.\\n\\nat 273. Rather, under the functional approach, Kaczmarek's\\n\\ndefense turns on the following question: was Kaczmarek functioning\\n\\nas Farak's prosecutor when she withheld evidence from Penate's\\n\\nproceeding? See id. at 277 (asking whether the prosecutor's\\n\\n\\n 7 The Supreme Court held in Van de Kamp v. Goldstein, 555\\nU.S. 335 (2009), that prosecutors were entitled to absolute\\nimmunity for supervising their office's compliance with\\nconstitutional disclosure requirements. Id. at 348. As Kaczmarek\\ndid not work in or otherwise have control over the office of the\\nDA prosecuting Penate, her claim to absolute prosecutorial\\nimmunity does not come under the rubric of Van de Kamp. See id.\\nat 345.\\n\\n\\n - 18 -\\n\\fconduct had any \\\"functional tie to the judicial process\\\"); Burns,\\n\\n500 U.S. at 495 (asking whether \\\"the prosecutor's actions are\\n\\nclosely associated with the judicial process\\\" the prosecutor\\n\\ninitiated).\\n\\n Key facts alleged in the complaint answer that question\\n\\nin the negative. The most significant fact is that Kaczmarek\\n\\nturned over the mental health worksheets to Farak's defense. This\\n\\nshows that, when Kaczmarek orchestrated the withholding of that\\n\\nvery same evidence in Penate's case, she did not do so because\\n\\nkeeping the evidence under wraps was helpful to her prosecution of\\n\\nFarak. On the complaint's facts, we conclude jurors could find\\n\\nthat Kaczmarek's decisions about disclosure of evidence in\\n\\nPenate's case were not made based on her role as Farak's\\n\\nprosecutor. The absence of this \\\"functional tie\\\" between\\n\\nKaczmarek's prosecutorial duties and her conduct in Penate's case,\\n\\nif proven, would doom Kaczmarek's assertion of absolute\\n\\nprosecutorial immunity. Buckley, 509 U.S. at 277.\\n\\n The ties Kaczmarek points to do not show that she\\n\\nwithheld evidence in Penate's case as part of her advocacy in\\n\\nFarak's case. Kaczmarek emphasizes that her involvement in\\n\\nPenate's case occurred \\\"in the midst of her criminal prosecution\\\"\\n\\nof Farak. But, as we have already explained, the functional\\n\\napproach and the principle that prosecutorial immunity is not\\n\\ncoextensive with the judicial phase of the criminal process require\\n\\n\\n - 19 -\\n\\fthat determinations about immunity turn not on accidents of timing\\n\\nbut on careful analyses of the functions being performed.\\n\\n Kaczmarek also stresses that her \\\"obligations\\\" to Penate\\n\\n\\\"arose solely because of her . . . role as Farak's prosecutor.\\\"\\n\\nKaczmarek possessed the evidence at issue because she was Farak's\\n\\nprosecutor, \\\"but that connection is too tenuous\\\" to show that\\n\\nKaczmarek functioned as a prosecutor when she withheld the evidence\\n\\nfrom Penate's case. Lampton v. Diaz, 639 F.3d 223, 227 (5th Cir.\\n\\n2011); see also id. at 227-28 (denying immunity for prosecutor's\\n\\ndisclosure of tax records acquired during prosecution to state\\n\\nethics board); Yarris v. Cty. of Delaware, 465 F.3d 129, 137-38\\n\\n(3d Cir. 2006) (denying absolute prosecutorial immunity to\\n\\nprosecutors who withheld evidence in post-conviction proceedings\\n\\nassigned to other prosecutors, even though the prosecutors had\\n\\nacquired the evidence at issue through their roles as prosecutors\\n\\nin the initial criminal proceedings); Guzman-Rivera, 55 F.3d at 29\\n\\n(\\\"The prosecutorial nature of an act does not spread . . . like an\\n\\ninkblot, immunizing everything it touches.\\\").\\n\\n Kaczmarek's final attempt to cast her function in\\n\\nPenate's case as entitled to prosecutorial immunity, based on Reid\\n\\nv. New Hampshire, 56 F.3d 332 (1st Cir. 1995), misses because it\\n\\ntrains its sights on Kaczmarek's conduct rather than on her\\n\\nfunction. The prosecutors in Reid enjoyed absolute immunity from\\n\\nclaims that they intentionally withheld evidence while trying the\\n\\n\\n - 20 -\\n\\fplaintiff on criminal charges. Id. at 337; see also Campbell v.\\n\\nMaine, 787 F.2d 776, 778 (1st Cir. 1986) (per curiam) (same).\\n\\nKaczmarek argues that she is entitled to immunity just the same\\n\\nbecause, like the prosecutors in Reid, she \\\"used her discretion to\\n\\nevaluate\\\" the evidence at issue and to determine that the evidence\\n\\nwas \\\"irrelevant\\\" to Penate.\\n\\n But Reid explained that absolute immunity attaches \\\"when\\n\\na prosecutor evaluates evidence and interviews witnesses in\\n\\npreparation for trial,\\\" 56 F.3d at 337 (citing Buckley, 509 U.S.\\n\\nat 273), and that one aspect of this immunity-protected function\\n\\nis \\\"determin[ing] what evidence . . . [i]s exculpatory and subject\\n\\nto disclosure\\\" to the defense, id.; see also Warney v. Monroe Cty.,\\n\\n587 F.3d 113, 125 (2d Cir. 2009) (\\\"[T]he disclosure of [Brady]\\n\\nevidence to opposing counsel is an advocacy function.\\\"); Imbler,\\n\\n424 U.S. at 431 n.34 (analogizing withholding exculpatory evidence\\n\\nto a prosecutor's use of perjured testimony during trial). Reid's\\n\\nholding thus rested not on \\\"the act itself\\\" -- analyzing\\n\\npotentially exculpatory evidence -- but on \\\"the nature and function\\n\\nof the act\\\" -- analyzing evidence in preparation to present the\\n\\nstate's case. Mireles, 502 U.S. at 13 (internal quotation marks\\n\\nomitted); see also Buckley, 509 U.S. at 276 n.7 (confirming that\\n\\nimmunity for \\\"obtaining, reviewing, and evaluating evidence\\\"\\n\\ndepends on whether those actions were taken in an \\\"administrative\\\"\\n\\nor prosecutorial capacity (quoting Imbler, 424 U.S. at 431 n.33)).\\n\\n\\n - 21 -\\n\\f That police are afforded qualified immunity from Brady\\n\\nclaims further illustrates that the function for which the evidence\\n\\nis analyzed, not the act of analyzing potentially exculpatory\\n\\nevidence, controls the type of immunity. See Drumgold v.\\n\\nCallahan, 707 F.3d 28, 38 (1st Cir. 2013) (denying claim of\\n\\nqualified immunity by police officer for suppression of evidence).\\n\\nIndeed, the operative allegations in Count IV of the complaint\\n\\nallege that Kaczmarek withheld Brady material, as a police officer\\n\\nmight, by \\\"concealing Brady material,\\\" from the court where Penate\\n\\nwas tried and from Penate's prosecutor.\\n\\n Finally, the functional tie present in Reid is absent\\n\\nhere: we have already concluded that Kaczmarek's decisions to\\n\\nwithhold evidence in Penate's case were not, on the facts alleged,\\n\\nan aspect of her preparation to present the state's case against\\n\\nFarak. In short, Kaczmarek does not enjoy absolute prosecutorial\\n\\nimmunity from Penate's suit because of her role as Farak's\\n\\nprosecutor.\\n\\nC. Absolute Immunity of Government Attorneys\\n\\n The next issue is Kaczmarek's theory that she enjoys\\n\\nabsolute immunity because she was a government attorney performing\\n\\nan advocacy function when she advised Foster on the AGO's responses\\n\\nto the Ballou subpoena and to the subsequent court order requiring\\n\\ndisclosure of documents.\\n\\n\\n\\n\\n - 22 -\\n\\f This theory of immunity is derived from Butz v. Economou,\\n\\n438 U.S. 478 (1978), which held that \\\"agency officials\\\" enjoy\\n\\nabsolute immunity in \\\"performing certain functions analogous to\\n\\nthose of a prosecutor,\\\" including \\\"initiat[ing] administrative\\n\\nproceedings\\\" and \\\"presenting evidence in an agency hearing.\\\" Id.\\n\\nat 515-16. Butz itself involved claims against, among others, a\\n\\nDepartment of Agriculture attorney who had brought an\\n\\nadministrative enforcement proceeding against the plaintiff. Id.\\n\\nat 482.\\n\\n Kaczmarek cites to out-of-circuit cases extending Butz\\n\\nto officials appointed to initiate civil proceedings for the\\n\\ngovernment or to defend the government in civil proceedings.8 See,\\n\\ne.g., Schrob v. Catterson, 948 F.2d 1402, 1413 (3d Cir. 1991)\\n\\n(initiating a civil forfeiture proceeding)); Murphy v. Morris, 849\\n\\nF.2d 1101, 1105 (8th Cir. 1988) (defending government in a civil\\n\\nsuit); Barrett v. United States, 798 F.2d 565, 572-73 (2d Cir.\\n\\n1986) (same).9 She argues that these cases and Butz hold that\\n\\n\\n\\n 8 This circuit has not extended Butz to government\\nattorneys outside the administrative context. We have granted\\nabsolute immunity to, for example, members of a state medical\\nlicensing board in initiating a licensure revocation proceeding,\\nWang v. N.H. Bd. of Registration in Med., 55 F.3d 698, 701 (1st\\nCir. 1995), and to officers at a state insurance bureau in deciding\\nto settle a violation through consent agreement rather than\\nadministrative proceeding, Knowlton v. Shaw, 704 F.3d 1, 6 (1st\\nCir. 2013).\\n 9 Kaczmarek likens herself to state government attorneys\\ngranted immunity by the Second Circuit in Barrett for their\\n\\n\\n - 23 -\\n\\f\\\"government attorneys who are not formally designated as\\n\\nprosecutors are also entitled to absolute immunity when their\\n\\nfunction is intimately associated with the judicial process.\\\"\\n\\nThat reading is undoubtedly too broad. Butz involved agency\\n\\nattorneys with assigned roles in a quasi-judicial administrative\\n\\nproceeding. And the out-of-circuit cases involved attorneys\\n\\nappointed to represent the government in initiating or defending\\n\\na civil proceeding. No case has extended absolute immunity to a\\n\\ngovernment attorney like Kaczmarek for merely assisting, behind\\n\\nthe scenes, in a state's response to a court request for documents.\\n\\nAnd we do not believe that such an extension is \\\"necessary to\\n\\nprotect the judicial process.\\\" Burns, 500 U.S. at 485.\\n\\n But, even assuming that Butz immunity were as broad as\\n\\nKaczmarek argues it is, her theory would fail on its own terms.\\n\\nThe facts alleged in the complaint do not support it. See Odd v.\\n\\nMalone, 538 F.3d 202, 208 (3d Cir. 2008) (emphasizing the \\\"fact-\\n\\nintensive nature\\\" of the functional approach to absolute\\n\\nimmunity).\\n\\n To recap the basic events, the subpoena duces tecum\\n\\nreceived by Ballou \\\"command[ed] the production of all documents\\n\\n\\n\\nassignment to defend the state in a civil suit filed in state\\ncourt. 798 F.2d at 573. But that holding does not encompass\\nKaczmarek's claim to immunity. As we have already explained,\\nKaczmarek did not represent the DA in the Penate prosecution.\\nAnd, as we will explain, Kaczmarek was not the AGO's designee to\\nrespond to the discovery requests.\\n\\n\\n - 24 -\\n\\fand photographs pertaining to the investigation of Sonja Farak and\\n\\nthe Amherst Drug Lab.\\\" Later, the judge ordered Ballou to produce\\n\\nany previously undisclosed evidence in his file. Foster was the\\n\\nAGO attorney responsible for handling the AGO's answers to the\\n\\nsubpoena and court order. She had conversations with Kaczmarek\\n\\nand others in the course of formulating these responses.\\n\\n As we read the core facts alleged in the complaint, in\\n\\nthese conversations with Foster, Kaczmarek primarily functioned as\\n\\na custodian of evidence. This is an administrative function not\\n\\n\\\"analogous\\\" to the advocacy of a prosecutor, Butz, 438 U.S. at\\n\\n515, nor otherwise intimately associated with the judicial\\n\\nprocess,10 see Odd, 538 F.3d at 213 (denying claim of absolute\\n\\nimmunity for a \\\"primarily administrative\\\" function); see also,\\n\\ne.g., Knowlton v. Shaw, 704 F.3d 1, 5 (1st Cir. 2013) (\\\"Absolute\\n\\nimmunity . . . is not available to . . . officials whose actions\\n\\nare primarily administrative . . . .\\\"); Perez v. Ellington, 421\\n\\nF.3d 1128, 1133 (10th Cir. 2005) (\\\"Absolute immunity does not\\n\\n\\n\\n\\n 10 Kaczmarek also argues, relying on Van de Kamp, that she\\nis absolutely immune because she advised Foster, whom the district\\ncourt found to be absolutely immune, see Penate, 2018 WL 6437077,\\nat *14. Van de Kamp, however, granted immunity to supervisors of\\nprosecutors and to the prosecutor's \\\"colleagues\\\" who shared an\\n\\\"intimate[] association with the judicial phase of the criminal\\nprocess.\\\" See 555 U.S. at 345-46. Kaczmarek was not Foster's\\nsupervisor. And our conclusion that Kaczmarek could be found not\\nto have shared such an association with the judicial phase of the\\ncriminal process distinguishes her from the hypothetical\\ncolleagues the Supreme Court deemed immune in Van de Kamp.\\n\\n\\n - 25 -\\n\\fextend to actions 'that are primarily investigative or\\n\\nadministrative in nature' . . . .\\\" (quoting Pfeiffer v. Hartford\\n\\nFire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991)).\\n\\n That Kaczmarek acted as an evidence custodian is\\n\\nconsistent first of all with the AG's own description of its role\\n\\nin Penate's proceeding. The AGO represented to the state court\\n\\nevaluating Penate's motion for a new trial that the AG was \\\"not\\n\\nthe prosecutor\\\" of Penate's case. Instead, the AG stated that,\\n\\nin responding to the subpoena and court order, it had been a\\n\\n\\\"non-party from which the defendants . . . sought . . .\\n\\ndiscovery.\\\" \\\"In that capacity,\\\" the AGO claimed to have acted \\\"as\\n\\nany other non-party might.\\\" Our characterization of Kaczmarek's\\n\\nfunction follows from this admission by the AG that it was \\\"not\\n\\nthe prosecutor\\\" but rather a non-party simply providing requested\\n\\nevidence.\\n\\n Other key facts alleged confirm this characterization as\\n\\nto Kaczmarek herself. Kaczmarek's role in the AG's Enterprise and\\n\\nMajor Crimes Unit was to prosecute crimes. A different unit, the\\n\\nAppeals Division, where Foster worked, handled the AGO's responses\\n\\nto subpoenas. Kaczmarek, in other words, was involved in the\\n\\nresponse to the subpoena and court order only because she was the\\n\\nperson familiar with the materials requested. The complaint thus\\n\\nalleges that Kaczmarek's primary role was to inform Foster about\\n\\n\\n\\n\\n - 26 -\\n\\fthe existence, or non-existence, of responsive documents among\\n\\nthose materials.\\n\\n In performing this role, Kaczmarek \\\"serv[ed] the same\\n\\nnon-adversarial function as police officers . . . and other\\n\\nclerical state employees\\\" able to identify and describe evidence\\n\\nin government possession. Yarris, 465 F.3d at 138 (holding that\\n\\nformer prosecutors who stonewalled requests to test evidence acted\\n\\nnot like prosecutors entitled to absolute immunity but as\\n\\n\\\"custodian[s] of evidence\\\"). This function, whether performed by\\n\\na government lawyer like Kaczmarek or by a police officer, is an\\n\\nadministrative one, not analogous to the advocacy of a prosecutor,\\n\\nnor otherwise closely associated with the judicial process. See\\n\\nid. at 137-38.\\n\\n The administrative nature of this role here is further\\n\\napparent in the nature of the subpoena and order. The subpoena\\n\\nrequested all relevant documents and the order any previously\\n\\nundisclosed documents. Informing Foster whether documents\\n\\nresponsive to such explicit orders existed among the Farak\\n\\nmaterials did not require advocacy by Kaczmarek. In this, our\\n\\nview is consistent with Odd v. Malone, 538 F.3d at 213 (Hardiman,\\n\\nJ.), which held that a prosecutor responsible for \\\"informing the\\n\\ncourt about the status of a detained witness\\\" was performing an\\n\\nadministrative function. Id. at 213. There, too, the function's\\n\\nadministrative nature was \\\"especially\\\" clear \\\"in light of\\\" the\\n\\n\\n - 27 -\\n\\ffact that the court's order requesting the information was\\n\\n\\\"explicit.\\\" Id.\\n\\n To the extent Kaczmarek did use discretion or legal\\n\\nknowledge in advising Foster, that does not change our conclusion\\n\\nthat Kaczmarek's primary function was an administrative one not\\n\\nentitled to absolute government attorney immunity. As we\\n\\nexplained in the previous section, it is the function for which\\n\\nevidence is evaluated, not the act of analyzing evidence itself\\n\\nwhich controls the type of immunity. And, here, the complaint\\n\\nalleges that Kaczmarek's primary function in analyzing the Farak\\n\\nmaterials was an administrative one -- to inform Foster whether\\n\\nthose materials were responsive.\\n\\n III.\\n\\n The district court's denial of the motion to dismiss is\\n\\naffirmed.\\n\\n\\n\\n\\n - 28 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2386,"cells":{"id":{"kind":"number","value":4633231,"string":"4,633,231"},"name":{"kind":"string","value":"Ralph FAIELLA, Plaintiff, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant, Appellee."},"name_abbreviation":{"kind":"string","value":"Faiella v. Fed. Natl Mortgage Assoc."},"decision_date":{"kind":"string","value":"2019-06-26"},"docket_number":{"kind":"string","value":"18-1063P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Howard, Selya, Torruella\", \"parties\": \"\", \"opinions\": [{\"author\": \"SELYA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1063\\n\\n RALPH FAIELLA,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n FEDERAL NATIONAL MORTGAGE ASSOCIATION,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF NEW HAMPSHIRE\\n\\n [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Torruella and Selya, Circuit Judges.\\n\\n\\n William Christopher Sheridan, with whom Sheridan Law Offices,\\nwas on brief, for appellant.\\n James W. McGarry, with whom Goodwin Procter LLP was on brief,\\nfor appellee.\\n\\n\\n June 26, 2019\\n\\f SELYA, Circuit Judge. The Merrill doctrine requires a\\n\\nshowing of actual authority as a basis for holding a federal\\n\\ninstrumentality vicariously liable for the acts of its agents.\\n\\nSee Fed. Crop Ins. Co. v. Merrill, 332 U.S. 380, 384 (1947). It\\n\\nfollows that such an instrumentality cannot be held vicariously\\n\\nliable for acts of its agents that were not actually authorized\\n\\neven if a private principal could be held liable in the same or\\n\\nsimilar circumstances under a theory of apparent authority. See\\n\\nid. The case at hand arises against this backdrop and presents a\\n\\nquestion of first impression at the federal appellate level: does\\n\\nthe protective carapace of the Merrill doctrine extend to the\\n\\nFederal National Mortgage Association (Fannie Mae)? Because we\\n\\nanswer this question in the affirmative and likewise conclude that\\n\\nthe other arguments advanced by plaintiff-appellant Ralph Faiella\\n\\nlack force, we affirm the district court's entry of summary\\n\\njudgment in Fannie Mae's favor.\\n\\nI. BACKGROUND\\n\\n We briefly rehearse the relevant facts and travel of the\\n\\ncase, viewing those facts in the light most flattering to the\\n\\nappellant (the party opposing summary judgment). See Avery v.\\n\\nHughes, 661 F.3d 690, 691 (1st Cir. 2011). In 2007, the appellant\\n\\ntook out a loan secured by a first mortgage on his principal\\n\\nresidence in Plaistow, New Hampshire. The lender assigned the\\n\\nmortgage loan to Fannie Mae, which arranged for it to be serviced\\n\\n\\n - 2 -\\n\\fby Green Tree Servicing LLC, now called Ditech Financial LLC\\n\\n(Ditech).\\n\\n Over the next eight years, the appellant occasionally\\n\\nfailed to make his monthly mortgage payments. On each occasion,\\n\\nhe worked with an assigned Ditech representative to cure the\\n\\ndefault and effect late payment of the arrearage. In the summer\\n\\nof 2015, the appellant missed yet another payment. He thereafter\\n\\nreceived a mortgage statement indicating an arrearage of\\n\\n$5,428.61, which included an exhortation that he contact his\\n\\nassigned representative to bring his account current. After\\n\\nspeaking with the representative, the appellant mailed Ditech a\\n\\ncheck covering both the described arrearage and his anticipated\\n\\nOctober 2015 mortgage payment. This check, in the gross amount of\\n\\n$6,167.21, was mailed to Ditech on September 17, 2015.\\n\\n Two days later, the appellant received a notice of\\n\\nforeclosure on his home. He immediately wrote to his Ditech\\n\\nrepresentative to confirm that he had sent a check sufficient to\\n\\ncure the default. In the same letter, he requested that the\\n\\nforeclosure be halted. The appellant heard nothing for over a\\n\\nweek. Ditech then returned his check and notified him that the\\n\\namount tendered was not correct.\\n\\n The appellant promptly contacted his Ditech\\n\\nrepresentative. She told him that the problem was that he had\\n\\nsubmitted a personal check, not a cashier's check. Relying on\\n\\n\\n - 3 -\\n\\fthis insight, the appellant sent Ditech a cashier's check in the\\n\\nsame amount. His efforts proved unavailing: the foreclosure sale\\n\\nproceeded, and Fannie Mae acquired the mortgaged property at that\\n\\nsale on October 16, 2015. For its part, Ditech simply returned\\n\\nthe cashier's check to the appellant and instructed him to contact\\n\\nhis representative concerning the amount owed. When the appellant\\n\\ncomplied, his representative informed him that she did not know\\n\\nthe amount needed to wipe out the foreclosure and reinstate his\\n\\nloan.\\n\\n Notwithstanding the foreclosure, the appellant\\n\\napparently retained physical possession of the premises. He went\\n\\non the offensive and, in February of 2016, sued Fannie Mae and\\n\\nDitech in a New Hampshire state court. The appellant's complaint\\n\\nprayed for a declaratory judgment regarding the invalidity of the\\n\\nforeclosure, asserted a wrongful foreclosure claim, and sought\\n\\nmoney damages for economic loss and emotional distress. The action\\n\\nwas removed to the United States District Court for the District\\n\\nof New Hampshire. See 28 U.S.C. §§ 1332, 1441. There, the\\n\\nappellant filed an amended complaint seeking only a declaratory\\n\\njudgment with respect to the alleged invalidity of the foreclosure.\\n\\nOn its own motion, Ditech was dropped from the case on the ground\\n\\nthat it had not participated in the foreclosure proceeding.\\n\\n In July of 2016, Fannie Mae moved to rescind its\\n\\nforeclosure deed and reinstate the appellant's mortgage. The\\n\\n\\n - 4 -\\n\\fappellant opposed the motion, arguing that this unrequested\\n\\nequitable relief would prevent him from seeking damages. The\\n\\ndistrict court denied Fannie Mae's motion and granted the\\n\\nappellant's oral motion to amend his complaint to reassert his\\n\\ndamages claims.\\n\\n The appellant filed a further amended complaint,\\n\\nreplacing his previous prayer for declaratory relief with a\\n\\ncompendium of damages claims alleging violations of several\\n\\nfederal and state debt collection and consumer protection laws and\\n\\nregulations. This further amended complaint also included common-\\n\\nlaw tort claims for deceit and negligent misrepresentation.1\\n\\nFannie Mae successfully moved to dismiss the statutory claims on\\n\\nvarious grounds. The dismissal of these claims (which is not an\\n\\nissue here) left only the appellant's common-law claims alleging\\n\\nthat Fannie Mae was vicariously liable for deceit and negligent\\n\\nmisrepresentation committed by Ditech employees.\\n\\n In due season, Fannie Mae answered what remained of the\\n\\nfurther amended complaint. Its answer contained, inter alia, an\\n\\naffirmative defense asserting that, to the extent that the\\n\\n\\n\\n\\n 1At the same time, the appellant sought to reintroduce Ditech\\nas a defendant. Ditech responded by moving to strike the\\nallegations against it as beyond the scope of the amendment that\\nhad been allowed. The court granted this motion, thus preserving\\nDitech's non-party status. The appellant's claims against Ditech\\nare apparently being litigated in a state-court action and need\\nnot concern us.\\n\\n\\n - 5 -\\n\\fappellant sought to hold Fannie Mae vicariously liable for Ditech's\\n\\nactions, any such liability was pretermitted by the Merrill\\n\\ndoctrine. Alternatively, Fannie Mae asserted that the appellant's\\n\\nclaims against it were barred by the economic-loss doctrine, a\\n\\ncommon-law principle recognized in New Hampshire. See, e.g., Wyle\\n\\nv. Lees, 33 A.3d 1187, 1190 (N.H. 2011); Plourde Sand & Gravel v.\\n\\nJGI E., Inc., 917 A.2d 1250, 1253 (N.H. 2007).\\n\\n During the course of two status conferences, the parties\\n\\nagreed that Fannie Mae's affirmative defenses were essentially\\n\\nlegal in nature and were potentially dispositive.2 In line with\\n\\nthis agreement, the court entered a bifurcated scheduling order,\\n\\nunder which it would address the merits of Fannie Mae's Merrill\\n\\ndoctrine and economic-loss arguments before dealing with the\\n\\nappellant's damages claims.\\n\\n Fannie Mae moved for summary judgment on the Merrill\\n\\ndoctrine and economic-loss issues. The appellant opposed the\\n\\nmotion. The district court granted summary judgment on the basis\\n\\nof the Merrill doctrine, holding that Fannie Mae was a federal\\n\\ninstrumentality protected from vicarious liability for the\\n\\nunauthorized acts of its agents. See Faiella v. Fed. Nat'l Mortg.\\n\\n\\n 2 This agreement was facilitated by Fannie Mae's stipulation\\nthat, for purposes of its summary judgment motion, it could be\\nassumed that Ditech acted as its agent at all relevant times. So,\\ntoo, the agreement was facilitated by the appellant's\\nacknowledgment that no discovery was needed in order to permit him\\nto address these issues.\\n\\n\\n - 6 -\\n\\fAss'n, No. 16-CV-088, 2017 WL 6375600, at *6-*8 (D.N.H. Dec. 13,\\n\\n2017). This timely appeal ensued.\\n\\nII. ANALYSIS\\n\\n We review the entry of summary judgment de novo. See\\n\\nIrobe v. U.S. Dep't of Agric., 890 F.3d 371, 377 (1st Cir. 2018).\\n\\n\\\"A district court may only grant summary judgment when the record,\\n\\nconstrued in the light most congenial to the nonmovant, presents\\n\\nno genuine issue as to any material fact and reflects the movant's\\n\\nentitlement to judgment as a matter of law.\\\" McKenney v. Mangino,\\n\\n873 F.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311\\n\\n(2018); see Fed. R. Civ. P. 56(a). When the motion is premised\\n\\nupon the absence of any genuine issue of material fact, the burden\\n\\nshifts to the nonmovant to identify, by means of materials of\\n\\nevidentiary quality, an issue of fact that is \\\"more than 'merely\\n\\ncolorable.'\\\" Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st\\n\\nCir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,\\n\\n249 (1986)).\\n\\n A.\\n\\n The appellant mounts a threshold argument. He says that\\n\\nthe grant of summary judgment was improvident because the record\\n\\nwas not sufficiently developed to permit resolution of the motion.\\n\\nThis argument, though, cannot be reconciled with the appellant's\\n\\nwords and actions in the court below.\\n\\n\\n\\n\\n - 7 -\\n\\f At a status conference on May 23, 2017, the appellant\\n\\nagreed that he would review Fannie Mae's motion for summary\\n\\njudgment (predicated on the Merrill doctrine and economic-loss\\n\\nissues) and notify the court if he thought that discovery was\\n\\nneeded to allow him to respond to the motion. During a follow-up\\n\\nconference on September 14, the appellant concurred in the district\\n\\ncourt's statement that \\\"the parties are now in agreement that\\n\\nthere's no discovery that needs to be conducted . . . to respond\\n\\nto the pending motion for summary judgment.\\\" By words and actions,\\n\\nthe appellant represented to the district court that the facts\\n\\nwere sufficiently developed to permit resolution of the summary\\n\\njudgment motion. A party ordinarily is bound by his\\n\\nrepresentations to a court, see United States v. Orsini, 907 F.3d\\n\\n115, 119-20 (1st Cir. 2018), and — having staked out his position\\n\\nin response to the district court's inquiry — the appellant cannot\\n\\nnow repudiate that position.\\n\\n If more were needed — and we do not think that it is —\\n\\nFederal Rule of Civil Procedure 56(d) provides a failsafe for this\\n\\nsort of situation. Under Rule 56(d), \\\"if a party opposing summary\\n\\njudgment shows that 'for specified reasons, [he] cannot present\\n\\nfacts essential to justify [his] opposition,' the district court\\n\\nmay grant appropriate relief.\\\" Nieves-Romero v. United States,\\n\\n715 F.3d 375, 381 (1st Cir. 2013) (alteration in original) (quoting\\n\\nFed. R. Civ. P. 56(d)). Rule 56(d), though, is designed to help\\n\\n\\n - 8 -\\n\\fthe vigilant, not those who slumber upon perceptible rights. The\\n\\nrule \\\"is not self-executing, but, rather, must be appropriately\\n\\ninvoked.\\\" Rivera-Almodóvar v. Instituto Socioeconómico\\n\\nComunitario, Inc., 730 F.3d 23, 28 (1st Cir. 2013). When a party\\n\\nconfronted with a summary judgment motion does not invoke Rule\\n\\n56(d) through an affidavit or some similarly authoritative\\n\\nproffer, he relinquishes any right to challenge the subsequent\\n\\nentry of summary judgment on the basis of insufficient factual\\n\\ndevelopment. See id. at 28-29; Jones v. Secord, 684 F.3d 1, 6\\n\\n(1st Cir. 2012). So it is here.\\n\\n For these reasons, we reject the appellant's threshold\\n\\nargument and proceed to review the district court's summary\\n\\njudgment ruling on the existing record.\\n\\n B.\\n\\n The pivotal question with respect to the district\\n\\ncourt's summary judgment ruling is whether Fannie Mae is a federal\\n\\ninstrumentality for purposes of the Merrill doctrine. We turn\\n\\nnext to that question.\\n\\n In Merrill, the respondents were farmers who had applied\\n\\nfor insurance from the Federal Crop Insurance Corporation (FCIC),\\n\\na government-owned enterprise established by Congress. See 332\\n\\nU.S. at 381-82. The respondents' application for crop insurance\\n\\nwas processed by a non-federal actor, the county Agricultural\\n\\nConservation Committee (the Committee), acting as an agent for the\\n\\n\\n - 9 -\\n\\fFCIC. See id. at 382. The FCIC eventually received and approved\\n\\nthe application. See id. But when the respondents tried to\\n\\ncollect on the insurance during a time of drought, it came to light\\n\\nthat the Committee, despite being informed by the respondents about\\n\\ncertain disqualifying facts, had not included those facts in the\\n\\napplication package that it forwarded to the FCIC. See id. Once\\n\\nmade aware of the disqualifying information, the FCIC refused to\\n\\nhonor the respondents' claims. See id.\\n\\n The respondents sued the FCIC to make good on the policy\\n\\nand recover the insurance proceeds. The case wended its way to\\n\\nthe Supreme Court, which upheld the FCIC's refusal to pay. See\\n\\nid. at 386. Although recovery likely could have been had against\\n\\na private insurer on similar facts, the Court held that the federal\\n\\ngovernment could not be bound in the same way. See id. at 383-\\n\\n84. The Court reasoned that \\\"anyone entering into an arrangement\\n\\nwith the Government takes the risk of having accurately ascertained\\n\\nthat he who purports to act for the Government stays within the\\n\\nbounds of his authority.\\\" Id. at 384. From this seed, a principle\\n\\nsprouted: the federal government cannot be bound by the\\n\\nunauthorized acts of its agents. See United States v. Ellis, 527\\n\\nF.3d 203, 207 (1st Cir. 2008); United States v. Vanhorn, 20 F.3d\\n\\n104, 112 n.19 (4th Cir. 1994); Penny v. Giuffrida, 897 F.2d 1543,\\n\\n1546 (10th Cir. 1990); Watkins v. U.S. Army, 875 F.2d 699, 707\\n\\n(9th Cir. 1989); United States v. Don B. Hart Equity Pure Tr., 818\\n\\n\\n - 10 -\\n\\fF.2d 1246, 1256 (5th Cir. 1987); United States v. Jones & Laughlin\\n\\nSteel Corp., 804 F.2d 348, 352 (6th Cir. 1986); Cinciarelli v.\\n\\nReagan, 729 F.2d 801, 807 (D.C. Cir. 1984); Matter of Chi., M.,\\n\\nSt. P. & P. R. Co., 673 F.2d 169, 174 (7th Cir. 1982); Doe v.\\n\\nCiviletti, 635 F.2d 88, 96 (2d Cir. 1980); Werner v. U.S. Dep't of\\n\\nInterior, 581 F.2d 168, 172 (8th Cir. 1978).3\\n\\n The rationale that undergirds the Merrill doctrine is\\n\\nboth salutary and straightforward. The doctrine \\\"expresses the\\n\\nduty of all courts to observe the conditions defined by Congress\\n\\nfor charging the public treasury.\\\" Merrill, 332 U.S. at 385.\\n\\n\\\"Because the federal government's 'fiscal operations are so\\n\\nvarious, and its agencies so numerous and scattered,' there is\\n\\nalways a risk that misinformed . . . representatives may err in\\n\\ninterpreting statutes and regulations, and even 'the utmost\\n\\nvigilance would not save the public from the most serious losses.'\\\"\\n\\nWagner v. Dir., Fed. Emerg. Mgmt. Agency, 847 F.2d 515, 519 (9th\\n\\nCir. 1988) (quoting United States v. Kirkpatrick, 22 U.S. (9\\n\\n\\n\\n\\n 3 In this circuit, the Merrill doctrine has been applied\\nprimarily when a party asserts that the federal government should\\nbe equitably estopped from raising the defense that the acts of\\nits agents were unauthorized. See, e.g., Dantran, Inc. v. U.S.\\nDep't of Labor, 171 F.3d 58, 66 (1st Cir. 1999); Phelps v. Fed.\\nEmerg. Mgmt. Agency, 785 F.2d 13, 17 (1st Cir. 1986). It is\\nabundantly clear, however, that the principle that the federal\\ngovernment cannot be held liable for its agents' unauthorized acts\\nis not limited to cases arising in such a posture.\\n\\n\\n - 11 -\\n\\fWheat.) 720, 735 (1824)). Thus, the Merrill doctrine is designed,\\n\\nin part, to ensure appropriate protection of the public fisc.\\n\\n We say \\\"in part\\\" because the doctrine also rests solidly\\n\\n\\\"upon considerations of sovereign immunity and constitutional\\n\\ngrounds — the potential for interference with the separation of\\n\\ngovernmental powers between the legislative and executive.\\\"\\n\\nPhelps v. Fed. Emerg. Mgmt. Agency, 785 F.2d 13, 17 (1st Cir.\\n\\n1986). These foundational considerations are reinforced by public\\n\\npolicy considerations. See Mendrala v. Crown Mortg. Co., 955 F.2d\\n\\n1132, 1140 (7th Cir. 1992). All of these concerns come into\\n\\nespecially bold relief where, as here, unauthorized acts by a\\n\\nprivate contractor could potentially bind the federal government.\\n\\nSee id. at 1141.\\n\\n Of course, the Merrill doctrine — by its very nature —\\n\\noperates only to safeguard federal instrumentalities.\\n\\nConsequently, it remains for us to determine whether Fannie Mae is\\n\\na federal instrumentality for purposes of the Merrill doctrine —\\n\\na task that no other federal appellate court has yet undertaken.\\n\\nCf. Molton, Allen & Williams, Inc. v. Harris, 613 F.2d 1176, 1179\\n\\n(D.C. Cir. 1980) (assuming but not holding that Merrill doctrine\\n\\napplies to Fannie Mae).\\n\\n We preface this inquiry by noting that the appellant has\\n\\nnot fully developed an argument that Fannie Mae is not a federal\\n\\ninstrumentality under the Merrill doctrine. Nevertheless, his\\n\\n\\n - 12 -\\n\\fmuddled briefing does suggest that because Fannie Mae is not a\\n\\nfederal instrumentality for the purposes of sovereign immunity or\\n\\nthe Federal Tort Claims Act, that status is precluded in the\\n\\nMerrill context. So, too, he argues that as a shareholder-owned\\n\\ncorporation, Fannie Mae should not receive the protections of the\\n\\nMerrill doctrine. These suggestions need not detain us.\\n\\n First, the fact that an entity is deemed not to be a\\n\\nfederal instrumentality for a particular purpose does not signify\\n\\nthat the entity should not be deemed to be a federal\\n\\ninstrumentality for some other purpose. See U.S. ex rel. Adams v.\\n\\nAurora Loan Servs., Inc., 813 F.3d 1259, 1261 (9th Cir. 2016); cf.\\n\\nMendrala, 955 F.2d at 1139 (noting that even if the Federal Home\\n\\nLoan Mortgage Corporation is not a federal instrumentality within\\n\\nthe purview of the Federal Tort Claims Act, that \\\"does not preclude\\n\\na determination that it is a federal instrumentality for other\\n\\npurposes\\\"). Second, the question of instrumentality status is not\\n\\ndetermined either by Fannie Mae's corporate form or by whether\\n\\nFannie Mae serves a \\\"proprietary\\\" (as opposed to a \\\"sovereign\\\")\\n\\nfunction. See Merrill, 332 U.S. at 384 (explaining that \\\"[t]he\\n\\nGovernment may carry on its operations through conventional\\n\\nexecutive agencies or through corporate forms especially created\\n\\nfor defined ends\\\"); see also REW Enters., Inc. v. Premier Bank,\\n\\nN.A., 49 F.3d 163, 167 (5th Cir. 1995) (warning against undue\\n\\nreliance on labels). We agree with the Eleventh Circuit that a\\n\\n\\n - 13 -\\n\\f\\\"federal instrumentality does not divest itself of the privileges\\n\\nof instrumentality status when it acts more like a privately owned\\n\\ninstitution than a federal agency.\\\" Smith v. Russellville Prod.\\n\\nCredit Ass'n, 777 F.2d 1544, 1550 (11th Cir. 1985).\\n\\n With these muddled arguments laid to rest, our inquiry\\n\\nhinges on whether Congress created Fannie Mae to serve an important\\n\\ngovernmental objective. See REW Enters., 49 F.3d at 167-68. In\\n\\nmaking this determination, we look primarily to congressional\\n\\nintent as embodied in Fannie Mae's governing statute. See McCauley\\n\\nv. Thygerson, 732 F.2d 978, 982 (D.C. Cir. 1984). We also take\\n\\ninto account whether preventing Fannie Mae from being bound by the\\n\\nunauthorized acts of its agents would run at cross-purposes with\\n\\nthis intent. See Mendrala, 955 F.2d at 1140-41; McCauley, 732\\n\\nF.2d at 982.\\n\\n Although the question before us is a question of first\\n\\nimpression at the federal appellate level, the road is well-marked.\\n\\nThe Seventh Circuit's decision in Mendrala is particularly\\n\\ninstructive. There, the court concluded that the Federal Home\\n\\nLoan Mortgage Corporation (Freddie Mac) is a federal\\n\\ninstrumentality for purposes of the Merrill doctrine. See 955\\n\\nF.2d at 1140. Looking to its governing statute, the court found\\n\\nthat Freddie Mac \\\"has a public statutory mission: to maintain the\\n\\nsecondary mortgage market and assist in meeting low- and moderate-\\n\\nincome housing goals.\\\" Id. at 1140-41 (citing Pub. L. No. 91-351,\\n\\n\\n - 14 -\\n\\f§ 301, as amended, Pub. L. No. 101-73, Title VII, § 731(a), 103\\n\\nStat. 429 (Aug. 9, 1989)). This mission, the court stated, would\\n\\nbe thwarted if Freddie Mac could be held \\\"responsible for the\\n\\nunauthorized actions\\\" of its agents. Id. at 1141. That the agents\\n\\nin question were employees of a private entity with whom Freddie\\n\\nMac contracted, the court explained, presented an even stronger\\n\\ncase for applying the Merrill doctrine. See id.\\n\\n Freddie Mac and Fannie Mae are siblings under the skin.\\n\\nCf. Jacobs v. Fed. Hous. Fin. Agency, 908 F.3d 884, 887 (3d Cir.\\n\\n2018) (\\\"In the wake of the Great Depression, Congress created\\n\\nFannie, and later Freddie, to support the home-mortgage market.\\\").\\n\\nLike Freddie Mac, Fannie Mae is a shareholder-owned company, which\\n\\noperates under a congressional charter. See id.; 2 U.S.C.\\n\\n§ 622(8). And like Freddie Mac, Fannie Mae serves an important\\n\\ngovernmental objective: \\\"to maintain the secondary mortgage\\n\\nmarket and assist in meeting low- and moderate-income housing\\n\\ngoals.\\\" Mendrala, 955 F.2d at 1140. Enabling Fannie Mae to be\\n\\nheld liable for the unauthorized acts of its agents, particularly\\n\\nthose who are employees of a private entity, would frustrate\\n\\nCongress's intent as expressed in the prescribed nature of Fannie\\n\\nMae's authority. Cf. id. at 1141 (reaching similar conclusion\\n\\nwith respect to Freddie Mac).\\n\\n That ends this aspect of the matter. We hold that Fannie\\n\\nMae is a federal instrumentality for purposes of the Merrill\\n\\n\\n - 15 -\\n\\fdoctrine and, thus, cannot be held liable for the unauthorized\\n\\nacts of its agents.4 Since the appellant's claims are predicated\\n\\non the theory that Fannie Mae should be held to account for the\\n\\nacts of Ditech employees — acts that the record does not show were\\n\\nactually authorized by Fannie Mae — the district court's entry of\\n\\nsummary judgment seems unimpugnable.\\n\\n C.\\n\\n The appellant tries to make an end run around this\\n\\nholding. He contends that language in Fannie Mae's governing\\n\\nstatute allowing it \\\"to sue and be sued,\\\" 17 U.S.C. § 1723a(a),\\n\\nprecludes application of the Merrill doctrine.\\n\\n This contention is wrong on its face. The dispositive\\n\\nquestion is not whether a federal instrumentality can sue and be\\n\\nsued as a general matter but, rather, whether the federal\\n\\ninstrumentality can be sued for the unauthorized acts of its\\n\\nagents. Cf. Edwards v. Tenn. Valley Auth., 255 F.3d 318, 322-25\\n\\n(6th Cir. 2001) (concluding that agency action fell within\\n\\nexception to tort liability under its \\\"sue and be sued\\\" provision).\\n\\nAs we already have explained, Fannie Mae cannot.\\n\\n\\n\\n\\n 4\\n This holding echoes a chorus of decisions by district\\ncourts. See, e.g., Gray v. Seterus, Inc., 233 F. Supp. 3d 865,\\n869 (D. Or. 2017); Cannon v. Wells Fargo Bank N.A., 917 F. Supp.\\n2d 1025, 1035 (N.D. Cal. 2013); Hinton v. Fed. Nat. Mortg. Ass'n,\\n945 F. Supp. 1052, 1060 (S.D. Tex. 1996), aff'd, 137 F.3d 1350\\n(5th Cir. 1998).\\n\\n\\n - 16 -\\n\\f To cinch the matter, the statute governing the FCIC (the\\n\\nfederal instrumentality involved in Merrill) contains precisely\\n\\nthe same \\\"sue and be sued\\\" language upon which the appellant\\n\\nmistakenly relies. See 7 U.S.C. § 1506(d). What is sauce for the\\n\\nMerrill goose is perforce sauce for the appellant's gander.\\n\\n To say more on this point would be supererogatory. There\\n\\nis simply no hint of tension between the operation of Fannie Mae's\\n\\n\\\"sue and be sued\\\" provision and our holding that Fannie Mae is a\\n\\nfederal instrumentality for purposes of the Merrill doctrine.\\n\\n D.\\n\\n Caught in the toils of the Merrill doctrine, the\\n\\nappellant spies what he perceives as an escape route. Even if the\\n\\nMerrill doctrine applies generally to Fannie Mae, his thesis runs,\\n\\nthe doctrine is limited to contract claims and, therefore, does\\n\\nnot defenestrate his tort-based claims. This route is a dead end.\\n\\n The appellant does not offer a shred of authority\\n\\nsupporting his self-serving attempt to truncate the reach of the\\n\\nMerrill doctrine. The case law, though sparse, makes pellucid\\n\\nthat the Merrill doctrine has regularly been applied to foreclose\\n\\nclaims sounding in tort. See, e.g., Gray v. Seterus, Inc., 233 F.\\n\\nSupp. 3d 865, 869 (D. Or. 2017) (collecting cases \\\"which have found\\n\\nthat the Merrill doctrine applies in both contract and statutory\\n\\ntort based claims\\\"); Cannon v. Wells Fargo Bank N.A., 917 F. Supp.\\n\\n2d 1025, 1034 (N.D. Cal. 2013) (explaining that \\\"the Merrill\\n\\n\\n - 17 -\\n\\fdoctrine has been applied to both contract and tort-based claims\\\").\\n\\nNor is there any discernable justification for adopting a\\n\\ncategorical rule that would sideline the Merrill doctrine in\\n\\nactions sounding in tort. After all, the public fisc is at risk\\n\\nregardless of the form of action; and the same separation of\\n\\npowers, sovereign immunity, and public policy concerns that drive\\n\\nthe Merrill doctrine in the contract context are equally implicated\\n\\nin the tort context.\\n\\n The claims that the appellant presses in the case at\\n\\nhand illustrate the fallacy of attempting to draw a blanket\\n\\ndistinction between contract and tort claims with respect to the\\n\\nMerrill doctrine. Even though his claims sound in tort, they are\\n\\ninextricably tied to duties derived from the appellant's\\n\\ncontractual relationship with Fannie Mae. Specifically, the\\n\\nappellant's claims are based on representations allegedly made by\\n\\nDitech personnel during the term of the mortgage and in relation\\n\\nto the mortgage. Seen in this light, construing the Merrill\\n\\ndoctrine to preclude contract claims while allowing parallel\\n\\ncontract-based tort claims would be both incongruous and\\n\\nmischievous — an open invitation to gamesmanship. We hold,\\n\\ntherefore, that even though the appellant's claims sound in tort,\\n\\nthe Merrill doctrine bars his suit.\\n\\n\\n\\n\\n - 18 -\\n\\f E.\\n\\n The appellant has one last shot in his sling. Even\\n\\nassuming that the Merrill doctrine shields Fannie Mae from\\n\\nvicarious liability for the unauthorized acts of its agents, see\\n\\ntext supra, the appellant notes that the doctrine has inherent\\n\\nlimitations. One prominent limitation is that the doctrine does\\n\\nnot bar suits against a federal instrumentality when an agent of\\n\\nthat instrumentality acts with \\\"[a]ctual authority . . . conferred\\n\\neither expressly or by necessary implication.\\\" United States v.\\n\\nFlemmi, 225 F.3d 78, 85 (1st Cir. 2000).\\n\\n With this toehold, the appellant labors to rewrite the\\n\\nMerrill doctrine. He maintains that \\\"regardless of authority,\\\"\\n\\nthe government must be held responsible for the torts of its\\n\\nagents. This is simply too much of a stretch: while an agent\\n\\nordinarily may bind a principal when he acts on the basis of his\\n\\napparent authority, see Restatement (Second) of Agency § 8 (1958),\\n\\napparent authority is \\\"not available to bind the federal\\n\\nsovereign,\\\" Flemmi, 225 F.3d at 85. It follows that the federal\\n\\ngovernment can be held vicariously liable only when it has granted\\n\\nactual authority to its allegedly culpable agents. See id. Here,\\n\\nthe record is devoid of anything that might suggest that Ditech\\n\\npersonnel were granted actual authority by Fannie Mae to make the\\n\\nallegedly inaccurate representations that the appellant attributes\\n\\nto them.\\n\\n\\n - 19 -\\n\\f There is, of course, another potentially pertinent\\n\\nlimitation: the federal government cannot claim the prophylaxis\\n\\nof the Merrill doctrine in the face of its own affirmative\\n\\nmisconduct. See REW Enters., 49 F.3d at 169. \\\"There is no single\\n\\ntest for detecting the presence of affirmative misconduct; each\\n\\ncase must be decided on its own particular facts and\\n\\ncircumstances.\\\" Watkins, 875 F.2d at 707. The caselaw suggests,\\n\\nhowever, that a finding of affirmative misconduct requires either\\n\\nan affirmative misrepresentation of a material fact by the\\n\\ngovernment or some affirmative concealment of such a fact by the\\n\\ngovernment. See id. And in any event, affirmative misconduct\\n\\n\\\"requires something more than simple negligence\\\" on the part of\\n\\nthe federal instrumentality. Dantran Inc. v. U.S. Dep't of Labor,\\n\\n171 F.3d 58, 67 (1st Cir. 1999).\\n\\n In this case, Fannie Mae has asserted the absence of any\\n\\ngenuine issue of material fact with respect to affirmative\\n\\nmisconduct. Thus, the appellant, as the party opposing summary\\n\\njudgment, had the burden of establishing, through materials of\\n\\nevidentiary quality, facts sufficient to support a showing of\\n\\naffirmative misconduct. See Flovac, 817 F.3d at 853. But the\\n\\ndistrict court found \\\"no evidence in the record that Fannie Mae\\n\\nauthorized or affirmatively encouraged Ditech to improperly\\n\\nservice\\\" the appellant's loan. Faiella, 2017 WL 6375600, at *7.\\n\\nRelatedly, the court found nothing in the record \\\"that would\\n\\n\\n - 20 -\\n\\fsupport an inference that Ditech's alleged misrepresentations were\\n\\nthe result of affirmative misconduct as opposed to carelessness\\\"\\n\\non Fannie Mae's part. Id.\\n\\n Before us, the appellant does not challenge these\\n\\nfindings.5 The absence of such a challenge means that the appellant\\n\\nhas waived any right to assert that Fannie Mae committed\\n\\naffirmative misconduct. See DeCaro v. Hasbro, Inc., 580 F.3d 55,\\n\\n64 (1st Cir. 2009) (\\\"It is common ground that contentions not\\n\\nadvanced in an appellant's opening brief are deemed waived.\\\");\\n\\nSandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)\\n\\n(similar).\\n\\nIII. CONCLUSION\\n\\n We need go no further. For the reasons elucidated above,\\n\\nthe judgment of the district court is\\n\\n\\n\\nAffirmed.\\n\\n\\n\\n\\n 5To be sure, the appellant reiterates his argument that\\nfurther discovery should be allowed as to the existence vel non of\\naffirmative misconduct. We already have explained why he is not\\nentitled to further discovery, see supra Part II(A), and beating\\nthis dead horse would serve no useful purpose.\\n\\n\\n - 21 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4410484/\", \"author_raw\": \"SELYA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HOWARD"},"judge2":{"kind":"string","value":"SELYA"},"judge3":{"kind":"string","value":"TORRUELLA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4633231/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Ralph FAIELLA, Plaintiff, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1063\n\n RALPH FAIELLA,\n\n Plaintiff, Appellant,\n\n v.\n\n FEDERAL NATIONAL MORTGAGE ASSOCIATION,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF NEW HAMPSHIRE\n\n [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Torruella and Selya, Circuit Judges.\n\n\n William Christopher Sheridan, with whom Sheridan Law Offices,\nwas on brief, for appellant.\n James W. McGarry, with whom Goodwin Procter LLP was on brief,\nfor appellee.\n\n\n June 26, 2019\n\f SELYA, Circuit Judge. The Merrill doctrine requires a\n\nshowing of actual authority as a basis for holding a federal\n\ninstrumentality vicariously liable for the acts of its agents.\n\nSee Fed. Crop Ins. Co. v. Merrill, 332 U.S. 380, 384 (1947). It\n\nfollows that such an instrumentality cannot be held vicariously\n\nliable for acts of its agents that were not actually authorized\n\neven if a private principal could be held liable in the same or\n\nsimilar circumstances under a theory of apparent authority. See\n\nid. The case at hand arises against this backdrop and presents a\n\nquestion of first impression at the federal appellate level: does\n\nthe protective carapace of the Merrill doctrine extend to the\n\nFederal National Mortgage Association (Fannie Mae)? Because we\n\nanswer this question in the affirmative and likewise conclude that\n\nthe other arguments advanced by plaintiff-appellant Ralph Faiella\n\nlack force, we affirm the district court's entry of summary\n\njudgment in Fannie Mae's favor.\n\nI. BACKGROUND\n\n We briefly rehearse the relevant facts and travel of the\n\ncase, viewing those facts in the light most flattering to the\n\nappellant (the party opposing summary judgment). See Avery v.\n\nHughes, 661 F.3d 690, 691 (1st Cir. 2011). In 2007, the appellant\n\ntook out a loan secured by a first mortgage on his principal\n\nresidence in Plaistow, New Hampshire. The lender assigned the\n\nmortgage loan to Fannie Mae, which arranged for it to be serviced\n\n\n - 2 -\n\fby Green Tree Servicing LLC, now called Ditech Financial LLC\n\n(Ditech).\n\n Over the next eight years, the appellant occasionally\n\nfailed to make his monthly mortgage payments. On each occasion,\n\nhe worked with an assigned Ditech representative to cure the\n\ndefault and effect late payment of the arrearage. In the summer\n\nof 2015, the appellant missed yet another payment. He thereafter\n\nreceived a mortgage statement indicating an arrearage of\n\n$5,428.61, which included an exhortation that he contact his\n\nassigned representative to bring his account current. After\n\nspeaking with the representative, the appellant mailed Ditech a\n\ncheck covering both the described arrearage and his anticipated\n\nOctober 2015 mortgage payment. This check, in the gross amount of\n\n$6,167.21, was mailed to Ditech on September 17, 2015.\n\n Two days later, the appellant received a notice of\n\nforeclosure on his home. He immediately wrote to his Ditech\n\nrepresentative to confirm that he had sent a check sufficient to\n\ncure the default. In the same letter, he requested that the\n\nforeclosure be halted. The appellant heard nothing for over a\n\nweek. Ditech then returned his check and notified him that the\n\namount tendered was not correct.\n\n The appellant promptly contacted his Ditech\n\nrepresentative. She told him that the problem was that he had\n\nsubmitted a personal check, not a cashier's check. Relying on\n\n\n - 3 -\n\fthis insight, the appellant sent Ditech a cashier's check in the\n\nsame amount. His efforts proved unavailing: the foreclosure sale\n\nproceeded, and Fannie Mae acquired the mortgaged property at that\n\nsale on October 16, 2015. For its part, Ditech simply returned\n\nthe cashier's check to the appellant and instructed him to contact\n\nhis representative concerning the amount owed. When the appellant\n\ncomplied, his representative informed him that she did not know\n\nthe amount needed to wipe out the foreclosure and reinstate his\n\nloan.\n\n Notwithstanding the foreclosure, the appellant\n\napparently retained physical possession of the premises. He went\n\non the offensive and, in February of 2016, sued Fannie Mae and\n\nDitech in a New Hampshire state court. The appellant's complaint\n\nprayed for a declaratory judgment regarding the invalidity of the\n\nforeclosure, asserted a wrongful foreclosure claim, and sought\n\nmoney damages for economic loss and emotional distress. The action\n\nwas removed to the United States District Court for the District\n\nof New Hampshire. See 28 U.S.C. §§ 1332, 1441. There, the\n\nappellant filed an amended complaint seeking only a declaratory\n\njudgment with respect to the alleged invalidity of the foreclosure.\n\nOn its own motion, Ditech was dropped from the case on the ground\n\nthat it had not participated in the foreclosure proceeding.\n\n In July of 2016, Fannie Mae moved to rescind its\n\nforeclosure deed and reinstate the appellant's mortgage. The\n\n\n - 4 -\n\fappellant opposed the motion, arguing that this unrequested\n\nequitable relief would prevent him from seeking damages. The\n\ndistrict court denied Fannie Mae's motion and granted the\n\nappellant's oral motion to amend his complaint to reassert his\n\ndamages claims.\n\n The appellant filed a further amended complaint,\n\nreplacing his previous prayer for declaratory relief with a\n\ncompendium of damages claims alleging violations of several\n\nfederal and state debt collection and consumer protection laws and\n\nregulations. This further amended complaint also included common-\n\nlaw tort claims for deceit and negligent misrepresentation.1\n\nFannie Mae successfully moved to dismiss the statutory claims on\n\nvarious grounds. The dismissal of these claims (which is not an\n\nissue here) left only the appellant's common-law claims alleging\n\nthat Fannie Mae was vicariously liable for deceit and negligent\n\nmisrepresentation committed by Ditech employees.\n\n In due season, Fannie Mae answered what remained of the\n\nfurther amended complaint. Its answer contained, inter alia, an\n\naffirmative defense asserting that, to the extent that the\n\n\n\n\n 1At the same time, the appellant sought to reintroduce Ditech\nas a defendant. Ditech responded by moving to strike the\nallegations against it as beyond the scope of the amendment that\nhad been allowed. The court granted this motion, thus preserving\nDitech's non-party status. The appellant's claims against Ditech\nare apparently being litigated in a state-court action and need\nnot concern us.\n\n\n - 5 -\n\fappellant sought to hold Fannie Mae vicariously liable for Ditech's\n\nactions, any such liability was pretermitted by the Merrill\n\ndoctrine. Alternatively, Fannie Mae asserted that the appellant's\n\nclaims against it were barred by the economic-loss doctrine, a\n\ncommon-law principle recognized in New Hampshire. See, e.g., Wyle\n\nv. Lees, 33 A.3d 1187, 1190 (N.H. 2011); Plourde Sand & Gravel v.\n\nJGI E., Inc., 917 A.2d 1250, 1253 (N.H. 2007).\n\n During the course of two status conferences, the parties\n\nagreed that Fannie Mae's affirmative defenses were essentially\n\nlegal in nature and were potentially dispositive.2 In line with\n\nthis agreement, the court entered a bifurcated scheduling order,\n\nunder which it would address the merits of Fannie Mae's Merrill\n\ndoctrine and economic-loss arguments before dealing with the\n\nappellant's damages claims.\n\n Fannie Mae moved for summary judgment on the Merrill\n\ndoctrine and economic-loss issues. The appellant opposed the\n\nmotion. The district court granted summary judgment on the basis\n\nof the Merrill doctrine, holding that Fannie Mae was a federal\n\ninstrumentality protected from vicarious liability for the\n\nunauthorized acts of its agents. See Faiella v. Fed. Nat'l Mortg.\n\n\n 2 This agreement was facilitated by Fannie Mae's stipulation\nthat, for purposes of its summary judgment motion, it could be\nassumed that Ditech acted as its agent at all relevant times. So,\ntoo, the agreement was facilitated by the appellant's\nacknowledgment that no discovery was needed in order to permit him\nto address these issues.\n\n\n - 6 -\n\fAss'n, No. 16-CV-088, 2017 WL 6375600, at *6-*8 (D.N.H. Dec. 13,\n\n2017). This timely appeal ensued.\n\nII. ANALYSIS\n\n We review the entry of summary judgment de novo. See\n\nIrobe v. U.S. Dep't of Agric., 890 F.3d 371, 377 (1st Cir. 2018).\n\n\"A district court may only grant summary judgment when the record,\n\nconstrued in the light most congenial to the nonmovant, presents\n\nno genuine issue as to any material fact and reflects the movant's\n\nentitlement to judgment as a matter of law.\" McKenney v. Mangino,\n\n873 F.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311\n\n(2018); see Fed. R. Civ. P. 56(a). When the motion is premised\n\nupon the absence of any genuine issue of material fact, the burden\n\nshifts to the nonmovant to identify, by means of materials of\n\nevidentiary quality, an issue of fact that is \"more than 'merely\n\ncolorable.'\" Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st\n\nCir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,\n\n249 (1986)).\n\n A.\n\n The appellant mounts a threshold argument. He says that\n\nthe grant of summary judgment was improvident because the record\n\nwas not sufficiently developed to permit resolution of the motion.\n\nThis argument, though, cannot be reconciled with the appellant's\n\nwords and actions in the court below.\n\n\n\n\n - 7 -\n\f At a status conference on May 23, 2017, the appellant\n\nagreed that he would review Fannie Mae's motion for summary\n\njudgment (predicated on the Merrill doctrine and economic-loss\n\nissues) and notify the court if he thought that discovery was\n\nneeded to allow him to respond to the motion. During a follow-up\n\nconference on September 14, the appellant concurred in the district\n\ncourt's statement that \"the parties are now in agreement that\n\nthere's no discovery that needs to be conducted . . . to respond\n\nto the pending motion for summary judgment.\" By words and actions,\n\nthe appellant represented to the district court that the facts\n\nwere sufficiently developed to permit resolution of the summary\n\njudgment motion. A party ordinarily is bound by his\n\nrepresentations to a court, see United States v. Orsini, 907 F.3d\n\n115, 119-20 (1st Cir. 2018), and — having staked out his position\n\nin response to the district court's inquiry — the appellant cannot\n\nnow repudiate that position.\n\n If more were needed — and we do not think that it is —\n\nFederal Rule of Civil Procedure 56(d) provides a failsafe for this\n\nsort of situation. Under Rule 56(d), \"if a party opposing summary\n\njudgment shows that 'for specified reasons, [he] cannot present\n\nfacts essential to justify [his] opposition,' the district court\n\nmay grant appropriate relief.\" Nieves-Romero v. United States,\n\n715 F.3d 375, 381 (1st Cir. 2013) (alteration in original) (quoting\n\nFed. R. Civ. P. 56(d)). Rule 56(d), though, is designed to help\n\n\n - 8 -\n\fthe vigilant, not those who slumber upon perceptible rights. The\n\nrule \"is not self-executing, but, rather, must be appropriately\n\ninvoked.\" Rivera-Almodóvar v. Instituto Socioeconómico\n\nComunitario, Inc., 730 F.3d 23, 28 (1st Cir. 2013). When a party\n\nconfronted with a summary judgment motion does not invoke Rule\n\n56(d) through an affidavit or some similarly authoritative\n\nproffer, he relinquishes any right to challenge the subsequent\n\nentry of summary judgment on the basis of insufficient factual\n\ndevelopment. See id. at 28-29; Jones v. Secord, 684 F.3d 1, 6\n\n(1st Cir. 2012). So it is here.\n\n For these reasons, we reject the appellant's threshold\n\nargument and proceed to review the district court's summary\n\njudgment ruling on the existing record.\n\n B.\n\n The pivotal question with respect to the district\n\ncourt's summary judgment ruling is whether Fannie Mae is a federal\n\ninstrumentality for purposes of the Merrill doctrine. We turn\n\nnext to that question.\n\n In Merrill, the respondents were farmers who had applied\n\nfor insurance from the Federal Crop Insurance Corporation (FCIC),\n\na government-owned enterprise established by Congress. See 332\n\nU.S. at 381-82. The respondents' application for crop insurance\n\nwas processed by a non-federal actor, the county Agricultural\n\nConservation Committee (the Committee), acting as an agent for the\n\n\n - 9 -\n\fFCIC. See id. at 382. The FCIC eventually received and approved\n\nthe application. See id. But when the respondents tried to\n\ncollect on the insurance during a time of drought, it came to light\n\nthat the Committee, despite being informed by the respondents about\n\ncertain disqualifying facts, had not included those facts in the\n\napplication package that it forwarded to the FCIC. See id. Once\n\nmade aware of the disqualifying information, the FCIC refused to\n\nhonor the respondents' claims. See id.\n\n The respondents sued the FCIC to make good on the policy\n\nand recover the insurance proceeds. The case wended its way to\n\nthe Supreme Court, which upheld the FCIC's refusal to pay. See\n\nid. at 386. Although recovery likely could have been had against\n\na private insurer on similar facts, the Court held that the federal\n\ngovernment could not be bound in the same way. See id. at 383-\n\n84. The Court reasoned that \"anyone entering into an arrangement\n\nwith the Government takes the risk of having accurately ascertained\n\nthat he who purports to act for the Government stays within the\n\nbounds of his authority.\" Id. at 384. From this seed, a principle\n\nsprouted: the federal government cannot be bound by the\n\nunauthorized acts of its agents. See United States v. Ellis, 527\n\nF.3d 203, 207 (1st Cir. 2008); United States v. Vanhorn, 20 F.3d\n\n104, 112 n.19 (4th Cir. 1994); Penny v. Giuffrida, 897 F.2d 1543,\n\n1546 (10th Cir. 1990); Watkins v. U.S. Army, 875 F.2d 699, 707\n\n(9th Cir. 1989); United States v. Don B. Hart Equity Pure Tr., 818\n\n\n - 10 -\n\fF.2d 1246, 1256 (5th Cir. 1987); United States v. Jones & Laughlin\n\nSteel Corp., 804 F.2d 348, 352 (6th Cir. 1986); Cinciarelli v.\n\nReagan, 729 F.2d 801, 807 (D.C. Cir. 1984); Matter of Chi., M.,\n\nSt. P. & P. R. Co., 673 F.2d 169, 174 (7th Cir. 1982); Doe v.\n\nCiviletti, 635 F.2d 88, 96 (2d Cir. 1980); Werner v. U.S. Dep't of\n\nInterior, 581 F.2d 168, 172 (8th Cir. 1978).3\n\n The rationale that undergirds the Merrill doctrine is\n\nboth salutary and straightforward. The doctrine \"expresses the\n\nduty of all courts to observe the conditions defined by Congress\n\nfor charging the public treasury.\" Merrill, 332 U.S. at 385.\n\n\"Because the federal government's 'fiscal operations are so\n\nvarious, and its agencies so numerous and scattered,' there is\n\nalways a risk that misinformed . . . representatives may err in\n\ninterpreting statutes and regulations, and even 'the utmost\n\nvigilance would not save the public from the most serious losses.'\"\n\nWagner v. Dir., Fed. Emerg. Mgmt. Agency, 847 F.2d 515, 519 (9th\n\nCir. 1988) (quoting United States v. Kirkpatrick, 22 U.S. (9\n\n\n\n\n 3 In this circuit, the Merrill doctrine has been applied\nprimarily when a party asserts that the federal government should\nbe equitably estopped from raising the defense that the acts of\nits agents were unauthorized. See, e.g., Dantran, Inc. v. U.S.\nDep't of Labor, 171 F.3d 58, 66 (1st Cir. 1999); Phelps v. Fed.\nEmerg. Mgmt. Agency, 785 F.2d 13, 17 (1st Cir. 1986). It is\nabundantly clear, however, that the principle that the federal\ngovernment cannot be held liable for its agents' unauthorized acts\nis not limited to cases arising in such a posture.\n\n\n - 11 -\n\fWheat.) 720, 735 (1824)). Thus, the Merrill doctrine is designed,\n\nin part, to ensure appropriate protection of the public fisc.\n\n We say \"in part\" because the doctrine also rests solidly\n\n\"upon considerations of sovereign immunity and constitutional\n\ngrounds — the potential for interference with the separation of\n\ngovernmental powers between the legislative and executive.\"\n\nPhelps v. Fed. Emerg. Mgmt. Agency, 785 F.2d 13, 17 (1st Cir.\n\n1986). These foundational considerations are reinforced by public\n\npolicy considerations. See Mendrala v. Crown Mortg. Co., 955 F.2d\n\n1132, 1140 (7th Cir. 1992). All of these concerns come into\n\nespecially bold relief where, as here, unauthorized acts by a\n\nprivate contractor could potentially bind the federal government.\n\nSee id. at 1141.\n\n Of course, the Merrill doctrine — by its very nature —\n\noperates only to safeguard federal instrumentalities.\n\nConsequently, it remains for us to determine whether Fannie Mae is\n\na federal instrumentality for purposes of the Merrill doctrine —\n\na task that no other federal appellate court has yet undertaken.\n\nCf. Molton, Allen & Williams, Inc. v. Harris, 613 F.2d 1176, 1179\n\n(D.C. Cir. 1980) (assuming but not holding that Merrill doctrine\n\napplies to Fannie Mae).\n\n We preface this inquiry by noting that the appellant has\n\nnot fully developed an argument that Fannie Mae is not a federal\n\ninstrumentality under the Merrill doctrine. Nevertheless, his\n\n\n - 12 -\n\fmuddled briefing does suggest that because Fannie Mae is not a\n\nfederal instrumentality for the purposes of sovereign immunity or\n\nthe Federal Tort Claims Act, that status is precluded in the\n\nMerrill context. So, too, he argues that as a shareholder-owned\n\ncorporation, Fannie Mae should not receive the protections of the\n\nMerrill doctrine. These suggestions need not detain us.\n\n First, the fact that an entity is deemed not to be a\n\nfederal instrumentality for a particular purpose does not signify\n\nthat the entity should not be deemed to be a federal\n\ninstrumentality for some other purpose. See U.S. ex rel. Adams v.\n\nAurora Loan Servs., Inc., 813 F.3d 1259, 1261 (9th Cir. 2016); cf.\n\nMendrala, 955 F.2d at 1139 (noting that even if the Federal Home\n\nLoan Mortgage Corporation is not a federal instrumentality within\n\nthe purview of the Federal Tort Claims Act, that \"does not preclude\n\na determination that it is a federal instrumentality for other\n\npurposes\"). Second, the question of instrumentality status is not\n\ndetermined either by Fannie Mae's corporate form or by whether\n\nFannie Mae serves a \"proprietary\" (as opposed to a \"sovereign\")\n\nfunction. See Merrill, 332 U.S. at 384 (explaining that \"[t]he\n\nGovernment may carry on its operations through conventional\n\nexecutive agencies or through corporate forms especially created\n\nfor defined ends\"); see also REW Enters., Inc. v. Premier Bank,\n\nN.A., 49 F.3d 163, 167 (5th Cir. 1995) (warning against undue\n\nreliance on labels). We agree with the Eleventh Circuit that a\n\n\n - 13 -\n\f\"federal instrumentality does not divest itself of the privileges\n\nof instrumentality status when it acts more like a privately owned\n\ninstitution than a federal agency.\" Smith v. Russellville Prod.\n\nCredit Ass'n, 777 F.2d 1544, 1550 (11th Cir. 1985).\n\n With these muddled arguments laid to rest, our inquiry\n\nhinges on whether Congress created Fannie Mae to serve an important\n\ngovernmental objective. See REW Enters., 49 F.3d at 167-68. In\n\nmaking this determination, we look primarily to congressional\n\nintent as embodied in Fannie Mae's governing statute. See McCauley\n\nv. Thygerson, 732 F.2d 978, 982 (D.C. Cir. 1984). We also take\n\ninto account whether preventing Fannie Mae from being bound by the\n\nunauthorized acts of its agents would run at cross-purposes with\n\nthis intent. See Mendrala, 955 F.2d at 1140-41; McCauley, 732\n\nF.2d at 982.\n\n Although the question before us is a question of first\n\nimpression at the federal appellate level, the road is well-marked.\n\nThe Seventh Circuit's decision in Mendrala is particularly\n\ninstructive. There, the court concluded that the Federal Home\n\nLoan Mortgage Corporation (Freddie Mac) is a federal\n\ninstrumentality for purposes of the Merrill doctrine. See 955\n\nF.2d at 1140. Looking to its governing statute, the court found\n\nthat Freddie Mac \"has a public statutory mission: to maintain the\n\nsecondary mortgage market and assist in meeting low- and moderate-\n\nincome housing goals.\" Id. at 1140-41 (citing Pub. L. No. 91-351,\n\n\n - 14 -\n\f§ 301, as amended, Pub. L. No. 101-73, Title VII, § 731(a), 103\n\nStat. 429 (Aug. 9, 1989)). This mission, the court stated, would\n\nbe thwarted if Freddie Mac could be held \"responsible for the\n\nunauthorized actions\" of its agents. Id. at 1141. That the agents\n\nin question were employees of a private entity with whom Freddie\n\nMac contracted, the court explained, presented an even stronger\n\ncase for applying the Merrill doctrine. See id.\n\n Freddie Mac and Fannie Mae are siblings under the skin.\n\nCf. Jacobs v. Fed. Hous. Fin. Agency, 908 F.3d 884, 887 (3d Cir.\n\n2018) (\"In the wake of the Great Depression, Congress created\n\nFannie, and later Freddie, to support the home-mortgage market.\").\n\nLike Freddie Mac, Fannie Mae is a shareholder-owned company, which\n\noperates under a congressional charter. See id.; 2 U.S.C.\n\n§ 622(8). And like Freddie Mac, Fannie Mae serves an important\n\ngovernmental objective: \"to maintain the secondary mortgage\n\nmarket and assist in meeting low- and moderate-income housing\n\ngoals.\" Mendrala, 955 F.2d at 1140. Enabling Fannie Mae to be\n\nheld liable for the unauthorized acts of its agents, particularly\n\nthose who are employees of a private entity, would frustrate\n\nCongress's intent as expressed in the prescribed nature of Fannie\n\nMae's authority. Cf. id. at 1141 (reaching similar conclusion\n\nwith respect to Freddie Mac).\n\n That ends this aspect of the matter. We hold that Fannie\n\nMae is a federal instrumentality for purposes of the Merrill\n\n\n - 15 -\n\fdoctrine and, thus, cannot be held liable for the unauthorized\n\nacts of its agents.4 Since the appellant's claims are predicated\n\non the theory that Fannie Mae should be held to account for the\n\nacts of Ditech employees — acts that the record does not show were\n\nactually authorized by Fannie Mae — the district court's entry of\n\nsummary judgment seems unimpugnable.\n\n C.\n\n The appellant tries to make an end run around this\n\nholding. He contends that language in Fannie Mae's governing\n\nstatute allowing it \"to sue and be sued,\" 17 U.S.C. § 1723a(a),\n\nprecludes application of the Merrill doctrine.\n\n This contention is wrong on its face. The dispositive\n\nquestion is not whether a federal instrumentality can sue and be\n\nsued as a general matter but, rather, whether the federal\n\ninstrumentality can be sued for the unauthorized acts of its\n\nagents. Cf. Edwards v. Tenn. Valley Auth., 255 F.3d 318, 322-25\n\n(6th Cir. 2001) (concluding that agency action fell within\n\nexception to tort liability under its \"sue and be sued\" provision).\n\nAs we already have explained, Fannie Mae cannot.\n\n\n\n\n 4\n This holding echoes a chorus of decisions by district\ncourts. See, e.g., Gray v. Seterus, Inc., 233 F. Supp. 3d 865,\n869 (D. Or. 2017); Cannon v. Wells Fargo Bank N.A., 917 F. Supp.\n2d 1025, 1035 (N.D. Cal. 2013); Hinton v. Fed. Nat. Mortg. Ass'n,\n945 F. Supp. 1052, 1060 (S.D. Tex. 1996), aff'd, 137 F.3d 1350\n(5th Cir. 1998).\n\n\n - 16 -\n\f To cinch the matter, the statute governing the FCIC (the\n\nfederal instrumentality involved in Merrill) contains precisely\n\nthe same \"sue and be sued\" language upon which the appellant\n\nmistakenly relies. See 7 U.S.C. § 1506(d). What is sauce for the\n\nMerrill goose is perforce sauce for the appellant's gander.\n\n To say more on this point would be supererogatory. There\n\nis simply no hint of tension between the operation of Fannie Mae's\n\n\"sue and be sued\" provision and our holding that Fannie Mae is a\n\nfederal instrumentality for purposes of the Merrill doctrine.\n\n D.\n\n Caught in the toils of the Merrill doctrine, the\n\nappellant spies what he perceives as an escape route. Even if the\n\nMerrill doctrine applies generally to Fannie Mae, his thesis runs,\n\nthe doctrine is limited to contract claims and, therefore, does\n\nnot defenestrate his tort-based claims. This route is a dead end.\n\n The appellant does not offer a shred of authority\n\nsupporting his self-serving attempt to truncate the reach of the\n\nMerrill doctrine. The case law, though sparse, makes pellucid\n\nthat the Merrill doctrine has regularly been applied to foreclose\n\nclaims sounding in tort. See, e.g., Gray v. Seterus, Inc., 233 F.\n\nSupp. 3d 865, 869 (D. Or. 2017) (collecting cases \"which have found\n\nthat the Merrill doctrine applies in both contract and statutory\n\ntort based claims\"); Cannon v. Wells Fargo Bank N.A., 917 F. Supp.\n\n2d 1025, 1034 (N.D. Cal. 2013) (explaining that \"the Merrill\n\n\n - 17 -\n\fdoctrine has been applied to both contract and tort-based claims\").\n\nNor is there any discernable justification for adopting a\n\ncategorical rule that would sideline the Merrill doctrine in\n\nactions sounding in tort. After all, the public fisc is at risk\n\nregardless of the form of action; and the same separation of\n\npowers, sovereign immunity, and public policy concerns that drive\n\nthe Merrill doctrine in the contract context are equally implicated\n\nin the tort context.\n\n The claims that the appellant presses in the case at\n\nhand illustrate the fallacy of attempting to draw a blanket\n\ndistinction between contract and tort claims with respect to the\n\nMerrill doctrine. Even though his claims sound in tort, they are\n\ninextricably tied to duties derived from the appellant's\n\ncontractual relationship with Fannie Mae. Specifically, the\n\nappellant's claims are based on representations allegedly made by\n\nDitech personnel during the term of the mortgage and in relation\n\nto the mortgage. Seen in this light, construing the Merrill\n\ndoctrine to preclude contract claims while allowing parallel\n\ncontract-based tort claims would be both incongruous and\n\nmischievous — an open invitation to gamesmanship. We hold,\n\ntherefore, that even though the appellant's claims sound in tort,\n\nthe Merrill doctrine bars his suit.\n\n\n\n\n - 18 -\n\f E.\n\n The appellant has one last shot in his sling. Even\n\nassuming that the Merrill doctrine shields Fannie Mae from\n\nvicarious liability for the unauthorized acts of its agents, see\n\ntext supra, the appellant notes that the doctrine has inherent\n\nlimitations. One prominent limitation is that the doctrine does\n\nnot bar suits against a federal instrumentality when an agent of\n\nthat instrumentality acts with \"[a]ctual authority . . . conferred\n\neither expressly or by necessary implication.\" United States v.\n\nFlemmi, 225 F.3d 78, 85 (1st Cir. 2000).\n\n With this toehold, the appellant labors to rewrite the\n\nMerrill doctrine. He maintains that \"regardless of authority,\"\n\nthe government must be held responsible for the torts of its\n\nagents. This is simply too much of a stretch: while an agent\n\nordinarily may bind a principal when he acts on the basis of his\n\napparent authority, see Restatement (Second) of Agency § 8 (1958),\n\napparent authority is \"not available to bind the federal\n\nsovereign,\" Flemmi, 225 F.3d at 85. It follows that the federal\n\ngovernment can be held vicariously liable only when it has granted\n\nactual authority to its allegedly culpable agents. See id. Here,\n\nthe record is devoid of anything that might suggest that Ditech\n\npersonnel were granted actual authority by Fannie Mae to make the\n\nallegedly inaccurate representations that the appellant attributes\n\nto them.\n\n\n - 19 -\n\f There is, of course, another potentially pertinent\n\nlimitation: the federal government cannot claim the prophylaxis\n\nof the Merrill doctrine in the face of its own affirmative\n\nmisconduct. See REW Enters., 49 F.3d at 169. \"There is no single\n\ntest for detecting the presence of affirmative misconduct; each\n\ncase must be decided on its own particular facts and\n\ncircumstances.\" Watkins, 875 F.2d at 707. The caselaw suggests,\n\nhowever, that a finding of affirmative misconduct requires either\n\nan affirmative misrepresentation of a material fact by the\n\ngovernment or some affirmative concealment of such a fact by the\n\ngovernment. See id. And in any event, affirmative misconduct\n\n\"requires something more than simple negligence\" on the part of\n\nthe federal instrumentality. Dantran Inc. v. U.S. Dep't of Labor,\n\n171 F.3d 58, 67 (1st Cir. 1999).\n\n In this case, Fannie Mae has asserted the absence of any\n\ngenuine issue of material fact with respect to affirmative\n\nmisconduct. Thus, the appellant, as the party opposing summary\n\njudgment, had the burden of establishing, through materials of\n\nevidentiary quality, facts sufficient to support a showing of\n\naffirmative misconduct. See Flovac, 817 F.3d at 853. But the\n\ndistrict court found \"no evidence in the record that Fannie Mae\n\nauthorized or affirmatively encouraged Ditech to improperly\n\nservice\" the appellant's loan. Faiella, 2017 WL 6375600, at *7.\n\nRelatedly, the court found nothing in the record \"that would\n\n\n - 20 -\n\fsupport an inference that Ditech's alleged misrepresentations were\n\nthe result of affirmative misconduct as opposed to carelessness\"\n\non Fannie Mae's part. Id.\n\n Before us, the appellant does not challenge these\n\nfindings.5 The absence of such a challenge means that the appellant\n\nhas waived any right to assert that Fannie Mae committed\n\naffirmative misconduct. See DeCaro v. Hasbro, Inc., 580 F.3d 55,\n\n64 (1st Cir. 2009) (\"It is common ground that contentions not\n\nadvanced in an appellant's opening brief are deemed waived.\");\n\nSandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)\n\n(similar).\n\nIII. CONCLUSION\n\n We need go no further. For the reasons elucidated above,\n\nthe judgment of the district court is\n\n\n\nAffirmed.\n\n\n\n\n 5To be sure, the appellant reiterates his argument that\nfurther discovery should be allowed as to the existence vel non of\naffirmative misconduct. We already have explained why he is not\nentitled to further discovery, see supra Part II(A), and beating\nthis dead horse would serve no useful purpose.\n\n\n - 21 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Ralph FAIELLA, Plaintiff, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant, Appellee.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1063\\n\\n RALPH FAIELLA,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n FEDERAL NATIONAL MORTGAGE ASSOCIATION,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF NEW HAMPSHIRE\\n\\n [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Torruella and Selya, Circuit Judges.\\n\\n\\n William Christopher Sheridan, with whom Sheridan Law Offices,\\nwas on brief, for appellant.\\n James W. McGarry, with whom Goodwin Procter LLP was on brief,\\nfor appellee.\\n\\n\\n June 26, 2019\\n\\f SELYA, Circuit Judge. The Merrill doctrine requires a\\n\\nshowing of actual authority as a basis for holding a federal\\n\\ninstrumentality vicariously liable for the acts of its agents.\\n\\nSee Fed. Crop Ins. Co. v. Merrill, 332 U.S. 380, 384 (1947). It\\n\\nfollows that such an instrumentality cannot be held vicariously\\n\\nliable for acts of its agents that were not actually authorized\\n\\neven if a private principal could be held liable in the same or\\n\\nsimilar circumstances under a theory of apparent authority. See\\n\\nid. The case at hand arises against this backdrop and presents a\\n\\nquestion of first impression at the federal appellate level: does\\n\\nthe protective carapace of the Merrill doctrine extend to the\\n\\nFederal National Mortgage Association (Fannie Mae)? Because we\\n\\nanswer this question in the affirmative and likewise conclude that\\n\\nthe other arguments advanced by plaintiff-appellant Ralph Faiella\\n\\nlack force, we affirm the district court's entry of summary\\n\\njudgment in Fannie Mae's favor.\\n\\nI. BACKGROUND\\n\\n We briefly rehearse the relevant facts and travel of the\\n\\ncase, viewing those facts in the light most flattering to the\\n\\nappellant (the party opposing summary judgment). See Avery v.\\n\\nHughes, 661 F.3d 690, 691 (1st Cir. 2011). In 2007, the appellant\\n\\ntook out a loan secured by a first mortgage on his principal\\n\\nresidence in Plaistow, New Hampshire. The lender assigned the\\n\\nmortgage loan to Fannie Mae, which arranged for it to be serviced\\n\\n\\n - 2 -\\n\\fby Green Tree Servicing LLC, now called Ditech Financial LLC\\n\\n(Ditech).\\n\\n Over the next eight years, the appellant occasionally\\n\\nfailed to make his monthly mortgage payments. On each occasion,\\n\\nhe worked with an assigned Ditech representative to cure the\\n\\ndefault and effect late payment of the arrearage. In the summer\\n\\nof 2015, the appellant missed yet another payment. He thereafter\\n\\nreceived a mortgage statement indicating an arrearage of\\n\\n$5,428.61, which included an exhortation that he contact his\\n\\nassigned representative to bring his account current. After\\n\\nspeaking with the representative, the appellant mailed Ditech a\\n\\ncheck covering both the described arrearage and his anticipated\\n\\nOctober 2015 mortgage payment. This check, in the gross amount of\\n\\n$6,167.21, was mailed to Ditech on September 17, 2015.\\n\\n Two days later, the appellant received a notice of\\n\\nforeclosure on his home. He immediately wrote to his Ditech\\n\\nrepresentative to confirm that he had sent a check sufficient to\\n\\ncure the default. In the same letter, he requested that the\\n\\nforeclosure be halted. The appellant heard nothing for over a\\n\\nweek. Ditech then returned his check and notified him that the\\n\\namount tendered was not correct.\\n\\n The appellant promptly contacted his Ditech\\n\\nrepresentative. She told him that the problem was that he had\\n\\nsubmitted a personal check, not a cashier's check. Relying on\\n\\n\\n - 3 -\\n\\fthis insight, the appellant sent Ditech a cashier's check in the\\n\\nsame amount. His efforts proved unavailing: the foreclosure sale\\n\\nproceeded, and Fannie Mae acquired the mortgaged property at that\\n\\nsale on October 16, 2015. For its part, Ditech simply returned\\n\\nthe cashier's check to the appellant and instructed him to contact\\n\\nhis representative concerning the amount owed. When the appellant\\n\\ncomplied, his representative informed him that she did not know\\n\\nthe amount needed to wipe out the foreclosure and reinstate his\\n\\nloan.\\n\\n Notwithstanding the foreclosure, the appellant\\n\\napparently retained physical possession of the premises. He went\\n\\non the offensive and, in February of 2016, sued Fannie Mae and\\n\\nDitech in a New Hampshire state court. The appellant's complaint\\n\\nprayed for a declaratory judgment regarding the invalidity of the\\n\\nforeclosure, asserted a wrongful foreclosure claim, and sought\\n\\nmoney damages for economic loss and emotional distress. The action\\n\\nwas removed to the United States District Court for the District\\n\\nof New Hampshire. See 28 U.S.C. §§ 1332, 1441. There, the\\n\\nappellant filed an amended complaint seeking only a declaratory\\n\\njudgment with respect to the alleged invalidity of the foreclosure.\\n\\nOn its own motion, Ditech was dropped from the case on the ground\\n\\nthat it had not participated in the foreclosure proceeding.\\n\\n In July of 2016, Fannie Mae moved to rescind its\\n\\nforeclosure deed and reinstate the appellant's mortgage. The\\n\\n\\n - 4 -\\n\\fappellant opposed the motion, arguing that this unrequested\\n\\nequitable relief would prevent him from seeking damages. The\\n\\ndistrict court denied Fannie Mae's motion and granted the\\n\\nappellant's oral motion to amend his complaint to reassert his\\n\\ndamages claims.\\n\\n The appellant filed a further amended complaint,\\n\\nreplacing his previous prayer for declaratory relief with a\\n\\ncompendium of damages claims alleging violations of several\\n\\nfederal and state debt collection and consumer protection laws and\\n\\nregulations. This further amended complaint also included common-\\n\\nlaw tort claims for deceit and negligent misrepresentation.1\\n\\nFannie Mae successfully moved to dismiss the statutory claims on\\n\\nvarious grounds. The dismissal of these claims (which is not an\\n\\nissue here) left only the appellant's common-law claims alleging\\n\\nthat Fannie Mae was vicariously liable for deceit and negligent\\n\\nmisrepresentation committed by Ditech employees.\\n\\n In due season, Fannie Mae answered what remained of the\\n\\nfurther amended complaint. Its answer contained, inter alia, an\\n\\naffirmative defense asserting that, to the extent that the\\n\\n\\n\\n\\n 1At the same time, the appellant sought to reintroduce Ditech\\nas a defendant. Ditech responded by moving to strike the\\nallegations against it as beyond the scope of the amendment that\\nhad been allowed. The court granted this motion, thus preserving\\nDitech's non-party status. The appellant's claims against Ditech\\nare apparently being litigated in a state-court action and need\\nnot concern us.\\n\\n\\n - 5 -\\n\\fappellant sought to hold Fannie Mae vicariously liable for Ditech's\\n\\nactions, any such liability was pretermitted by the Merrill\\n\\ndoctrine. Alternatively, Fannie Mae asserted that the appellant's\\n\\nclaims against it were barred by the economic-loss doctrine, a\\n\\ncommon-law principle recognized in New Hampshire. See, e.g., Wyle\\n\\nv. Lees, 33 A.3d 1187, 1190 (N.H. 2011); Plourde Sand & Gravel v.\\n\\nJGI E., Inc., 917 A.2d 1250, 1253 (N.H. 2007).\\n\\n During the course of two status conferences, the parties\\n\\nagreed that Fannie Mae's affirmative defenses were essentially\\n\\nlegal in nature and were potentially dispositive.2 In line with\\n\\nthis agreement, the court entered a bifurcated scheduling order,\\n\\nunder which it would address the merits of Fannie Mae's Merrill\\n\\ndoctrine and economic-loss arguments before dealing with the\\n\\nappellant's damages claims.\\n\\n Fannie Mae moved for summary judgment on the Merrill\\n\\ndoctrine and economic-loss issues. The appellant opposed the\\n\\nmotion. The district court granted summary judgment on the basis\\n\\nof the Merrill doctrine, holding that Fannie Mae was a federal\\n\\ninstrumentality protected from vicarious liability for the\\n\\nunauthorized acts of its agents. See Faiella v. Fed. Nat'l Mortg.\\n\\n\\n 2 This agreement was facilitated by Fannie Mae's stipulation\\nthat, for purposes of its summary judgment motion, it could be\\nassumed that Ditech acted as its agent at all relevant times. So,\\ntoo, the agreement was facilitated by the appellant's\\nacknowledgment that no discovery was needed in order to permit him\\nto address these issues.\\n\\n\\n - 6 -\\n\\fAss'n, No. 16-CV-088, 2017 WL 6375600, at *6-*8 (D.N.H. Dec. 13,\\n\\n2017). This timely appeal ensued.\\n\\nII. ANALYSIS\\n\\n We review the entry of summary judgment de novo. See\\n\\nIrobe v. U.S. Dep't of Agric., 890 F.3d 371, 377 (1st Cir. 2018).\\n\\n\\\"A district court may only grant summary judgment when the record,\\n\\nconstrued in the light most congenial to the nonmovant, presents\\n\\nno genuine issue as to any material fact and reflects the movant's\\n\\nentitlement to judgment as a matter of law.\\\" McKenney v. Mangino,\\n\\n873 F.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311\\n\\n(2018); see Fed. R. Civ. P. 56(a). When the motion is premised\\n\\nupon the absence of any genuine issue of material fact, the burden\\n\\nshifts to the nonmovant to identify, by means of materials of\\n\\nevidentiary quality, an issue of fact that is \\\"more than 'merely\\n\\ncolorable.'\\\" Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st\\n\\nCir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,\\n\\n249 (1986)).\\n\\n A.\\n\\n The appellant mounts a threshold argument. He says that\\n\\nthe grant of summary judgment was improvident because the record\\n\\nwas not sufficiently developed to permit resolution of the motion.\\n\\nThis argument, though, cannot be reconciled with the appellant's\\n\\nwords and actions in the court below.\\n\\n\\n\\n\\n - 7 -\\n\\f At a status conference on May 23, 2017, the appellant\\n\\nagreed that he would review Fannie Mae's motion for summary\\n\\njudgment (predicated on the Merrill doctrine and economic-loss\\n\\nissues) and notify the court if he thought that discovery was\\n\\nneeded to allow him to respond to the motion. During a follow-up\\n\\nconference on September 14, the appellant concurred in the district\\n\\ncourt's statement that \\\"the parties are now in agreement that\\n\\nthere's no discovery that needs to be conducted . . . to respond\\n\\nto the pending motion for summary judgment.\\\" By words and actions,\\n\\nthe appellant represented to the district court that the facts\\n\\nwere sufficiently developed to permit resolution of the summary\\n\\njudgment motion. A party ordinarily is bound by his\\n\\nrepresentations to a court, see United States v. Orsini, 907 F.3d\\n\\n115, 119-20 (1st Cir. 2018), and — having staked out his position\\n\\nin response to the district court's inquiry — the appellant cannot\\n\\nnow repudiate that position.\\n\\n If more were needed — and we do not think that it is —\\n\\nFederal Rule of Civil Procedure 56(d) provides a failsafe for this\\n\\nsort of situation. Under Rule 56(d), \\\"if a party opposing summary\\n\\njudgment shows that 'for specified reasons, [he] cannot present\\n\\nfacts essential to justify [his] opposition,' the district court\\n\\nmay grant appropriate relief.\\\" Nieves-Romero v. United States,\\n\\n715 F.3d 375, 381 (1st Cir. 2013) (alteration in original) (quoting\\n\\nFed. R. Civ. P. 56(d)). Rule 56(d), though, is designed to help\\n\\n\\n - 8 -\\n\\fthe vigilant, not those who slumber upon perceptible rights. The\\n\\nrule \\\"is not self-executing, but, rather, must be appropriately\\n\\ninvoked.\\\" Rivera-Almodóvar v. Instituto Socioeconómico\\n\\nComunitario, Inc., 730 F.3d 23, 28 (1st Cir. 2013). When a party\\n\\nconfronted with a summary judgment motion does not invoke Rule\\n\\n56(d) through an affidavit or some similarly authoritative\\n\\nproffer, he relinquishes any right to challenge the subsequent\\n\\nentry of summary judgment on the basis of insufficient factual\\n\\ndevelopment. See id. at 28-29; Jones v. Secord, 684 F.3d 1, 6\\n\\n(1st Cir. 2012). So it is here.\\n\\n For these reasons, we reject the appellant's threshold\\n\\nargument and proceed to review the district court's summary\\n\\njudgment ruling on the existing record.\\n\\n B.\\n\\n The pivotal question with respect to the district\\n\\ncourt's summary judgment ruling is whether Fannie Mae is a federal\\n\\ninstrumentality for purposes of the Merrill doctrine. We turn\\n\\nnext to that question.\\n\\n In Merrill, the respondents were farmers who had applied\\n\\nfor insurance from the Federal Crop Insurance Corporation (FCIC),\\n\\na government-owned enterprise established by Congress. See 332\\n\\nU.S. at 381-82. The respondents' application for crop insurance\\n\\nwas processed by a non-federal actor, the county Agricultural\\n\\nConservation Committee (the Committee), acting as an agent for the\\n\\n\\n - 9 -\\n\\fFCIC. See id. at 382. The FCIC eventually received and approved\\n\\nthe application. See id. But when the respondents tried to\\n\\ncollect on the insurance during a time of drought, it came to light\\n\\nthat the Committee, despite being informed by the respondents about\\n\\ncertain disqualifying facts, had not included those facts in the\\n\\napplication package that it forwarded to the FCIC. See id. Once\\n\\nmade aware of the disqualifying information, the FCIC refused to\\n\\nhonor the respondents' claims. See id.\\n\\n The respondents sued the FCIC to make good on the policy\\n\\nand recover the insurance proceeds. The case wended its way to\\n\\nthe Supreme Court, which upheld the FCIC's refusal to pay. See\\n\\nid. at 386. Although recovery likely could have been had against\\n\\na private insurer on similar facts, the Court held that the federal\\n\\ngovernment could not be bound in the same way. See id. at 383-\\n\\n84. The Court reasoned that \\\"anyone entering into an arrangement\\n\\nwith the Government takes the risk of having accurately ascertained\\n\\nthat he who purports to act for the Government stays within the\\n\\nbounds of his authority.\\\" Id. at 384. From this seed, a principle\\n\\nsprouted: the federal government cannot be bound by the\\n\\nunauthorized acts of its agents. See United States v. Ellis, 527\\n\\nF.3d 203, 207 (1st Cir. 2008); United States v. Vanhorn, 20 F.3d\\n\\n104, 112 n.19 (4th Cir. 1994); Penny v. Giuffrida, 897 F.2d 1543,\\n\\n1546 (10th Cir. 1990); Watkins v. U.S. Army, 875 F.2d 699, 707\\n\\n(9th Cir. 1989); United States v. Don B. Hart Equity Pure Tr., 818\\n\\n\\n - 10 -\\n\\fF.2d 1246, 1256 (5th Cir. 1987); United States v. Jones & Laughlin\\n\\nSteel Corp., 804 F.2d 348, 352 (6th Cir. 1986); Cinciarelli v.\\n\\nReagan, 729 F.2d 801, 807 (D.C. Cir. 1984); Matter of Chi., M.,\\n\\nSt. P. & P. R. Co., 673 F.2d 169, 174 (7th Cir. 1982); Doe v.\\n\\nCiviletti, 635 F.2d 88, 96 (2d Cir. 1980); Werner v. U.S. Dep't of\\n\\nInterior, 581 F.2d 168, 172 (8th Cir. 1978).3\\n\\n The rationale that undergirds the Merrill doctrine is\\n\\nboth salutary and straightforward. The doctrine \\\"expresses the\\n\\nduty of all courts to observe the conditions defined by Congress\\n\\nfor charging the public treasury.\\\" Merrill, 332 U.S. at 385.\\n\\n\\\"Because the federal government's 'fiscal operations are so\\n\\nvarious, and its agencies so numerous and scattered,' there is\\n\\nalways a risk that misinformed . . . representatives may err in\\n\\ninterpreting statutes and regulations, and even 'the utmost\\n\\nvigilance would not save the public from the most serious losses.'\\\"\\n\\nWagner v. Dir., Fed. Emerg. Mgmt. Agency, 847 F.2d 515, 519 (9th\\n\\nCir. 1988) (quoting United States v. Kirkpatrick, 22 U.S. (9\\n\\n\\n\\n\\n 3 In this circuit, the Merrill doctrine has been applied\\nprimarily when a party asserts that the federal government should\\nbe equitably estopped from raising the defense that the acts of\\nits agents were unauthorized. See, e.g., Dantran, Inc. v. U.S.\\nDep't of Labor, 171 F.3d 58, 66 (1st Cir. 1999); Phelps v. Fed.\\nEmerg. Mgmt. Agency, 785 F.2d 13, 17 (1st Cir. 1986). It is\\nabundantly clear, however, that the principle that the federal\\ngovernment cannot be held liable for its agents' unauthorized acts\\nis not limited to cases arising in such a posture.\\n\\n\\n - 11 -\\n\\fWheat.) 720, 735 (1824)). Thus, the Merrill doctrine is designed,\\n\\nin part, to ensure appropriate protection of the public fisc.\\n\\n We say \\\"in part\\\" because the doctrine also rests solidly\\n\\n\\\"upon considerations of sovereign immunity and constitutional\\n\\ngrounds — the potential for interference with the separation of\\n\\ngovernmental powers between the legislative and executive.\\\"\\n\\nPhelps v. Fed. Emerg. Mgmt. Agency, 785 F.2d 13, 17 (1st Cir.\\n\\n1986). These foundational considerations are reinforced by public\\n\\npolicy considerations. See Mendrala v. Crown Mortg. Co., 955 F.2d\\n\\n1132, 1140 (7th Cir. 1992). All of these concerns come into\\n\\nespecially bold relief where, as here, unauthorized acts by a\\n\\nprivate contractor could potentially bind the federal government.\\n\\nSee id. at 1141.\\n\\n Of course, the Merrill doctrine — by its very nature —\\n\\noperates only to safeguard federal instrumentalities.\\n\\nConsequently, it remains for us to determine whether Fannie Mae is\\n\\na federal instrumentality for purposes of the Merrill doctrine —\\n\\na task that no other federal appellate court has yet undertaken.\\n\\nCf. Molton, Allen & Williams, Inc. v. Harris, 613 F.2d 1176, 1179\\n\\n(D.C. Cir. 1980) (assuming but not holding that Merrill doctrine\\n\\napplies to Fannie Mae).\\n\\n We preface this inquiry by noting that the appellant has\\n\\nnot fully developed an argument that Fannie Mae is not a federal\\n\\ninstrumentality under the Merrill doctrine. Nevertheless, his\\n\\n\\n - 12 -\\n\\fmuddled briefing does suggest that because Fannie Mae is not a\\n\\nfederal instrumentality for the purposes of sovereign immunity or\\n\\nthe Federal Tort Claims Act, that status is precluded in the\\n\\nMerrill context. So, too, he argues that as a shareholder-owned\\n\\ncorporation, Fannie Mae should not receive the protections of the\\n\\nMerrill doctrine. These suggestions need not detain us.\\n\\n First, the fact that an entity is deemed not to be a\\n\\nfederal instrumentality for a particular purpose does not signify\\n\\nthat the entity should not be deemed to be a federal\\n\\ninstrumentality for some other purpose. See U.S. ex rel. Adams v.\\n\\nAurora Loan Servs., Inc., 813 F.3d 1259, 1261 (9th Cir. 2016); cf.\\n\\nMendrala, 955 F.2d at 1139 (noting that even if the Federal Home\\n\\nLoan Mortgage Corporation is not a federal instrumentality within\\n\\nthe purview of the Federal Tort Claims Act, that \\\"does not preclude\\n\\na determination that it is a federal instrumentality for other\\n\\npurposes\\\"). Second, the question of instrumentality status is not\\n\\ndetermined either by Fannie Mae's corporate form or by whether\\n\\nFannie Mae serves a \\\"proprietary\\\" (as opposed to a \\\"sovereign\\\")\\n\\nfunction. See Merrill, 332 U.S. at 384 (explaining that \\\"[t]he\\n\\nGovernment may carry on its operations through conventional\\n\\nexecutive agencies or through corporate forms especially created\\n\\nfor defined ends\\\"); see also REW Enters., Inc. v. Premier Bank,\\n\\nN.A., 49 F.3d 163, 167 (5th Cir. 1995) (warning against undue\\n\\nreliance on labels). We agree with the Eleventh Circuit that a\\n\\n\\n - 13 -\\n\\f\\\"federal instrumentality does not divest itself of the privileges\\n\\nof instrumentality status when it acts more like a privately owned\\n\\ninstitution than a federal agency.\\\" Smith v. Russellville Prod.\\n\\nCredit Ass'n, 777 F.2d 1544, 1550 (11th Cir. 1985).\\n\\n With these muddled arguments laid to rest, our inquiry\\n\\nhinges on whether Congress created Fannie Mae to serve an important\\n\\ngovernmental objective. See REW Enters., 49 F.3d at 167-68. In\\n\\nmaking this determination, we look primarily to congressional\\n\\nintent as embodied in Fannie Mae's governing statute. See McCauley\\n\\nv. Thygerson, 732 F.2d 978, 982 (D.C. Cir. 1984). We also take\\n\\ninto account whether preventing Fannie Mae from being bound by the\\n\\nunauthorized acts of its agents would run at cross-purposes with\\n\\nthis intent. See Mendrala, 955 F.2d at 1140-41; McCauley, 732\\n\\nF.2d at 982.\\n\\n Although the question before us is a question of first\\n\\nimpression at the federal appellate level, the road is well-marked.\\n\\nThe Seventh Circuit's decision in Mendrala is particularly\\n\\ninstructive. There, the court concluded that the Federal Home\\n\\nLoan Mortgage Corporation (Freddie Mac) is a federal\\n\\ninstrumentality for purposes of the Merrill doctrine. See 955\\n\\nF.2d at 1140. Looking to its governing statute, the court found\\n\\nthat Freddie Mac \\\"has a public statutory mission: to maintain the\\n\\nsecondary mortgage market and assist in meeting low- and moderate-\\n\\nincome housing goals.\\\" Id. at 1140-41 (citing Pub. L. No. 91-351,\\n\\n\\n - 14 -\\n\\f§ 301, as amended, Pub. L. No. 101-73, Title VII, § 731(a), 103\\n\\nStat. 429 (Aug. 9, 1989)). This mission, the court stated, would\\n\\nbe thwarted if Freddie Mac could be held \\\"responsible for the\\n\\nunauthorized actions\\\" of its agents. Id. at 1141. That the agents\\n\\nin question were employees of a private entity with whom Freddie\\n\\nMac contracted, the court explained, presented an even stronger\\n\\ncase for applying the Merrill doctrine. See id.\\n\\n Freddie Mac and Fannie Mae are siblings under the skin.\\n\\nCf. Jacobs v. Fed. Hous. Fin. Agency, 908 F.3d 884, 887 (3d Cir.\\n\\n2018) (\\\"In the wake of the Great Depression, Congress created\\n\\nFannie, and later Freddie, to support the home-mortgage market.\\\").\\n\\nLike Freddie Mac, Fannie Mae is a shareholder-owned company, which\\n\\noperates under a congressional charter. See id.; 2 U.S.C.\\n\\n§ 622(8). And like Freddie Mac, Fannie Mae serves an important\\n\\ngovernmental objective: \\\"to maintain the secondary mortgage\\n\\nmarket and assist in meeting low- and moderate-income housing\\n\\ngoals.\\\" Mendrala, 955 F.2d at 1140. Enabling Fannie Mae to be\\n\\nheld liable for the unauthorized acts of its agents, particularly\\n\\nthose who are employees of a private entity, would frustrate\\n\\nCongress's intent as expressed in the prescribed nature of Fannie\\n\\nMae's authority. Cf. id. at 1141 (reaching similar conclusion\\n\\nwith respect to Freddie Mac).\\n\\n That ends this aspect of the matter. We hold that Fannie\\n\\nMae is a federal instrumentality for purposes of the Merrill\\n\\n\\n - 15 -\\n\\fdoctrine and, thus, cannot be held liable for the unauthorized\\n\\nacts of its agents.4 Since the appellant's claims are predicated\\n\\non the theory that Fannie Mae should be held to account for the\\n\\nacts of Ditech employees — acts that the record does not show were\\n\\nactually authorized by Fannie Mae — the district court's entry of\\n\\nsummary judgment seems unimpugnable.\\n\\n C.\\n\\n The appellant tries to make an end run around this\\n\\nholding. He contends that language in Fannie Mae's governing\\n\\nstatute allowing it \\\"to sue and be sued,\\\" 17 U.S.C. § 1723a(a),\\n\\nprecludes application of the Merrill doctrine.\\n\\n This contention is wrong on its face. The dispositive\\n\\nquestion is not whether a federal instrumentality can sue and be\\n\\nsued as a general matter but, rather, whether the federal\\n\\ninstrumentality can be sued for the unauthorized acts of its\\n\\nagents. Cf. Edwards v. Tenn. Valley Auth., 255 F.3d 318, 322-25\\n\\n(6th Cir. 2001) (concluding that agency action fell within\\n\\nexception to tort liability under its \\\"sue and be sued\\\" provision).\\n\\nAs we already have explained, Fannie Mae cannot.\\n\\n\\n\\n\\n 4\\n This holding echoes a chorus of decisions by district\\ncourts. See, e.g., Gray v. Seterus, Inc., 233 F. Supp. 3d 865,\\n869 (D. Or. 2017); Cannon v. Wells Fargo Bank N.A., 917 F. Supp.\\n2d 1025, 1035 (N.D. Cal. 2013); Hinton v. Fed. Nat. Mortg. Ass'n,\\n945 F. Supp. 1052, 1060 (S.D. Tex. 1996), aff'd, 137 F.3d 1350\\n(5th Cir. 1998).\\n\\n\\n - 16 -\\n\\f To cinch the matter, the statute governing the FCIC (the\\n\\nfederal instrumentality involved in Merrill) contains precisely\\n\\nthe same \\\"sue and be sued\\\" language upon which the appellant\\n\\nmistakenly relies. See 7 U.S.C. § 1506(d). What is sauce for the\\n\\nMerrill goose is perforce sauce for the appellant's gander.\\n\\n To say more on this point would be supererogatory. There\\n\\nis simply no hint of tension between the operation of Fannie Mae's\\n\\n\\\"sue and be sued\\\" provision and our holding that Fannie Mae is a\\n\\nfederal instrumentality for purposes of the Merrill doctrine.\\n\\n D.\\n\\n Caught in the toils of the Merrill doctrine, the\\n\\nappellant spies what he perceives as an escape route. Even if the\\n\\nMerrill doctrine applies generally to Fannie Mae, his thesis runs,\\n\\nthe doctrine is limited to contract claims and, therefore, does\\n\\nnot defenestrate his tort-based claims. This route is a dead end.\\n\\n The appellant does not offer a shred of authority\\n\\nsupporting his self-serving attempt to truncate the reach of the\\n\\nMerrill doctrine. The case law, though sparse, makes pellucid\\n\\nthat the Merrill doctrine has regularly been applied to foreclose\\n\\nclaims sounding in tort. See, e.g., Gray v. Seterus, Inc., 233 F.\\n\\nSupp. 3d 865, 869 (D. Or. 2017) (collecting cases \\\"which have found\\n\\nthat the Merrill doctrine applies in both contract and statutory\\n\\ntort based claims\\\"); Cannon v. Wells Fargo Bank N.A., 917 F. Supp.\\n\\n2d 1025, 1034 (N.D. Cal. 2013) (explaining that \\\"the Merrill\\n\\n\\n - 17 -\\n\\fdoctrine has been applied to both contract and tort-based claims\\\").\\n\\nNor is there any discernable justification for adopting a\\n\\ncategorical rule that would sideline the Merrill doctrine in\\n\\nactions sounding in tort. After all, the public fisc is at risk\\n\\nregardless of the form of action; and the same separation of\\n\\npowers, sovereign immunity, and public policy concerns that drive\\n\\nthe Merrill doctrine in the contract context are equally implicated\\n\\nin the tort context.\\n\\n The claims that the appellant presses in the case at\\n\\nhand illustrate the fallacy of attempting to draw a blanket\\n\\ndistinction between contract and tort claims with respect to the\\n\\nMerrill doctrine. Even though his claims sound in tort, they are\\n\\ninextricably tied to duties derived from the appellant's\\n\\ncontractual relationship with Fannie Mae. Specifically, the\\n\\nappellant's claims are based on representations allegedly made by\\n\\nDitech personnel during the term of the mortgage and in relation\\n\\nto the mortgage. Seen in this light, construing the Merrill\\n\\ndoctrine to preclude contract claims while allowing parallel\\n\\ncontract-based tort claims would be both incongruous and\\n\\nmischievous — an open invitation to gamesmanship. We hold,\\n\\ntherefore, that even though the appellant's claims sound in tort,\\n\\nthe Merrill doctrine bars his suit.\\n\\n\\n\\n\\n - 18 -\\n\\f E.\\n\\n The appellant has one last shot in his sling. Even\\n\\nassuming that the Merrill doctrine shields Fannie Mae from\\n\\nvicarious liability for the unauthorized acts of its agents, see\\n\\ntext supra, the appellant notes that the doctrine has inherent\\n\\nlimitations. One prominent limitation is that the doctrine does\\n\\nnot bar suits against a federal instrumentality when an agent of\\n\\nthat instrumentality acts with \\\"[a]ctual authority . . . conferred\\n\\neither expressly or by necessary implication.\\\" United States v.\\n\\nFlemmi, 225 F.3d 78, 85 (1st Cir. 2000).\\n\\n With this toehold, the appellant labors to rewrite the\\n\\nMerrill doctrine. He maintains that \\\"regardless of authority,\\\"\\n\\nthe government must be held responsible for the torts of its\\n\\nagents. This is simply too much of a stretch: while an agent\\n\\nordinarily may bind a principal when he acts on the basis of his\\n\\napparent authority, see Restatement (Second) of Agency § 8 (1958),\\n\\napparent authority is \\\"not available to bind the federal\\n\\nsovereign,\\\" Flemmi, 225 F.3d at 85. It follows that the federal\\n\\ngovernment can be held vicariously liable only when it has granted\\n\\nactual authority to its allegedly culpable agents. See id. Here,\\n\\nthe record is devoid of anything that might suggest that Ditech\\n\\npersonnel were granted actual authority by Fannie Mae to make the\\n\\nallegedly inaccurate representations that the appellant attributes\\n\\nto them.\\n\\n\\n - 19 -\\n\\f There is, of course, another potentially pertinent\\n\\nlimitation: the federal government cannot claim the prophylaxis\\n\\nof the Merrill doctrine in the face of its own affirmative\\n\\nmisconduct. See REW Enters., 49 F.3d at 169. \\\"There is no single\\n\\ntest for detecting the presence of affirmative misconduct; each\\n\\ncase must be decided on its own particular facts and\\n\\ncircumstances.\\\" Watkins, 875 F.2d at 707. The caselaw suggests,\\n\\nhowever, that a finding of affirmative misconduct requires either\\n\\nan affirmative misrepresentation of a material fact by the\\n\\ngovernment or some affirmative concealment of such a fact by the\\n\\ngovernment. See id. And in any event, affirmative misconduct\\n\\n\\\"requires something more than simple negligence\\\" on the part of\\n\\nthe federal instrumentality. Dantran Inc. v. U.S. Dep't of Labor,\\n\\n171 F.3d 58, 67 (1st Cir. 1999).\\n\\n In this case, Fannie Mae has asserted the absence of any\\n\\ngenuine issue of material fact with respect to affirmative\\n\\nmisconduct. Thus, the appellant, as the party opposing summary\\n\\njudgment, had the burden of establishing, through materials of\\n\\nevidentiary quality, facts sufficient to support a showing of\\n\\naffirmative misconduct. See Flovac, 817 F.3d at 853. But the\\n\\ndistrict court found \\\"no evidence in the record that Fannie Mae\\n\\nauthorized or affirmatively encouraged Ditech to improperly\\n\\nservice\\\" the appellant's loan. Faiella, 2017 WL 6375600, at *7.\\n\\nRelatedly, the court found nothing in the record \\\"that would\\n\\n\\n - 20 -\\n\\fsupport an inference that Ditech's alleged misrepresentations were\\n\\nthe result of affirmative misconduct as opposed to carelessness\\\"\\n\\non Fannie Mae's part. Id.\\n\\n Before us, the appellant does not challenge these\\n\\nfindings.5 The absence of such a challenge means that the appellant\\n\\nhas waived any right to assert that Fannie Mae committed\\n\\naffirmative misconduct. See DeCaro v. Hasbro, Inc., 580 F.3d 55,\\n\\n64 (1st Cir. 2009) (\\\"It is common ground that contentions not\\n\\nadvanced in an appellant's opening brief are deemed waived.\\\");\\n\\nSandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)\\n\\n(similar).\\n\\nIII. CONCLUSION\\n\\n We need go no further. For the reasons elucidated above,\\n\\nthe judgment of the district court is\\n\\n\\n\\nAffirmed.\\n\\n\\n\\n\\n 5To be sure, the appellant reiterates his argument that\\nfurther discovery should be allowed as to the existence vel non of\\naffirmative misconduct. We already have explained why he is not\\nentitled to further discovery, see supra Part II(A), and beating\\nthis dead horse would serve no useful purpose.\\n\\n\\n - 21 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2387,"cells":{"id":{"kind":"number","value":4634777,"string":"4,634,777"},"name":{"kind":"string","value":"Harold SHURTLEFF, and Camp Constitution, a Public Charitable Trust, Plaintiffs, Appellants, v. CITY OF BOSTON, and Gregory T. Rooney, in His Official Capacity as Commissioner of the City of Boston Property Management Division, Defendants, Appellees."},"name_abbreviation":{"kind":"string","value":"Shurtleff v. City of Boston"},"decision_date":{"kind":"string","value":"2019-06-27"},"docket_number":{"kind":"string","value":"18-1898P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Selya, Lynch\", \"parties\": \"\", \"opinions\": [{\"author\": \"TORRUELLA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1898\\n\\n HAROLD SHURTLEFF, and CAMP CONSTITUTION,\\n a public charitable trust,\\n\\n Plaintiffs, Appellants,\\n\\n v.\\n\\n CITY OF BOSTON, and GREGORY T. ROONEY, in his official\\n capacity as Commissioner of the City of Boston\\n Property Management Division,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Denise J. Casper, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Selya, and Lynch,\\n Circuit Judges.\\n\\n\\n Mathew D. Staver, with whom Roger K. Gannam, Horatio G. Mihet,\\nDaniel J. Schmid, and Liberty Counsel were on brief, for\\nappellants.\\n John Eidsmoe, Foundation for Moral Law, on brief for\\nFoundation for Moral Law, amicus curiae.\\n Daniel M. Ortner, Deborah J. La Fetra, and Pacific Legal\\nFoundation, on brief for Pacific Legal Foundation, amicus curiae.\\n Robert S. Arcangeli, Assistant Corporation Counsel, City of\\nBoston Law Department, with whom Eugene L. O'Flaherty, Corporation\\nCounsel, was on brief, for appellees.\\n\\f Richard B. Katskee, Carmen N. Green, Patrick Grubel,\\nAmericans United for Separation of Church and State, Jeffrey I.\\nPasek, Cozen O'Connor, Steven M. Freeman, David L. Barkey, Amy E.\\nFeinman, Anti-Defamation League, Amrith Kaur, Cindy Nesbit and\\nSikh Coalition, on brief for Religious and Civil-Rights\\nOrganizations, amici curiae.\\n\\n\\n\\n June 27, 2019\\n\\n\\n\\n\\n -2-\\n\\f TORRUELLA, Circuit Judge. This appeal arises from the\\n\\ndenial of a preliminary injunction that would have required the\\n\\nCity of Boston (\\\"City\\\") to temporarily raise a \\\"Christian flag\\\" on\\n\\na government-owned flagpole in front of its City Hall. Plaintiff-\\n\\nappellant Harold Shurtleff is the director of Camp Constitution,\\n\\na volunteer association (and also a plaintiff-appellant here)\\n\\nestablished in 2009 to \\\"enhance understanding of the country's\\n\\nJudeo-Christian moral heritage, the American heritage of courage\\n\\nand ingenuity, [and] the genius of the United States Constitution,\\\"\\n\\namong other things. To commemorate Constitution and Citizenship\\n\\nDay in September 2017, Shurtleff, in his role as director of Camp\\n\\nConstitution, organized an event to be held at the plaza in front\\n\\nof City Hall. Shurtleff alleges he intended this event to be a\\n\\ncelebration of the Christian community's civic and social\\n\\ncontributions to the City and the Commonwealth of Massachusetts,\\n\\nas well as of Christian support for religious tolerance, the rule\\n\\nof law, and the United States Constitution. Shurtleff sought a\\n\\npermit from the City to raise a Christian flag1 on one of the City\\n\\nHall Plaza flagpoles during the proposed celebration. That flag\\n\\nwould have been raised next to poles flying the United States and\\n\\n\\n1 The parties refer to this flag as \\\"the Christian flag.\\\" We use\\nthe term \\\"a Christian flag\\\" throughout. In doing so, we do not\\nsuggest that all Christian denominations accept that flag as the\\nflag of Christianity. There is no evidence of that before us.\\n\\n\\n -3-\\n\\fMassachusetts flags and in place of the City of Boston flag,\\n\\nnormally flown there.\\n\\n The City denied Shurtleff's flag-raising request, but\\n\\notherwise allowed him and Camp Constitution to host their event at\\n\\nCity Hall Plaza. Shurtleff and Camp Constitution filed suit\\n\\nalmost a year later, raising Free Speech, Establishment Clause,\\n\\nand Equal Protection claims, and seeking a preliminary injunction\\n\\nto prevent the City from denying them a permit to raise the flag.\\n\\nThe district court denied the injunction and we now affirm.\\n\\n I.\\n\\n City Hall Plaza is at the entrance of Boston's City Hall.\\n\\nA trio of eighty-three-foot tall poles that the City owns and\\n\\ncontrols stands in the Plaza. Two of the poles usually fly the\\n\\nUnited States and Massachusetts flags. At issue here is the third\\n\\npole, which displays the City's flag except when temporarily\\n\\nreplaced by another flag upon the request of a third-party person\\n\\nor organization. Requests to replace the City's flag with another\\n\\nflag are often accompanied by a proposed third-party event to take\\n\\nplace at a City-owned venue, such as the Plaza. In the past, the\\n\\npole in dispute has displayed country flags (according to the\\n\\ncomplaint, those of Albania, Brazil, Cuba, Ethiopia, Italy,\\n\\nMexico, Panama, the People's Republic of China, Peru, Portugal,\\n\\nand also that of the territory of Puerto Rico) as well as the flag\\n\\n\\n -4-\\n\\fof the Chinese Progressive Association, the LGBT rainbow flag, the\\n\\ntransgender rights flag, the Juneteenth flag commemorating the end\\n\\nof slavery, and that of the Bunker Hill Association.\\n\\n Some of these third-party flags contain what Shurtleff\\n\\nalleges is religious symbolism. For instance, the Portuguese flag\\n\\ncontains \\\"dots inside the blue shields represent[ing] the five\\n\\nwounds of Christ when crucified\\\" and \\\"thirty dots that represents\\n\\n[sic] the coins Judas received for having betrayed Christ.\\\" The\\n\\nBunker Hill Flag contains a red St. George's cross. And the City\\n\\nflag itself includes the Boston seal's Latin inscription, which\\n\\ntranslates to \\\"God be with us as he was with our fathers.\\\" But\\n\\nnothing in the record indicates that the City has ever allowed the\\n\\nflag of any religion to be raised on the flagpole at issue.2\\n\\n Interested parties must apply to the City for a permit\\n\\nbefore they can hold an event and/or raise a flag at the Plaza.\\n\\nThe City has published guidelines for permit applicants on its\\n\\nwebsite. According to the guidelines, permits may be denied for\\n\\nseveral reasons, including that the applicant plans to host illegal\\n\\nactivities on City property or if the proposed event poses a danger\\n\\nto public health and safety. Applications may also be denied if\\n\\n\\n2 Shurtleff avers that, in 2012, he applied for and received a\\npermit to display a flag on the pole at issue here. He does not\\nspecify, however, the type of flag that the City allowed him to\\nraise.\\n\\n\\n -5-\\n\\fthey do not comply with other relevant permit requirements,\\n\\nordinances, or regulations. The Office of Property and\\n\\nConstruction Management leads the application review process and\\n\\nis charged with ensuring that all applications meet City\\n\\nguidelines. And the Commissioner of Property Management himself\\n\\nreviews flag-raising applications for the City Hall Plaza poles to\\n\\nensure that they are \\\"consistent with the City's message, policies,\\n\\nand practices.\\\" There is no written policy regarding which flags\\n\\nmay be raised on the City Hall poles.\\n\\n On July 28, 2017, Shurtleff emailed the City requesting\\n\\na permit to \\\"raise the Christian Flag on City Hall Plaza.\\\"\\n\\nShurtleff proposed several dates in September 2017 for the flag\\n\\nraising and explained that Camp Constitution would sponsor the\\n\\nevent, which was also to include \\\"short speeches by some local\\n\\nclergy focusing on Boston's history.\\\" Shurtleff's email to the\\n\\nCity also included a photo of a Christian flag to be raised, which\\n\\nhas a white field and a red Latin cross inside a blue canton. On\\n\\nSeptember 5, 2017, Shurtleff received an email response from the\\n\\nCity denying his request to raise the flag. The City's response\\n\\ndid not offer a reason for the denial.\\n\\n Unsatisfied, Shurtleff emailed the City the next day to\\n\\ninquire about the \\\"official reason\\\" for denying his application.\\n\\nTwo days later, on September 8, Shurtleff received an email from\\n\\n\\n -6-\\n\\fGregory T. Rooney, the City's Commissioner of Property Management,\\n\\nexplaining that his request was denied because \\\"[t]he City of\\n\\nBoston maintains a policy and practice of respectfully refraining\\n\\nfrom flying non-secular flags on the City Hall flagpoles.\\\"\\n\\nRooney's email explained that such a \\\"policy and practice is\\n\\nconsistent with [both] well-established First Amendment\\n\\njurisprudence . . . [and] with [the] City's legal authority to\\n\\nchoose how a limited government resource, like the City Hall\\n\\nflagpoles, is used.\\\" Before signing off, Rooney informed\\n\\nShurtleff that the \\\"City would be willing to consider a request to\\n\\nfly a non-religious flag, should your organization elect to offer\\n\\none.\\\" Shurtleff's plan to host an event at City Hall Plaza,\\n\\nhowever, was allowed to go forward.\\n\\n Around September 13, 2017, Shurtleff submitted a renewed\\n\\nevent and flag-raising application to the City, asking to use City\\n\\nHall Plaza and its flagpoles for the \\\"Camp Constitution Christian\\n\\nFlag Raising.\\\" Shurtleff's event description explained that the\\n\\n\\\"Christian flag is an important symbol of our country's Judeo-\\n\\nChristian heritage\\\" and that the aim of the flag raising was to\\n\\ncelebrate \\\"our Nation's heritage and the civic accomplishments and\\n\\nsocial contributions of the Christian community to the\\n\\nCommonwealth of Massachusetts, religious tolerance, the Rule of\\n\\nLaw, and the U.S. Constitution.\\\" On September 14, Shurtleff's\\n\\n\\n -7-\\n\\fcounsel sent a letter to Boston Mayor Martin Walsh -- with copy to\\n\\nother City officials -- that enclosed Shurtleff's September 13\\n\\napplication to celebrate a \\\"Christian Flag Raising.\\\" This letter\\n\\nrequested that the City approve Shurtleff's flag-raising\\n\\napplication on or before September 27, 2017. The City neither\\n\\nissued a permit nor replied in reaction to Shurtleff's September 13\\n\\nand 27 communications. Since then, Shurtleff has not applied to\\n\\nhold any events on City grounds, with or without a flag.\\n\\n Shurtleff and Camp Constitution filed suit on July 6,\\n\\n2018, seeking injunctive relief, declaratory relief, and damages\\n\\nagainst the City and Rooney in his official capacity as\\n\\nCommissioner of the City's Property Management Division.\\n\\nAppellants aver, inter alia, that the City \\\"violated [their] First\\n\\nAmendment right to Freedom of Speech by preventing [them] from\\n\\ndisplaying the Christian flag as part of a celebration of the\\n\\nChristian community and America's Judeo-Christian heritage to be\\n\\nheld at [the City's] designated public fora at City Hall Plaza and\\n\\n[its] flagpoles.\\\" Shurtleff and Camp Constitution moved for a\\n\\npreliminary injunction on July 9, 2018. The district court heard\\n\\nargument on August 9, 2018, and issued an opinion denying their\\n\\nrequest on August 29, 2018. Shurtleff v. City of Bos., 337 F.\\n\\nSupp. 3d 66, 79 (D. Mass. 2018). Among other things, the court\\n\\nheld that the preliminary injunction could not proceed because the\\n\\n\\n -8-\\n\\f\\\"City's selection and presentation of flags on the City flagpole\\n\\nconstitute government speech,\\\" id. at 73, and government speech\\n\\nescapes scrutiny under the Free Speech Clause.\\n\\n II.\\n\\n Before it grants a preliminary injunction, a district\\n\\ncourt is required to consider (1) the movant's likelihood of\\n\\nsuccess on the merits; (2) the likelihood of the movant suffering\\n\\nirreparable harm; (3) the balance of equities; and (4) whether\\n\\ngranting the injunction is in the public interest. Díaz-\\n\\nCarrasquillo v. García-Padilla, 750 F.3d 7, 10 (1st Cir. 2014).\\n\\nAnd when faced with an interlocutory appeal, as we are in this\\n\\ncase, we review the district court's decision to deny a preliminary\\n\\ninjunction for abuse of discretion but review its findings of fact\\n\\nfor clear error and its conclusions of law de novo. Am. Freedom\\n\\nDef. Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 578 (1st\\n\\nCir. 2015). Because Shurtleff and Camp Constitution did not\\n\\n\\\"'establish a strong likelihood that they will ultimately prevail'\\n\\non the merits of their First Amendment claim[s],\\\" we affirm the\\n\\ndistrict court's denial of their request for a preliminary\\n\\ninjunction.3 Id.(quoting Sindicato Puertorriqueño de Trabajadores,\\n\\nSEIU Local 1996 v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012)).\\n\\n\\n3 Since the \\\"sine qua non of th[e] four-part inquiry is likelihood\\nof success on the merits,\\\" New Comm Wireless Servs., Inc. v.\\nSprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002), and appellants\\n\\n -9-\\n\\f III.\\n\\n The centerpiece of Shurtleff's argument on appeal is\\n\\nthat the City's choice of which flags to raise temporarily in place\\n\\nof the usual Boston flag on the City Hall Plaza flagpole at issue\\n\\ndoes not constitute government speech and that the flagpole is\\n\\ninstead a designated public forum. We tackle first his challenge\\n\\nto the district court's finding of government speech.\\n\\n A.\\n\\n Shurtleff argues that neither Walker v. Texas Division,\\n\\nSons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), nor\\n\\nPleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) -- the\\n\\npair of recent cases the district court relied on to conclude that\\n\\nthe City's choice of which flags to fly on the flagpole at issue\\n\\nis government speech -- supports a government speech label for a\\n\\nthird-party group's temporary display of a flag owned by the group.\\n\\nShurtleff explains that Summum resolved that the placement of\\n\\n\\\"permanent\\\" monuments in a public park was a form of government\\n\\nspeech, which is inapposite to \\\"temporarily\\\" raising flags on a\\n\\ncity-owned pole. Further, Shurtleff argues that Walker reaffirmed\\n\\nthe relevance of permanence for finding government speech.\\n\\n\\nfailed to meet that burden, we do not address the final three\\nfactors of the inquiry for preliminary injunctive relief. See Am.\\nFreedom Def. Initiative, 781 F.3d at 578 n.4 (following this\\napproach).\\n\\n\\n -10-\\n\\fShurtleff also maintains that the government \\\"ownership\\\" and\\n\\n\\\"control\\\" elements that the Court identified in Walker and Summum\\n\\nas creating government speech are not present for occasionally\\n\\ndisplayed third-party flags on the City Hall flagpole. We\\n\\ndisagree with each of Shurtleff's points, but before responding we\\n\\nfind it helpful to revisit in some detail the contours that the\\n\\nSupreme Court has established for the government speech doctrine.\\n\\n In Summum, the Court considered \\\"whether the Free Speech\\n\\nClause of the First Amendment entitles a private group to insist\\n\\nthat a municipality permit it to place a permanent monument in a\\n\\ncity park in which other donated monuments were previously\\n\\nerected.\\\" 555 U.S. at 464. The Free Speech Clause did not mandate\\n\\nthat result, the Court concluded, because \\\"the display of a\\n\\npermanent monument in a public park is not a form of expression to\\n\\nwhich forum analysis applies\\\" since it is \\\"best viewed as a form\\n\\nof government speech.\\\" Id. The Court reached that conclusion\\n\\nafter making three observations. First, that \\\"[g]overnments have\\n\\nlong used monuments to speak to the public.\\\" Id. at 470. Second,\\n\\nthat \\\"[p]ublic parks are often closely identified in the public\\n\\nmind with the government unit that owns the land,\\\" which is the\\n\\nreason why \\\"there is little chance that observers will fail to\\n\\nappreciate the identity of the speaker\\\" as the government when\\n\\nthey see a monument at a public park. Id. at 471-72. And third,\\n\\n\\n -11-\\n\\fthat the government \\\"has 'effectively controlled' the messages\\n\\nsent by the monuments in the Park by exercising 'final approval\\n\\nauthority' over their selection.\\\" Id. at 473 (citing Johanns v.\\n\\nLivestock Marketing Assn., 544 U.S. 550, 560-61 (2005)).\\n\\n The Court reaffirmed the Summum framework six years\\n\\nlater in Walker. That case originated after a nonprofit\\n\\norganization applied to the Texas Department of Motor Vehicles\\n\\nBoard for a specialty license plate featuring the Confederate flag.\\n\\nThe Board rejected the application, 135 S. Ct. at 2244, and members\\n\\nof the nonprofit filed suit alleging that the rejection violated\\n\\ntheir free speech rights. Not so, said the Court, holding that\\n\\n\\\"Texas's specialty license plate designs constitute government\\n\\nspeech,\\\" for which the Board was entitled to refuse issuing license\\n\\nplates that feature the Confederate flag. Id. at 2253. The Court\\n\\npinpointed three factors as relevant to identifying government\\n\\nspeech in light of Summum: (1) whether the government has\\n\\ntraditionally used the message or conduct at issue to speak to the\\n\\npublic; (2) whether persons would interpret the speech as conveying\\n\\nsome message on the government's behalf; and (3) whether the\\n\\ngovernment maintains control over the selection of the message.\\n\\nSee id. at 2247. Applying these factors, the Court concluded that\\n\\nthe license plates are government speech because (1) \\\"they long\\n\\nhave communicated messages from the States,\\\" id. at 2248; (2) they\\n\\n\\n -12-\\n\\f\\\"are often closely identified in the public mind with the [State],\\\"\\n\\nid. (citing Summum, 555 U.S. at 472); and (3) \\\"Texas maintains\\n\\ndirect control over the messages conveyed on its specialty plates,\\\"\\n\\nid. at 2249. The Court later remarked that Walker \\\"likely marks\\n\\nthe outer bounds of the government-speech doctrine.\\\" Matal v.\\n\\nTam, 137 S. Ct. 1744, 1760 (2017).\\n\\n The Summum/Walker three-part test controls here and each\\n\\nof its factors strongly favors a finding that the City engages in\\n\\ngovernment speech when it decides which flags to display in place\\n\\nof the City flag on the City Hall flagpole. This case lies well\\n\\nwithin the established bounds of the government speech doctrine.\\n\\n First, the government has long used flags to communicate\\n\\nmessages. See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319\\n\\nU.S. 624, 632 (1943) (\\\"The use of an emblem or flag to symbolize\\n\\nsome system, idea, institution, or personality, is a short cut\\n\\nfrom mind to mind. Causes and nations, political parties, lodges\\n\\nand ecclesiastical groups seek to knit the loyalty of their\\n\\nfollowings to a flag or banner . . . .\\\"); Griffin v. Sec'y of\\n\\nVeterans Affairs, 288 F.3d 1309, 1324 (Fed. Cir. 2002) (\\\"We have\\n\\nno doubt that the government engages in speech when it flies its\\n\\nown flags over a national cemetery, and that its choice of which\\n\\nflags to fly may favor one viewpoint over another.\\\"). For\\n\\ninstance, \\\"Congress has provided that the flag be flown at half-\\n\\n\\n -13-\\n\\fstaff upon the death of the President, Vice President, and other\\n\\ngovernment officials 'as a mark of respect to their memory.'\\\"\\n\\nTexas v. Johnson, 491 U.S. 397, 427 (1989) (Rehnquist, C.J.,\\n\\ndissenting) (quoting 36 U.S.C. § 175(m) (current version at 4\\n\\nU.S.C. § 7(m))). And when a visiting dignitary comes to\\n\\nWashington for a state or official visit, Blair House (the\\n\\nPresident's guest house) flies the flag of the dignitary's country.\\n\\nMary Mel French, United States Protocol 298 (2010).4\\n\\n\\n\\n\\n4 Of course, flags themselves communicate a message. In a 1944\\nPresidential Proclamation, President Franklin Roosevelt stated,\\n\\\"The flag of the United States of America is universally\\nrepresentative of the principles of justice, liberty, and\\ndemocracy enjoyed by the people of the United States.\\\"\\nProclamation No. 2605, 9 Fed. Reg. 1957 (Feb. 22, 1944). Congress\\nhas provided that the American \\\"flag represents a living country\\nand is itself considered a living thing.\\\" 4 U.S.C. § 8(j). When\\nUnited States Marines reached the top of Mount Suribachi at Iwo\\nJima, \\\"they raised a piece of pipe upright and from one end\\nfluttered a flag.\\\" Johnson, 491 U.S. at 425-26 (Rehnquist, C.J.,\\ndissenting). And troops marked their successful landing at Inchon\\nduring the Korean war with the raising of an American flag. Id.\\nat 426.\\n\\n Shurtleff's proposed flag is no different: it was designed to\\nincorporate certain Christian symbolism, including the Latin\\ncross. See Trunk v. City of San Diego, 629 F.3d 1099, 1110 (9th\\nCir. 2011) (recognizing the Latin cross as \\\"the preeminent symbol\\nof Christianity\\\"); cf. Barnette, 319 U.S. at 632 (\\\"[T]he church\\nspeaks through the Cross, the Crucifix, the altar and shrine, and\\nclerical raiment.\\\"); Salazar v. Buono, 559 U.S. 700, 747 (2010)\\n(Stevens, J., dissenting) (\\\"We have recognized the significance of\\nthe Latin cross as a sectarian symbol, and no participant in this\\nlitigation denies that the cross bears that social meaning.\\\").\\n\\n\\n -14-\\n\\f The City partakes of similar practices and has\\n\\nhistorically used the City Hall Plaza pole at issue here to convey\\n\\na message when the City flag is replaced with another flag. For\\n\\ninstance, the City flew the flag of Portugal on that pole to\\n\\nrecognize \\\"the Portuguese community's presence and importance in\\n\\nthe State of Massachusetts.\\\" The City also sometimes displays its\\n\\nmunicipal flag to signify that its mayor is present at a given\\n\\nevent. It therefore follows that the City recognizes flag flying\\n\\nas a symbolic act and that it uses flags -- in particular those\\n\\nraised on the City Hall Plaza pole -- to speak to the public.\\n\\n Next, we examine whether an observer would identify the\\n\\nCity as the \\\"speaker\\\" when she sees a third-party flag, like a\\n\\nChristian flag, raised in front of City Hall and flying alongside\\n\\nthe United States and Massachusetts flags. See Walker, 135 S. Ct.\\n\\nat 2249; Summum, 555 U.S. at 471.5 We have little doubt that the\\n\\nthird-party flag's message would be attributed to the City.\\n\\n\\n\\n\\n5 In his Summum concurrence, Justice Souter proposed using a\\n\\\"reasonable person\\\" test to analyze the attribution prong. See\\nSummum, 555 U.S. at 487 (Souter, J., concurring) (\\\"[T]o say when\\nspeech is governmental, the best approach that occurs to me is to\\nask whether a reasonable and fully informed observer would\\nunderstand the expression to be government speech, as distinct\\nfrom private speech the government chooses to oblige by allowing\\nthe monument to be placed on public land.\\\"). If the Court adopts\\nthis standard in a future case, it would be easily met here.\\n\\n\\n -15-\\n\\f If the observer arrived in time, she could well see a\\n\\nCity employee lower the Boston flag and replace it with a third\\n\\nparty's flag. The replacement flag would fly eighty-three feet\\n\\ninto the sky only steps away from the entrance to Boston's seat of\\n\\ngovernment, City Hall. That height would make the flag visible\\n\\nfrom far away, even from places that have no view of what is\\n\\nhappening on the plaza below. And the third-party flag would keep\\n\\ncompany with the United States flag and the flag of the\\n\\nCommonwealth of Massachusetts, two powerful governmental symbols.\\n\\n\\\"In this context, there is little chance that observers will fail\\n\\nto appreciate the identity of the speaker\\\" as being the City.\\n\\nSummum, 555 U.S. at 471.\\n\\n Lastly, we assess if the City maintains control over the\\n\\nselection of the messages it conveys on its City Hall flagpole.\\n\\nSee Walker, 135 S. Ct. at 2247. Shurtleff argues that, to find\\n\\ngovernment speech, Summum and Walker require the government to\\n\\ntake physical control over previously private expression, control\\n\\nevery aspect of its design and maintenance, and require\\n\\nrelinquishment of private ownership rights. We reject the\\n\\nargument as a misreading of those cases. See Sutliffe v. Epping\\n\\nSch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (finding that links\\n\\nplaced on a government website were government speech and\\n\\nemphasizing that the town \\\"controlled the content of [the] message\\n\\n\\n -16-\\n\\fby exercising final approval authority over the [] selection of\\n\\nthe hyperlinks on the website\\\"); cf. Ridley v. Mass. Bay Transp.\\n\\nAuth., 390 F.3d 65, 82 (1st Cir. 2004) (rejecting the plaintiffs'\\n\\nargument that the MBTA had created a public forum in part because\\n\\n\\\"[t]he MBTA's policy clearly evidenced an intent to maintain\\n\\ncontrol over the forum\\\").\\n\\n The record is clear that the City owns the flagpole at\\n\\nissue and that it controls which third-party flags are raised in\\n\\nplace of the City flag. Interested persons and organizations must\\n\\napply to the City for a permit before they can raise a flag on\\n\\nthis flagpole. The City's Office of Property and Construction\\n\\nManagement then reviews all applications to ensure that they comply\\n\\nwith governing guidelines, and the Commissioner of Property\\n\\nManagement himself screens flag-raising requests for the pole at\\n\\nissue to ensure that those requests are \\\"consistent with the City's\\n\\nmessage, policies, and practices.\\\" And unlike many other public\\n\\nspaces controlled by a permitting process, for access to which the\\n\\nCity might grant thousands of applications a year, the flagpole at\\n\\nissue is only rarely occupied by a third-party flag. Appellant's\\n\\ncomplaint lists only fifteen instances, over a period of years, in\\n\\nwhich the City has granted a third party's flag-flying request.\\n\\nThat rarity highlights the City's tight control over the flagpole\\n\\nin question and that it engages in symbolic speech as to the\\n\\n\\n -17-\\n\\freplacement flags it allows. Moreover, the absence of a written\\n\\npolicy outlining the content of the flags that may be raised on\\n\\nCity Hall Plaza is irrelevant to the government speech analysis.\\n\\nSummum, 555 U.S. at 473 (finding that the City there effectively\\n\\ncontrolled its message even though it did not adopt an express\\n\\npolicy as to which monuments it would accept or reject until after\\n\\nrejecting the plaintiff's proposed monument); see also Sutliffe,\\n\\n584 F.3d at 332 (noting that the absence of a written policy is\\n\\n\\\"irrelevant to whether the [City's] actions constitute government\\n\\nspeech\\\").\\n\\n A straightforward assessment under the Summum/Walker\\n\\nfactors thus requires us to conclude that the City's decision about\\n\\nwhich flags to display on the flagpole at issue is likely\\n\\ngovernment speech. However, as we noted before, Shurtleff insists\\n\\nthat the flagpole cannot convey government speech because the flags\\n\\nraised on it are those of third parties and they are only displayed\\n\\ntemporarily. This argument is unavailing. First, the fact that\\n\\nthe flags are privately owned (or at least not owned by the City)\\n\\nchanges nothing because the City enjoys the \\\"same freedom to\\n\\nexpress its views when it receives assistance from private sources\\n\\nfor the purpose of delivering a government-controlled message\\\"\\n\\nlike that which the City Hall flagpole communicates. Summum, 555\\n\\nU.S. at 468. Second, Shurtleff is wrong to suggest that permanence\\n\\n\\n -18-\\n\\fis required for there to be government speech. Shurtleff contends\\n\\nthat the Summum Court emphasized the permanent nature of monuments\\n\\nas supporting a finding of government speech, and that Walker\\n\\nreiterated the relevance of permanence in government speech\\n\\nanalysis. But the Walker Court actually clarified that permanence\\n\\nis not a necessary element of its government speech framework.6\\n\\nSee Walker, 135 S. Ct. at 2249 (\\\"That is not to say that every\\n\\nelement of our discussion in Summum is relevant here. For\\n\\ninstance, in Summum we emphasized that monuments were 'permanent'\\n\\n. . . .\\\").\\n\\n Shurtleff argues that this is a case in which the City\\n\\nis using government speech doctrine \\\"as a subterfuge for favoring\\n\\ncertain private speakers over others based on viewpoint,\\\" Summum,\\n\\n555 U.S. at 473, or as a means of \\\"silenc[ing] or muffl[ing] the\\n\\nexpression of disfavored viewpoints,\\\" Matal, 137 S. Ct. at 1758.\\n\\nWe think not. The record shows that the City has \\\"regularly\\\"\\n\\ngranted permission for religious events to be held on City Hall\\n\\nPlaza. And the City has not refused Shurtleff permission to hold\\n\\n\\n\\n6 We also note that Shurtleff's argument takes Summum's discussion\\nof permanence out of context. There, it was important that the\\nmonuments were permanent because public parks could \\\"accommodate\\nonly a limited number of permanent monuments.\\\" Summum, 555 U.S.\\nat 478. Thus, the real issue was not permanence, but space. See\\nWalker, 135 S. Ct. at 2261 (Alito, J., dissenting) (\\\"A final factor\\nthat was important in Summum was space.\\\").\\n\\n\\n -19-\\n\\fan event at City Hall Plaza that celebrates Christianity and\\n\\nincludes speeches by local clergy. Nor has it refused him the\\n\\nopportunity to request to raise a flag that conforms with City\\n\\npolicy.\\n\\n We now turn to Shurtleff's argument that the government\\n\\nspeech doctrine is inapplicable here because the City has\\n\\ndesignated the flagpole as a public forum. Shurtleff's success\\n\\non this theory is also unlikely because that argument is precluded\\n\\nby our government-speech finding. Walker, 135 S. Ct. at 2250\\n\\n(\\\"Because the State is speaking on its own behalf, the First\\n\\nAmendment strictures that attend the various types of government-\\n\\nestablished forums do not apply.\\\").\\n\\n However, the argument also fails under traditional\\n\\npublic-forum analysis. \\\"The government does not create a public\\n\\nforum by inaction or by permitting limited discourse, but only by\\n\\nintentionally opening a nontraditional forum for public\\n\\ndiscourse.\\\" Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473\\n\\nU.S. 788, 802 (1985). To ascertain if the City has designated the\\n\\nflagpole as a public forum, we look to the City's \\\"policy and\\n\\npractice\\\" and may also consider \\\"the nature of the [flagpole] and\\n\\nits compatibility with expressive activity.\\\" See id. However,\\n\\n\\\"[w]e will not find that a public forum has been created in the\\n\\nface of clear evidence of a contrary intent . . . nor will we infer\\n\\n\\n -20-\\n\\fthat the government intended to create a public forum when the\\n\\nnature of the property is inconsistent with expressive activity.\\\"\\n\\nId. at 803.\\n\\n In Shurtleff's view, the City Hall pole at issue is a\\n\\ndesignated public forum because the application to request a permit\\n\\nfor its use states that, \\\"[w]here possible, the Office of Property\\n\\nand Construction Management seeks to accommodate all applicants\\n\\nseeking to take advantage of the City of Boston's public forums.\\\"\\n\\nBut other than that statement, the record is barren of any\\n\\nindication that the City \\\"intentionally open[ed] a nontraditional\\n\\nforum,\\\" on that flagpole, \\\"for public discourse.\\\" Sutliffe, 584\\n\\nF.3d at 333 (citing Del Gallo v. Parent, 557 F.3d 58, 72 (1st Cir.\\n\\n2009)). Instead, the record contains clear evidence suggesting\\n\\nthat the City did not intend to create a public forum in the choice\\n\\nof which flags to fly from that pole. As we have noted before,\\n\\nthe City strictly controls which third-party flags are raised on\\n\\nthe City Hall pole, with the Commissioner of Property Management\\n\\nscreening all proposed flags for \\\"consisten[cy] with the City's\\n\\nmessage, policies, and practices.\\\" The City has articulated a\\n\\npolicy of not flying non-secular flags in place of the City flag\\n\\nand its rejection of Shurtleff's flag-flying request is consistent\\n\\nwith that policy.\\n\\n\\n\\n\\n -21-\\n\\f Moreover, the nature of this flagpole is also\\n\\ninconsistent with unregulated expressive activity. City Hall\\n\\nPlaza has three flagpoles, and only one of these is occasionally\\n\\navailable for the temporary use of the flags of qualifying third\\n\\nparties. The Plaza, therefore, may only accommodate a very\\n\\nlimited number of flag-flying requests. The City may reasonably\\n\\nconclude that opening the pole for widespread public use could\\n\\ncreate disruptions that compromise the access and operations of\\n\\nCity Hall. Cf. Summum, 555 U.S. at 478 (noting that \\\"[t]he forum\\n\\ndoctrine has been applied in situations in which government-owned\\n\\nproperty or a government program was capable of accommodating a\\n\\nlarge number of public speakers without defeating the essential\\n\\nfunction of the land or the program\\\"). Accordingly, Shurtleff's\\n\\nargument that the choice of flag cannot be government speech\\n\\nbecause the City has designated the flagpole as a public forum\\n\\nlacks any likelihood of success.\\n\\n Considering the foregoing and the record as it is at\\n\\npresent, we find that the City's choice of which flags to raise on\\n\\nthe flagpole at issue likely conveys government speech. And\\n\\nbecause this is the case, the City retains the ability not to\\n\\npromote or be associated with certain flags flown in place of the\\n\\nCity flag on the flagpole in dispute. Thus, Shurtleff and Camp\\n\\nConstitution failed to establish a likelihood of success on their\\n\\n\\n -22-\\n\\ffree speech claim against the City. See Summum, 555 U.S. at 467\\n\\n(\\\"The Free Speech Clause restricts government regulation of\\n\\nprivate speech; it does not regulate government speech.\\\" (citing\\n\\nJohanns, 544 U.S. at 553)).7\\n\\n B.\\n\\n Our final task is to review the district court's\\n\\ndetermination that Shurtleff's Establishment Clause claim is\\n\\nunlikely to succeed.\\n\\n Shurtleff argues that the City violated the\\n\\nEstablishment Clause by excluding Camp Constitution's religious\\n\\nspeech while flying what he calls \\\"other religious flags.\\\" He\\n\\nalleges, for example, that the City has flown the flag of Portugal\\n\\nand the Bunker Hill Association flag, which both contain some\\n\\nreligious symbols. But a flag that references religion by using\\n\\nreligious symbols in part of its field is not itself a religious\\n\\nflag. And as appellants conceded at oral argument and is also\\n\\nevident from the record, there is no evidence that the City has\\n\\never raised the flag of any religion on the flagpole at issue.\\n\\n\\n7 We also note that, in making choices about which flags to allow\\nas temporary replacements for the City flag, the City and its\\nofficials are subject to \\\"the democratic electoral process.\\\"\\nWalker, 135 S. Ct. at 2245; Sutliffe, 584 F.3d at 331 n.9 (\\\"If the\\nvoters do not like those in governance or their government speech,\\nthey may vote them out of office or limit the conduct of those\\nofficials 'by law, regulation, or practice.'\\\" (quoting Summum,\\n555 U.S. at 468) (citation omitted)).\\n\\n\\n -23-\\n\\fShurtleff has not established that the City's policy and practice\\n\\nshows a preference for one religion or religious denomination over\\n\\nanother.\\n\\n Next, Shurtleff claims that the City acts in\\n\\ncontravention of the Establishment Clause \\\"by allowing the\\n\\nnumerous and varied [secular] flags of a broad spectrum of private\\n\\norganizations while specifically excluding Camp Constitution's\\n\\n'non-secular' flag.\\\" But the \\\"secular\\\" flags -- really, flags of\\n\\nsecular organizations or causes -- the City has allowed to fly\\n\\ninstead of the City flag do not show that the City has espoused a\\n\\npreference for non-religion over religion. And the record\\n\\ncontains no evidence that would suggest otherwise. Thus, in light\\n\\nof the current record, we agree with the district court that the\\n\\nlikelihood of success of Shurtleff's Establishment Clause claim is\\n\\ndim.\\n\\n IV.\\n\\n For the reasons explained above, the district court did\\n\\nnot abuse its discretion in denying Shurtleff's request for a\\n\\npreliminary injunction and its judgment is affirmed.\\n\\n Affirmed.\\n\\n\\n\\n\\n -24-\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4412030/\", \"author_raw\": \"TORRUELLA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"SELYA"},"judge3":{"kind":"string","value":"LYNCH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4634777/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Harold SHURTLEFF, and Camp Constitution, a Public Charitable Trust, Plaintiffs, Appellants, v. CITY OF BOSTON, and Gregory T. Rooney, in His Official Capacity as Commissioner of the City of Boston Property Management Division, Defendants, Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-27\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1898\n\n HAROLD SHURTLEFF, and CAMP CONSTITUTION,\n a public charitable trust,\n\n Plaintiffs, Appellants,\n\n v.\n\n CITY OF BOSTON, and GREGORY T. ROONEY, in his official\n capacity as Commissioner of the City of Boston\n Property Management Division,\n\n Defendants, Appellees.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Denise J. Casper, U.S. District Judge]\n\n\n Before\n\n Torruella, Selya, and Lynch,\n Circuit Judges.\n\n\n Mathew D. Staver, with whom Roger K. Gannam, Horatio G. Mihet,\nDaniel J. Schmid, and Liberty Counsel were on brief, for\nappellants.\n John Eidsmoe, Foundation for Moral Law, on brief for\nFoundation for Moral Law, amicus curiae.\n Daniel M. Ortner, Deborah J. La Fetra, and Pacific Legal\nFoundation, on brief for Pacific Legal Foundation, amicus curiae.\n Robert S. Arcangeli, Assistant Corporation Counsel, City of\nBoston Law Department, with whom Eugene L. O'Flaherty, Corporation\nCounsel, was on brief, for appellees.\n\f Richard B. Katskee, Carmen N. Green, Patrick Grubel,\nAmericans United for Separation of Church and State, Jeffrey I.\nPasek, Cozen O'Connor, Steven M. Freeman, David L. Barkey, Amy E.\nFeinman, Anti-Defamation League, Amrith Kaur, Cindy Nesbit and\nSikh Coalition, on brief for Religious and Civil-Rights\nOrganizations, amici curiae.\n\n\n\n June 27, 2019\n\n\n\n\n -2-\n\f TORRUELLA, Circuit Judge. This appeal arises from the\n\ndenial of a preliminary injunction that would have required the\n\nCity of Boston (\"City\") to temporarily raise a \"Christian flag\" on\n\na government-owned flagpole in front of its City Hall. Plaintiff-\n\nappellant Harold Shurtleff is the director of Camp Constitution,\n\na volunteer association (and also a plaintiff-appellant here)\n\nestablished in 2009 to \"enhance understanding of the country's\n\nJudeo-Christian moral heritage, the American heritage of courage\n\nand ingenuity, [and] the genius of the United States Constitution,\"\n\namong other things. To commemorate Constitution and Citizenship\n\nDay in September 2017, Shurtleff, in his role as director of Camp\n\nConstitution, organized an event to be held at the plaza in front\n\nof City Hall. Shurtleff alleges he intended this event to be a\n\ncelebration of the Christian community's civic and social\n\ncontributions to the City and the Commonwealth of Massachusetts,\n\nas well as of Christian support for religious tolerance, the rule\n\nof law, and the United States Constitution. Shurtleff sought a\n\npermit from the City to raise a Christian flag1 on one of the City\n\nHall Plaza flagpoles during the proposed celebration. That flag\n\nwould have been raised next to poles flying the United States and\n\n\n1 The parties refer to this flag as \"the Christian flag.\" We use\nthe term \"a Christian flag\" throughout. In doing so, we do not\nsuggest that all Christian denominations accept that flag as the\nflag of Christianity. There is no evidence of that before us.\n\n\n -3-\n\fMassachusetts flags and in place of the City of Boston flag,\n\nnormally flown there.\n\n The City denied Shurtleff's flag-raising request, but\n\notherwise allowed him and Camp Constitution to host their event at\n\nCity Hall Plaza. Shurtleff and Camp Constitution filed suit\n\nalmost a year later, raising Free Speech, Establishment Clause,\n\nand Equal Protection claims, and seeking a preliminary injunction\n\nto prevent the City from denying them a permit to raise the flag.\n\nThe district court denied the injunction and we now affirm.\n\n I.\n\n City Hall Plaza is at the entrance of Boston's City Hall.\n\nA trio of eighty-three-foot tall poles that the City owns and\n\ncontrols stands in the Plaza. Two of the poles usually fly the\n\nUnited States and Massachusetts flags. At issue here is the third\n\npole, which displays the City's flag except when temporarily\n\nreplaced by another flag upon the request of a third-party person\n\nor organization. Requests to replace the City's flag with another\n\nflag are often accompanied by a proposed third-party event to take\n\nplace at a City-owned venue, such as the Plaza. In the past, the\n\npole in dispute has displayed country flags (according to the\n\ncomplaint, those of Albania, Brazil, Cuba, Ethiopia, Italy,\n\nMexico, Panama, the People's Republic of China, Peru, Portugal,\n\nand also that of the territory of Puerto Rico) as well as the flag\n\n\n -4-\n\fof the Chinese Progressive Association, the LGBT rainbow flag, the\n\ntransgender rights flag, the Juneteenth flag commemorating the end\n\nof slavery, and that of the Bunker Hill Association.\n\n Some of these third-party flags contain what Shurtleff\n\nalleges is religious symbolism. For instance, the Portuguese flag\n\ncontains \"dots inside the blue shields represent[ing] the five\n\nwounds of Christ when crucified\" and \"thirty dots that represents\n\n[sic] the coins Judas received for having betrayed Christ.\" The\n\nBunker Hill Flag contains a red St. George's cross. And the City\n\nflag itself includes the Boston seal's Latin inscription, which\n\ntranslates to \"God be with us as he was with our fathers.\" But\n\nnothing in the record indicates that the City has ever allowed the\n\nflag of any religion to be raised on the flagpole at issue.2\n\n Interested parties must apply to the City for a permit\n\nbefore they can hold an event and/or raise a flag at the Plaza.\n\nThe City has published guidelines for permit applicants on its\n\nwebsite. According to the guidelines, permits may be denied for\n\nseveral reasons, including that the applicant plans to host illegal\n\nactivities on City property or if the proposed event poses a danger\n\nto public health and safety. Applications may also be denied if\n\n\n2 Shurtleff avers that, in 2012, he applied for and received a\npermit to display a flag on the pole at issue here. He does not\nspecify, however, the type of flag that the City allowed him to\nraise.\n\n\n -5-\n\fthey do not comply with other relevant permit requirements,\n\nordinances, or regulations. The Office of Property and\n\nConstruction Management leads the application review process and\n\nis charged with ensuring that all applications meet City\n\nguidelines. And the Commissioner of Property Management himself\n\nreviews flag-raising applications for the City Hall Plaza poles to\n\nensure that they are \"consistent with the City's message, policies,\n\nand practices.\" There is no written policy regarding which flags\n\nmay be raised on the City Hall poles.\n\n On July 28, 2017, Shurtleff emailed the City requesting\n\na permit to \"raise the Christian Flag on City Hall Plaza.\"\n\nShurtleff proposed several dates in September 2017 for the flag\n\nraising and explained that Camp Constitution would sponsor the\n\nevent, which was also to include \"short speeches by some local\n\nclergy focusing on Boston's history.\" Shurtleff's email to the\n\nCity also included a photo of a Christian flag to be raised, which\n\nhas a white field and a red Latin cross inside a blue canton. On\n\nSeptember 5, 2017, Shurtleff received an email response from the\n\nCity denying his request to raise the flag. The City's response\n\ndid not offer a reason for the denial.\n\n Unsatisfied, Shurtleff emailed the City the next day to\n\ninquire about the \"official reason\" for denying his application.\n\nTwo days later, on September 8, Shurtleff received an email from\n\n\n -6-\n\fGregory T. Rooney, the City's Commissioner of Property Management,\n\nexplaining that his request was denied because \"[t]he City of\n\nBoston maintains a policy and practice of respectfully refraining\n\nfrom flying non-secular flags on the City Hall flagpoles.\"\n\nRooney's email explained that such a \"policy and practice is\n\nconsistent with [both] well-established First Amendment\n\njurisprudence . . . [and] with [the] City's legal authority to\n\nchoose how a limited government resource, like the City Hall\n\nflagpoles, is used.\" Before signing off, Rooney informed\n\nShurtleff that the \"City would be willing to consider a request to\n\nfly a non-religious flag, should your organization elect to offer\n\none.\" Shurtleff's plan to host an event at City Hall Plaza,\n\nhowever, was allowed to go forward.\n\n Around September 13, 2017, Shurtleff submitted a renewed\n\nevent and flag-raising application to the City, asking to use City\n\nHall Plaza and its flagpoles for the \"Camp Constitution Christian\n\nFlag Raising.\" Shurtleff's event description explained that the\n\n\"Christian flag is an important symbol of our country's Judeo-\n\nChristian heritage\" and that the aim of the flag raising was to\n\ncelebrate \"our Nation's heritage and the civic accomplishments and\n\nsocial contributions of the Christian community to the\n\nCommonwealth of Massachusetts, religious tolerance, the Rule of\n\nLaw, and the U.S. Constitution.\" On September 14, Shurtleff's\n\n\n -7-\n\fcounsel sent a letter to Boston Mayor Martin Walsh -- with copy to\n\nother City officials -- that enclosed Shurtleff's September 13\n\napplication to celebrate a \"Christian Flag Raising.\" This letter\n\nrequested that the City approve Shurtleff's flag-raising\n\napplication on or before September 27, 2017. The City neither\n\nissued a permit nor replied in reaction to Shurtleff's September 13\n\nand 27 communications. Since then, Shurtleff has not applied to\n\nhold any events on City grounds, with or without a flag.\n\n Shurtleff and Camp Constitution filed suit on July 6,\n\n2018, seeking injunctive relief, declaratory relief, and damages\n\nagainst the City and Rooney in his official capacity as\n\nCommissioner of the City's Property Management Division.\n\nAppellants aver, inter alia, that the City \"violated [their] First\n\nAmendment right to Freedom of Speech by preventing [them] from\n\ndisplaying the Christian flag as part of a celebration of the\n\nChristian community and America's Judeo-Christian heritage to be\n\nheld at [the City's] designated public fora at City Hall Plaza and\n\n[its] flagpoles.\" Shurtleff and Camp Constitution moved for a\n\npreliminary injunction on July 9, 2018. The district court heard\n\nargument on August 9, 2018, and issued an opinion denying their\n\nrequest on August 29, 2018. Shurtleff v. City of Bos., 337 F.\n\nSupp. 3d 66, 79 (D. Mass. 2018). Among other things, the court\n\nheld that the preliminary injunction could not proceed because the\n\n\n -8-\n\f\"City's selection and presentation of flags on the City flagpole\n\nconstitute government speech,\" id. at 73, and government speech\n\nescapes scrutiny under the Free Speech Clause.\n\n II.\n\n Before it grants a preliminary injunction, a district\n\ncourt is required to consider (1) the movant's likelihood of\n\nsuccess on the merits; (2) the likelihood of the movant suffering\n\nirreparable harm; (3) the balance of equities; and (4) whether\n\ngranting the injunction is in the public interest. Díaz-\n\nCarrasquillo v. García-Padilla, 750 F.3d 7, 10 (1st Cir. 2014).\n\nAnd when faced with an interlocutory appeal, as we are in this\n\ncase, we review the district court's decision to deny a preliminary\n\ninjunction for abuse of discretion but review its findings of fact\n\nfor clear error and its conclusions of law de novo. Am. Freedom\n\nDef. Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 578 (1st\n\nCir. 2015). Because Shurtleff and Camp Constitution did not\n\n\"'establish a strong likelihood that they will ultimately prevail'\n\non the merits of their First Amendment claim[s],\" we affirm the\n\ndistrict court's denial of their request for a preliminary\n\ninjunction.3 Id.(quoting Sindicato Puertorriqueño de Trabajadores,\n\nSEIU Local 1996 v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012)).\n\n\n3 Since the \"sine qua non of th[e] four-part inquiry is likelihood\nof success on the merits,\" New Comm Wireless Servs., Inc. v.\nSprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002), and appellants\n\n -9-\n\f III.\n\n The centerpiece of Shurtleff's argument on appeal is\n\nthat the City's choice of which flags to raise temporarily in place\n\nof the usual Boston flag on the City Hall Plaza flagpole at issue\n\ndoes not constitute government speech and that the flagpole is\n\ninstead a designated public forum. We tackle first his challenge\n\nto the district court's finding of government speech.\n\n A.\n\n Shurtleff argues that neither Walker v. Texas Division,\n\nSons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), nor\n\nPleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) -- the\n\npair of recent cases the district court relied on to conclude that\n\nthe City's choice of which flags to fly on the flagpole at issue\n\nis government speech -- supports a government speech label for a\n\nthird-party group's temporary display of a flag owned by the group.\n\nShurtleff explains that Summum resolved that the placement of\n\n\"permanent\" monuments in a public park was a form of government\n\nspeech, which is inapposite to \"temporarily\" raising flags on a\n\ncity-owned pole. Further, Shurtleff argues that Walker reaffirmed\n\nthe relevance of permanence for finding government speech.\n\n\nfailed to meet that burden, we do not address the final three\nfactors of the inquiry for preliminary injunctive relief. See Am.\nFreedom Def. Initiative, 781 F.3d at 578 n.4 (following this\napproach).\n\n\n -10-\n\fShurtleff also maintains that the government \"ownership\" and\n\n\"control\" elements that the Court identified in Walker and Summum\n\nas creating government speech are not present for occasionally\n\ndisplayed third-party flags on the City Hall flagpole. We\n\ndisagree with each of Shurtleff's points, but before responding we\n\nfind it helpful to revisit in some detail the contours that the\n\nSupreme Court has established for the government speech doctrine.\n\n In Summum, the Court considered \"whether the Free Speech\n\nClause of the First Amendment entitles a private group to insist\n\nthat a municipality permit it to place a permanent monument in a\n\ncity park in which other donated monuments were previously\n\nerected.\" 555 U.S. at 464. The Free Speech Clause did not mandate\n\nthat result, the Court concluded, because \"the display of a\n\npermanent monument in a public park is not a form of expression to\n\nwhich forum analysis applies\" since it is \"best viewed as a form\n\nof government speech.\" Id. The Court reached that conclusion\n\nafter making three observations. First, that \"[g]overnments have\n\nlong used monuments to speak to the public.\" Id. at 470. Second,\n\nthat \"[p]ublic parks are often closely identified in the public\n\nmind with the government unit that owns the land,\" which is the\n\nreason why \"there is little chance that observers will fail to\n\nappreciate the identity of the speaker\" as the government when\n\nthey see a monument at a public park. Id. at 471-72. And third,\n\n\n -11-\n\fthat the government \"has 'effectively controlled' the messages\n\nsent by the monuments in the Park by exercising 'final approval\n\nauthority' over their selection.\" Id. at 473 (citing Johanns v.\n\nLivestock Marketing Assn., 544 U.S. 550, 560-61 (2005)).\n\n The Court reaffirmed the Summum framework six years\n\nlater in Walker. That case originated after a nonprofit\n\norganization applied to the Texas Department of Motor Vehicles\n\nBoard for a specialty license plate featuring the Confederate flag.\n\nThe Board rejected the application, 135 S. Ct. at 2244, and members\n\nof the nonprofit filed suit alleging that the rejection violated\n\ntheir free speech rights. Not so, said the Court, holding that\n\n\"Texas's specialty license plate designs constitute government\n\nspeech,\" for which the Board was entitled to refuse issuing license\n\nplates that feature the Confederate flag. Id. at 2253. The Court\n\npinpointed three factors as relevant to identifying government\n\nspeech in light of Summum: (1) whether the government has\n\ntraditionally used the message or conduct at issue to speak to the\n\npublic; (2) whether persons would interpret the speech as conveying\n\nsome message on the government's behalf; and (3) whether the\n\ngovernment maintains control over the selection of the message.\n\nSee id. at 2247. Applying these factors, the Court concluded that\n\nthe license plates are government speech because (1) \"they long\n\nhave communicated messages from the States,\" id. at 2248; (2) they\n\n\n -12-\n\f\"are often closely identified in the public mind with the [State],\"\n\nid. (citing Summum, 555 U.S. at 472); and (3) \"Texas maintains\n\ndirect control over the messages conveyed on its specialty plates,\"\n\nid. at 2249. The Court later remarked that Walker \"likely marks\n\nthe outer bounds of the government-speech doctrine.\" Matal v.\n\nTam, 137 S. Ct. 1744, 1760 (2017).\n\n The Summum/Walker three-part test controls here and each\n\nof its factors strongly favors a finding that the City engages in\n\ngovernment speech when it decides which flags to display in place\n\nof the City flag on the City Hall flagpole. This case lies well\n\nwithin the established bounds of the government speech doctrine.\n\n First, the government has long used flags to communicate\n\nmessages. See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319\n\nU.S. 624, 632 (1943) (\"The use of an emblem or flag to symbolize\n\nsome system, idea, institution, or personality, is a short cut\n\nfrom mind to mind. Causes and nations, political parties, lodges\n\nand ecclesiastical groups seek to knit the loyalty of their\n\nfollowings to a flag or banner . . . .\"); Griffin v. Sec'y of\n\nVeterans Affairs, 288 F.3d 1309, 1324 (Fed. Cir. 2002) (\"We have\n\nno doubt that the government engages in speech when it flies its\n\nown flags over a national cemetery, and that its choice of which\n\nflags to fly may favor one viewpoint over another.\"). For\n\ninstance, \"Congress has provided that the flag be flown at half-\n\n\n -13-\n\fstaff upon the death of the President, Vice President, and other\n\ngovernment officials 'as a mark of respect to their memory.'\"\n\nTexas v. Johnson, 491 U.S. 397, 427 (1989) (Rehnquist, C.J.,\n\ndissenting) (quoting 36 U.S.C. § 175(m) (current version at 4\n\nU.S.C. § 7(m))). And when a visiting dignitary comes to\n\nWashington for a state or official visit, Blair House (the\n\nPresident's guest house) flies the flag of the dignitary's country.\n\nMary Mel French, United States Protocol 298 (2010).4\n\n\n\n\n4 Of course, flags themselves communicate a message. In a 1944\nPresidential Proclamation, President Franklin Roosevelt stated,\n\"The flag of the United States of America is universally\nrepresentative of the principles of justice, liberty, and\ndemocracy enjoyed by the people of the United States.\"\nProclamation No. 2605, 9 Fed. Reg. 1957 (Feb. 22, 1944). Congress\nhas provided that the American \"flag represents a living country\nand is itself considered a living thing.\" 4 U.S.C. § 8(j). When\nUnited States Marines reached the top of Mount Suribachi at Iwo\nJima, \"they raised a piece of pipe upright and from one end\nfluttered a flag.\" Johnson, 491 U.S. at 425-26 (Rehnquist, C.J.,\ndissenting). And troops marked their successful landing at Inchon\nduring the Korean war with the raising of an American flag. Id.\nat 426.\n\n Shurtleff's proposed flag is no different: it was designed to\nincorporate certain Christian symbolism, including the Latin\ncross. See Trunk v. City of San Diego, 629 F.3d 1099, 1110 (9th\nCir. 2011) (recognizing the Latin cross as \"the preeminent symbol\nof Christianity\"); cf. Barnette, 319 U.S. at 632 (\"[T]he church\nspeaks through the Cross, the Crucifix, the altar and shrine, and\nclerical raiment.\"); Salazar v. Buono, 559 U.S. 700, 747 (2010)\n(Stevens, J., dissenting) (\"We have recognized the significance of\nthe Latin cross as a sectarian symbol, and no participant in this\nlitigation denies that the cross bears that social meaning.\").\n\n\n -14-\n\f The City partakes of similar practices and has\n\nhistorically used the City Hall Plaza pole at issue here to convey\n\na message when the City flag is replaced with another flag. For\n\ninstance, the City flew the flag of Portugal on that pole to\n\nrecognize \"the Portuguese community's presence and importance in\n\nthe State of Massachusetts.\" The City also sometimes displays its\n\nmunicipal flag to signify that its mayor is present at a given\n\nevent. It therefore follows that the City recognizes flag flying\n\nas a symbolic act and that it uses flags -- in particular those\n\nraised on the City Hall Plaza pole -- to speak to the public.\n\n Next, we examine whether an observer would identify the\n\nCity as the \"speaker\" when she sees a third-party flag, like a\n\nChristian flag, raised in front of City Hall and flying alongside\n\nthe United States and Massachusetts flags. See Walker, 135 S. Ct.\n\nat 2249; Summum, 555 U.S. at 471.5 We have little doubt that the\n\nthird-party flag's message would be attributed to the City.\n\n\n\n\n5 In his Summum concurrence, Justice Souter proposed using a\n\"reasonable person\" test to analyze the attribution prong. See\nSummum, 555 U.S. at 487 (Souter, J., concurring) (\"[T]o say when\nspeech is governmental, the best approach that occurs to me is to\nask whether a reasonable and fully informed observer would\nunderstand the expression to be government speech, as distinct\nfrom private speech the government chooses to oblige by allowing\nthe monument to be placed on public land.\"). If the Court adopts\nthis standard in a future case, it would be easily met here.\n\n\n -15-\n\f If the observer arrived in time, she could well see a\n\nCity employee lower the Boston flag and replace it with a third\n\nparty's flag. The replacement flag would fly eighty-three feet\n\ninto the sky only steps away from the entrance to Boston's seat of\n\ngovernment, City Hall. That height would make the flag visible\n\nfrom far away, even from places that have no view of what is\n\nhappening on the plaza below. And the third-party flag would keep\n\ncompany with the United States flag and the flag of the\n\nCommonwealth of Massachusetts, two powerful governmental symbols.\n\n\"In this context, there is little chance that observers will fail\n\nto appreciate the identity of the speaker\" as being the City.\n\nSummum, 555 U.S. at 471.\n\n Lastly, we assess if the City maintains control over the\n\nselection of the messages it conveys on its City Hall flagpole.\n\nSee Walker, 135 S. Ct. at 2247. Shurtleff argues that, to find\n\ngovernment speech, Summum and Walker require the government to\n\ntake physical control over previously private expression, control\n\nevery aspect of its design and maintenance, and require\n\nrelinquishment of private ownership rights. We reject the\n\nargument as a misreading of those cases. See Sutliffe v. Epping\n\nSch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (finding that links\n\nplaced on a government website were government speech and\n\nemphasizing that the town \"controlled the content of [the] message\n\n\n -16-\n\fby exercising final approval authority over the [] selection of\n\nthe hyperlinks on the website\"); cf. Ridley v. Mass. Bay Transp.\n\nAuth., 390 F.3d 65, 82 (1st Cir. 2004) (rejecting the plaintiffs'\n\nargument that the MBTA had created a public forum in part because\n\n\"[t]he MBTA's policy clearly evidenced an intent to maintain\n\ncontrol over the forum\").\n\n The record is clear that the City owns the flagpole at\n\nissue and that it controls which third-party flags are raised in\n\nplace of the City flag. Interested persons and organizations must\n\napply to the City for a permit before they can raise a flag on\n\nthis flagpole. The City's Office of Property and Construction\n\nManagement then reviews all applications to ensure that they comply\n\nwith governing guidelines, and the Commissioner of Property\n\nManagement himself screens flag-raising requests for the pole at\n\nissue to ensure that those requests are \"consistent with the City's\n\nmessage, policies, and practices.\" And unlike many other public\n\nspaces controlled by a permitting process, for access to which the\n\nCity might grant thousands of applications a year, the flagpole at\n\nissue is only rarely occupied by a third-party flag. Appellant's\n\ncomplaint lists only fifteen instances, over a period of years, in\n\nwhich the City has granted a third party's flag-flying request.\n\nThat rarity highlights the City's tight control over the flagpole\n\nin question and that it engages in symbolic speech as to the\n\n\n -17-\n\freplacement flags it allows. Moreover, the absence of a written\n\npolicy outlining the content of the flags that may be raised on\n\nCity Hall Plaza is irrelevant to the government speech analysis.\n\nSummum, 555 U.S. at 473 (finding that the City there effectively\n\ncontrolled its message even though it did not adopt an express\n\npolicy as to which monuments it would accept or reject until after\n\nrejecting the plaintiff's proposed monument); see also Sutliffe,\n\n584 F.3d at 332 (noting that the absence of a written policy is\n\n\"irrelevant to whether the [City's] actions constitute government\n\nspeech\").\n\n A straightforward assessment under the Summum/Walker\n\nfactors thus requires us to conclude that the City's decision about\n\nwhich flags to display on the flagpole at issue is likely\n\ngovernment speech. However, as we noted before, Shurtleff insists\n\nthat the flagpole cannot convey government speech because the flags\n\nraised on it are those of third parties and they are only displayed\n\ntemporarily. This argument is unavailing. First, the fact that\n\nthe flags are privately owned (or at least not owned by the City)\n\nchanges nothing because the City enjoys the \"same freedom to\n\nexpress its views when it receives assistance from private sources\n\nfor the purpose of delivering a government-controlled message\"\n\nlike that which the City Hall flagpole communicates. Summum, 555\n\nU.S. at 468. Second, Shurtleff is wrong to suggest that permanence\n\n\n -18-\n\fis required for there to be government speech. Shurtleff contends\n\nthat the Summum Court emphasized the permanent nature of monuments\n\nas supporting a finding of government speech, and that Walker\n\nreiterated the relevance of permanence in government speech\n\nanalysis. But the Walker Court actually clarified that permanence\n\nis not a necessary element of its government speech framework.6\n\nSee Walker, 135 S. Ct. at 2249 (\"That is not to say that every\n\nelement of our discussion in Summum is relevant here. For\n\ninstance, in Summum we emphasized that monuments were 'permanent'\n\n. . . .\").\n\n Shurtleff argues that this is a case in which the City\n\nis using government speech doctrine \"as a subterfuge for favoring\n\ncertain private speakers over others based on viewpoint,\" Summum,\n\n555 U.S. at 473, or as a means of \"silenc[ing] or muffl[ing] the\n\nexpression of disfavored viewpoints,\" Matal, 137 S. Ct. at 1758.\n\nWe think not. The record shows that the City has \"regularly\"\n\ngranted permission for religious events to be held on City Hall\n\nPlaza. And the City has not refused Shurtleff permission to hold\n\n\n\n6 We also note that Shurtleff's argument takes Summum's discussion\nof permanence out of context. There, it was important that the\nmonuments were permanent because public parks could \"accommodate\nonly a limited number of permanent monuments.\" Summum, 555 U.S.\nat 478. Thus, the real issue was not permanence, but space. See\nWalker, 135 S. Ct. at 2261 (Alito, J., dissenting) (\"A final factor\nthat was important in Summum was space.\").\n\n\n -19-\n\fan event at City Hall Plaza that celebrates Christianity and\n\nincludes speeches by local clergy. Nor has it refused him the\n\nopportunity to request to raise a flag that conforms with City\n\npolicy.\n\n We now turn to Shurtleff's argument that the government\n\nspeech doctrine is inapplicable here because the City has\n\ndesignated the flagpole as a public forum. Shurtleff's success\n\non this theory is also unlikely because that argument is precluded\n\nby our government-speech finding. Walker, 135 S. Ct. at 2250\n\n(\"Because the State is speaking on its own behalf, the First\n\nAmendment strictures that attend the various types of government-\n\nestablished forums do not apply.\").\n\n However, the argument also fails under traditional\n\npublic-forum analysis. \"The government does not create a public\n\nforum by inaction or by permitting limited discourse, but only by\n\nintentionally opening a nontraditional forum for public\n\ndiscourse.\" Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473\n\nU.S. 788, 802 (1985). To ascertain if the City has designated the\n\nflagpole as a public forum, we look to the City's \"policy and\n\npractice\" and may also consider \"the nature of the [flagpole] and\n\nits compatibility with expressive activity.\" See id. However,\n\n\"[w]e will not find that a public forum has been created in the\n\nface of clear evidence of a contrary intent . . . nor will we infer\n\n\n -20-\n\fthat the government intended to create a public forum when the\n\nnature of the property is inconsistent with expressive activity.\"\n\nId. at 803.\n\n In Shurtleff's view, the City Hall pole at issue is a\n\ndesignated public forum because the application to request a permit\n\nfor its use states that, \"[w]here possible, the Office of Property\n\nand Construction Management seeks to accommodate all applicants\n\nseeking to take advantage of the City of Boston's public forums.\"\n\nBut other than that statement, the record is barren of any\n\nindication that the City \"intentionally open[ed] a nontraditional\n\nforum,\" on that flagpole, \"for public discourse.\" Sutliffe, 584\n\nF.3d at 333 (citing Del Gallo v. Parent, 557 F.3d 58, 72 (1st Cir.\n\n2009)). Instead, the record contains clear evidence suggesting\n\nthat the City did not intend to create a public forum in the choice\n\nof which flags to fly from that pole. As we have noted before,\n\nthe City strictly controls which third-party flags are raised on\n\nthe City Hall pole, with the Commissioner of Property Management\n\nscreening all proposed flags for \"consisten[cy] with the City's\n\nmessage, policies, and practices.\" The City has articulated a\n\npolicy of not flying non-secular flags in place of the City flag\n\nand its rejection of Shurtleff's flag-flying request is consistent\n\nwith that policy.\n\n\n\n\n -21-\n\f Moreover, the nature of this flagpole is also\n\ninconsistent with unregulated expressive activity. City Hall\n\nPlaza has three flagpoles, and only one of these is occasionally\n\navailable for the temporary use of the flags of qualifying third\n\nparties. The Plaza, therefore, may only accommodate a very\n\nlimited number of flag-flying requests. The City may reasonably\n\nconclude that opening the pole for widespread public use could\n\ncreate disruptions that compromise the access and operations of\n\nCity Hall. Cf. Summum, 555 U.S. at 478 (noting that \"[t]he forum\n\ndoctrine has been applied in situations in which government-owned\n\nproperty or a government program was capable of accommodating a\n\nlarge number of public speakers without defeating the essential\n\nfunction of the land or the program\"). Accordingly, Shurtleff's\n\nargument that the choice of flag cannot be government speech\n\nbecause the City has designated the flagpole as a public forum\n\nlacks any likelihood of success.\n\n Considering the foregoing and the record as it is at\n\npresent, we find that the City's choice of which flags to raise on\n\nthe flagpole at issue likely conveys government speech. And\n\nbecause this is the case, the City retains the ability not to\n\npromote or be associated with certain flags flown in place of the\n\nCity flag on the flagpole in dispute. Thus, Shurtleff and Camp\n\nConstitution failed to establish a likelihood of success on their\n\n\n -22-\n\ffree speech claim against the City. See Summum, 555 U.S. at 467\n\n(\"The Free Speech Clause restricts government regulation of\n\nprivate speech; it does not regulate government speech.\" (citing\n\nJohanns, 544 U.S. at 553)).7\n\n B.\n\n Our final task is to review the district court's\n\ndetermination that Shurtleff's Establishment Clause claim is\n\nunlikely to succeed.\n\n Shurtleff argues that the City violated the\n\nEstablishment Clause by excluding Camp Constitution's religious\n\nspeech while flying what he calls \"other religious flags.\" He\n\nalleges, for example, that the City has flown the flag of Portugal\n\nand the Bunker Hill Association flag, which both contain some\n\nreligious symbols. But a flag that references religion by using\n\nreligious symbols in part of its field is not itself a religious\n\nflag. And as appellants conceded at oral argument and is also\n\nevident from the record, there is no evidence that the City has\n\never raised the flag of any religion on the flagpole at issue.\n\n\n7 We also note that, in making choices about which flags to allow\nas temporary replacements for the City flag, the City and its\nofficials are subject to \"the democratic electoral process.\"\nWalker, 135 S. Ct. at 2245; Sutliffe, 584 F.3d at 331 n.9 (\"If the\nvoters do not like those in governance or their government speech,\nthey may vote them out of office or limit the conduct of those\nofficials 'by law, regulation, or practice.'\" (quoting Summum,\n555 U.S. at 468) (citation omitted)).\n\n\n -23-\n\fShurtleff has not established that the City's policy and practice\n\nshows a preference for one religion or religious denomination over\n\nanother.\n\n Next, Shurtleff claims that the City acts in\n\ncontravention of the Establishment Clause \"by allowing the\n\nnumerous and varied [secular] flags of a broad spectrum of private\n\norganizations while specifically excluding Camp Constitution's\n\n'non-secular' flag.\" But the \"secular\" flags -- really, flags of\n\nsecular organizations or causes -- the City has allowed to fly\n\ninstead of the City flag do not show that the City has espoused a\n\npreference for non-religion over religion. And the record\n\ncontains no evidence that would suggest otherwise. Thus, in light\n\nof the current record, we agree with the district court that the\n\nlikelihood of success of Shurtleff's Establishment Clause claim is\n\ndim.\n\n IV.\n\n For the reasons explained above, the district court did\n\nnot abuse its discretion in denying Shurtleff's request for a\n\npreliminary injunction and its judgment is affirmed.\n\n Affirmed.\n\n\n\n\n -24-\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Harold SHURTLEFF, and Camp Constitution, a Public Charitable Trust, Plaintiffs, Appellants, v. CITY OF BOSTON, and Gregory T. Rooney, in His Official Capacity as Commissioner of the City of Boston Property Management Division, Defendants, Appellees.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-27\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1898\\n\\n HAROLD SHURTLEFF, and CAMP CONSTITUTION,\\n a public charitable trust,\\n\\n Plaintiffs, Appellants,\\n\\n v.\\n\\n CITY OF BOSTON, and GREGORY T. ROONEY, in his official\\n capacity as Commissioner of the City of Boston\\n Property Management Division,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Denise J. Casper, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Selya, and Lynch,\\n Circuit Judges.\\n\\n\\n Mathew D. Staver, with whom Roger K. Gannam, Horatio G. Mihet,\\nDaniel J. Schmid, and Liberty Counsel were on brief, for\\nappellants.\\n John Eidsmoe, Foundation for Moral Law, on brief for\\nFoundation for Moral Law, amicus curiae.\\n Daniel M. Ortner, Deborah J. La Fetra, and Pacific Legal\\nFoundation, on brief for Pacific Legal Foundation, amicus curiae.\\n Robert S. Arcangeli, Assistant Corporation Counsel, City of\\nBoston Law Department, with whom Eugene L. O'Flaherty, Corporation\\nCounsel, was on brief, for appellees.\\n\\f Richard B. Katskee, Carmen N. Green, Patrick Grubel,\\nAmericans United for Separation of Church and State, Jeffrey I.\\nPasek, Cozen O'Connor, Steven M. Freeman, David L. Barkey, Amy E.\\nFeinman, Anti-Defamation League, Amrith Kaur, Cindy Nesbit and\\nSikh Coalition, on brief for Religious and Civil-Rights\\nOrganizations, amici curiae.\\n\\n\\n\\n June 27, 2019\\n\\n\\n\\n\\n -2-\\n\\f TORRUELLA, Circuit Judge. This appeal arises from the\\n\\ndenial of a preliminary injunction that would have required the\\n\\nCity of Boston (\\\"City\\\") to temporarily raise a \\\"Christian flag\\\" on\\n\\na government-owned flagpole in front of its City Hall. Plaintiff-\\n\\nappellant Harold Shurtleff is the director of Camp Constitution,\\n\\na volunteer association (and also a plaintiff-appellant here)\\n\\nestablished in 2009 to \\\"enhance understanding of the country's\\n\\nJudeo-Christian moral heritage, the American heritage of courage\\n\\nand ingenuity, [and] the genius of the United States Constitution,\\\"\\n\\namong other things. To commemorate Constitution and Citizenship\\n\\nDay in September 2017, Shurtleff, in his role as director of Camp\\n\\nConstitution, organized an event to be held at the plaza in front\\n\\nof City Hall. Shurtleff alleges he intended this event to be a\\n\\ncelebration of the Christian community's civic and social\\n\\ncontributions to the City and the Commonwealth of Massachusetts,\\n\\nas well as of Christian support for religious tolerance, the rule\\n\\nof law, and the United States Constitution. Shurtleff sought a\\n\\npermit from the City to raise a Christian flag1 on one of the City\\n\\nHall Plaza flagpoles during the proposed celebration. That flag\\n\\nwould have been raised next to poles flying the United States and\\n\\n\\n1 The parties refer to this flag as \\\"the Christian flag.\\\" We use\\nthe term \\\"a Christian flag\\\" throughout. In doing so, we do not\\nsuggest that all Christian denominations accept that flag as the\\nflag of Christianity. There is no evidence of that before us.\\n\\n\\n -3-\\n\\fMassachusetts flags and in place of the City of Boston flag,\\n\\nnormally flown there.\\n\\n The City denied Shurtleff's flag-raising request, but\\n\\notherwise allowed him and Camp Constitution to host their event at\\n\\nCity Hall Plaza. Shurtleff and Camp Constitution filed suit\\n\\nalmost a year later, raising Free Speech, Establishment Clause,\\n\\nand Equal Protection claims, and seeking a preliminary injunction\\n\\nto prevent the City from denying them a permit to raise the flag.\\n\\nThe district court denied the injunction and we now affirm.\\n\\n I.\\n\\n City Hall Plaza is at the entrance of Boston's City Hall.\\n\\nA trio of eighty-three-foot tall poles that the City owns and\\n\\ncontrols stands in the Plaza. Two of the poles usually fly the\\n\\nUnited States and Massachusetts flags. At issue here is the third\\n\\npole, which displays the City's flag except when temporarily\\n\\nreplaced by another flag upon the request of a third-party person\\n\\nor organization. Requests to replace the City's flag with another\\n\\nflag are often accompanied by a proposed third-party event to take\\n\\nplace at a City-owned venue, such as the Plaza. In the past, the\\n\\npole in dispute has displayed country flags (according to the\\n\\ncomplaint, those of Albania, Brazil, Cuba, Ethiopia, Italy,\\n\\nMexico, Panama, the People's Republic of China, Peru, Portugal,\\n\\nand also that of the territory of Puerto Rico) as well as the flag\\n\\n\\n -4-\\n\\fof the Chinese Progressive Association, the LGBT rainbow flag, the\\n\\ntransgender rights flag, the Juneteenth flag commemorating the end\\n\\nof slavery, and that of the Bunker Hill Association.\\n\\n Some of these third-party flags contain what Shurtleff\\n\\nalleges is religious symbolism. For instance, the Portuguese flag\\n\\ncontains \\\"dots inside the blue shields represent[ing] the five\\n\\nwounds of Christ when crucified\\\" and \\\"thirty dots that represents\\n\\n[sic] the coins Judas received for having betrayed Christ.\\\" The\\n\\nBunker Hill Flag contains a red St. George's cross. And the City\\n\\nflag itself includes the Boston seal's Latin inscription, which\\n\\ntranslates to \\\"God be with us as he was with our fathers.\\\" But\\n\\nnothing in the record indicates that the City has ever allowed the\\n\\nflag of any religion to be raised on the flagpole at issue.2\\n\\n Interested parties must apply to the City for a permit\\n\\nbefore they can hold an event and/or raise a flag at the Plaza.\\n\\nThe City has published guidelines for permit applicants on its\\n\\nwebsite. According to the guidelines, permits may be denied for\\n\\nseveral reasons, including that the applicant plans to host illegal\\n\\nactivities on City property or if the proposed event poses a danger\\n\\nto public health and safety. Applications may also be denied if\\n\\n\\n2 Shurtleff avers that, in 2012, he applied for and received a\\npermit to display a flag on the pole at issue here. He does not\\nspecify, however, the type of flag that the City allowed him to\\nraise.\\n\\n\\n -5-\\n\\fthey do not comply with other relevant permit requirements,\\n\\nordinances, or regulations. The Office of Property and\\n\\nConstruction Management leads the application review process and\\n\\nis charged with ensuring that all applications meet City\\n\\nguidelines. And the Commissioner of Property Management himself\\n\\nreviews flag-raising applications for the City Hall Plaza poles to\\n\\nensure that they are \\\"consistent with the City's message, policies,\\n\\nand practices.\\\" There is no written policy regarding which flags\\n\\nmay be raised on the City Hall poles.\\n\\n On July 28, 2017, Shurtleff emailed the City requesting\\n\\na permit to \\\"raise the Christian Flag on City Hall Plaza.\\\"\\n\\nShurtleff proposed several dates in September 2017 for the flag\\n\\nraising and explained that Camp Constitution would sponsor the\\n\\nevent, which was also to include \\\"short speeches by some local\\n\\nclergy focusing on Boston's history.\\\" Shurtleff's email to the\\n\\nCity also included a photo of a Christian flag to be raised, which\\n\\nhas a white field and a red Latin cross inside a blue canton. On\\n\\nSeptember 5, 2017, Shurtleff received an email response from the\\n\\nCity denying his request to raise the flag. The City's response\\n\\ndid not offer a reason for the denial.\\n\\n Unsatisfied, Shurtleff emailed the City the next day to\\n\\ninquire about the \\\"official reason\\\" for denying his application.\\n\\nTwo days later, on September 8, Shurtleff received an email from\\n\\n\\n -6-\\n\\fGregory T. Rooney, the City's Commissioner of Property Management,\\n\\nexplaining that his request was denied because \\\"[t]he City of\\n\\nBoston maintains a policy and practice of respectfully refraining\\n\\nfrom flying non-secular flags on the City Hall flagpoles.\\\"\\n\\nRooney's email explained that such a \\\"policy and practice is\\n\\nconsistent with [both] well-established First Amendment\\n\\njurisprudence . . . [and] with [the] City's legal authority to\\n\\nchoose how a limited government resource, like the City Hall\\n\\nflagpoles, is used.\\\" Before signing off, Rooney informed\\n\\nShurtleff that the \\\"City would be willing to consider a request to\\n\\nfly a non-religious flag, should your organization elect to offer\\n\\none.\\\" Shurtleff's plan to host an event at City Hall Plaza,\\n\\nhowever, was allowed to go forward.\\n\\n Around September 13, 2017, Shurtleff submitted a renewed\\n\\nevent and flag-raising application to the City, asking to use City\\n\\nHall Plaza and its flagpoles for the \\\"Camp Constitution Christian\\n\\nFlag Raising.\\\" Shurtleff's event description explained that the\\n\\n\\\"Christian flag is an important symbol of our country's Judeo-\\n\\nChristian heritage\\\" and that the aim of the flag raising was to\\n\\ncelebrate \\\"our Nation's heritage and the civic accomplishments and\\n\\nsocial contributions of the Christian community to the\\n\\nCommonwealth of Massachusetts, religious tolerance, the Rule of\\n\\nLaw, and the U.S. Constitution.\\\" On September 14, Shurtleff's\\n\\n\\n -7-\\n\\fcounsel sent a letter to Boston Mayor Martin Walsh -- with copy to\\n\\nother City officials -- that enclosed Shurtleff's September 13\\n\\napplication to celebrate a \\\"Christian Flag Raising.\\\" This letter\\n\\nrequested that the City approve Shurtleff's flag-raising\\n\\napplication on or before September 27, 2017. The City neither\\n\\nissued a permit nor replied in reaction to Shurtleff's September 13\\n\\nand 27 communications. Since then, Shurtleff has not applied to\\n\\nhold any events on City grounds, with or without a flag.\\n\\n Shurtleff and Camp Constitution filed suit on July 6,\\n\\n2018, seeking injunctive relief, declaratory relief, and damages\\n\\nagainst the City and Rooney in his official capacity as\\n\\nCommissioner of the City's Property Management Division.\\n\\nAppellants aver, inter alia, that the City \\\"violated [their] First\\n\\nAmendment right to Freedom of Speech by preventing [them] from\\n\\ndisplaying the Christian flag as part of a celebration of the\\n\\nChristian community and America's Judeo-Christian heritage to be\\n\\nheld at [the City's] designated public fora at City Hall Plaza and\\n\\n[its] flagpoles.\\\" Shurtleff and Camp Constitution moved for a\\n\\npreliminary injunction on July 9, 2018. The district court heard\\n\\nargument on August 9, 2018, and issued an opinion denying their\\n\\nrequest on August 29, 2018. Shurtleff v. City of Bos., 337 F.\\n\\nSupp. 3d 66, 79 (D. Mass. 2018). Among other things, the court\\n\\nheld that the preliminary injunction could not proceed because the\\n\\n\\n -8-\\n\\f\\\"City's selection and presentation of flags on the City flagpole\\n\\nconstitute government speech,\\\" id. at 73, and government speech\\n\\nescapes scrutiny under the Free Speech Clause.\\n\\n II.\\n\\n Before it grants a preliminary injunction, a district\\n\\ncourt is required to consider (1) the movant's likelihood of\\n\\nsuccess on the merits; (2) the likelihood of the movant suffering\\n\\nirreparable harm; (3) the balance of equities; and (4) whether\\n\\ngranting the injunction is in the public interest. Díaz-\\n\\nCarrasquillo v. García-Padilla, 750 F.3d 7, 10 (1st Cir. 2014).\\n\\nAnd when faced with an interlocutory appeal, as we are in this\\n\\ncase, we review the district court's decision to deny a preliminary\\n\\ninjunction for abuse of discretion but review its findings of fact\\n\\nfor clear error and its conclusions of law de novo. Am. Freedom\\n\\nDef. Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 578 (1st\\n\\nCir. 2015). Because Shurtleff and Camp Constitution did not\\n\\n\\\"'establish a strong likelihood that they will ultimately prevail'\\n\\non the merits of their First Amendment claim[s],\\\" we affirm the\\n\\ndistrict court's denial of their request for a preliminary\\n\\ninjunction.3 Id.(quoting Sindicato Puertorriqueño de Trabajadores,\\n\\nSEIU Local 1996 v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012)).\\n\\n\\n3 Since the \\\"sine qua non of th[e] four-part inquiry is likelihood\\nof success on the merits,\\\" New Comm Wireless Servs., Inc. v.\\nSprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002), and appellants\\n\\n -9-\\n\\f III.\\n\\n The centerpiece of Shurtleff's argument on appeal is\\n\\nthat the City's choice of which flags to raise temporarily in place\\n\\nof the usual Boston flag on the City Hall Plaza flagpole at issue\\n\\ndoes not constitute government speech and that the flagpole is\\n\\ninstead a designated public forum. We tackle first his challenge\\n\\nto the district court's finding of government speech.\\n\\n A.\\n\\n Shurtleff argues that neither Walker v. Texas Division,\\n\\nSons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), nor\\n\\nPleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) -- the\\n\\npair of recent cases the district court relied on to conclude that\\n\\nthe City's choice of which flags to fly on the flagpole at issue\\n\\nis government speech -- supports a government speech label for a\\n\\nthird-party group's temporary display of a flag owned by the group.\\n\\nShurtleff explains that Summum resolved that the placement of\\n\\n\\\"permanent\\\" monuments in a public park was a form of government\\n\\nspeech, which is inapposite to \\\"temporarily\\\" raising flags on a\\n\\ncity-owned pole. Further, Shurtleff argues that Walker reaffirmed\\n\\nthe relevance of permanence for finding government speech.\\n\\n\\nfailed to meet that burden, we do not address the final three\\nfactors of the inquiry for preliminary injunctive relief. See Am.\\nFreedom Def. Initiative, 781 F.3d at 578 n.4 (following this\\napproach).\\n\\n\\n -10-\\n\\fShurtleff also maintains that the government \\\"ownership\\\" and\\n\\n\\\"control\\\" elements that the Court identified in Walker and Summum\\n\\nas creating government speech are not present for occasionally\\n\\ndisplayed third-party flags on the City Hall flagpole. We\\n\\ndisagree with each of Shurtleff's points, but before responding we\\n\\nfind it helpful to revisit in some detail the contours that the\\n\\nSupreme Court has established for the government speech doctrine.\\n\\n In Summum, the Court considered \\\"whether the Free Speech\\n\\nClause of the First Amendment entitles a private group to insist\\n\\nthat a municipality permit it to place a permanent monument in a\\n\\ncity park in which other donated monuments were previously\\n\\nerected.\\\" 555 U.S. at 464. The Free Speech Clause did not mandate\\n\\nthat result, the Court concluded, because \\\"the display of a\\n\\npermanent monument in a public park is not a form of expression to\\n\\nwhich forum analysis applies\\\" since it is \\\"best viewed as a form\\n\\nof government speech.\\\" Id. The Court reached that conclusion\\n\\nafter making three observations. First, that \\\"[g]overnments have\\n\\nlong used monuments to speak to the public.\\\" Id. at 470. Second,\\n\\nthat \\\"[p]ublic parks are often closely identified in the public\\n\\nmind with the government unit that owns the land,\\\" which is the\\n\\nreason why \\\"there is little chance that observers will fail to\\n\\nappreciate the identity of the speaker\\\" as the government when\\n\\nthey see a monument at a public park. Id. at 471-72. And third,\\n\\n\\n -11-\\n\\fthat the government \\\"has 'effectively controlled' the messages\\n\\nsent by the monuments in the Park by exercising 'final approval\\n\\nauthority' over their selection.\\\" Id. at 473 (citing Johanns v.\\n\\nLivestock Marketing Assn., 544 U.S. 550, 560-61 (2005)).\\n\\n The Court reaffirmed the Summum framework six years\\n\\nlater in Walker. That case originated after a nonprofit\\n\\norganization applied to the Texas Department of Motor Vehicles\\n\\nBoard for a specialty license plate featuring the Confederate flag.\\n\\nThe Board rejected the application, 135 S. Ct. at 2244, and members\\n\\nof the nonprofit filed suit alleging that the rejection violated\\n\\ntheir free speech rights. Not so, said the Court, holding that\\n\\n\\\"Texas's specialty license plate designs constitute government\\n\\nspeech,\\\" for which the Board was entitled to refuse issuing license\\n\\nplates that feature the Confederate flag. Id. at 2253. The Court\\n\\npinpointed three factors as relevant to identifying government\\n\\nspeech in light of Summum: (1) whether the government has\\n\\ntraditionally used the message or conduct at issue to speak to the\\n\\npublic; (2) whether persons would interpret the speech as conveying\\n\\nsome message on the government's behalf; and (3) whether the\\n\\ngovernment maintains control over the selection of the message.\\n\\nSee id. at 2247. Applying these factors, the Court concluded that\\n\\nthe license plates are government speech because (1) \\\"they long\\n\\nhave communicated messages from the States,\\\" id. at 2248; (2) they\\n\\n\\n -12-\\n\\f\\\"are often closely identified in the public mind with the [State],\\\"\\n\\nid. (citing Summum, 555 U.S. at 472); and (3) \\\"Texas maintains\\n\\ndirect control over the messages conveyed on its specialty plates,\\\"\\n\\nid. at 2249. The Court later remarked that Walker \\\"likely marks\\n\\nthe outer bounds of the government-speech doctrine.\\\" Matal v.\\n\\nTam, 137 S. Ct. 1744, 1760 (2017).\\n\\n The Summum/Walker three-part test controls here and each\\n\\nof its factors strongly favors a finding that the City engages in\\n\\ngovernment speech when it decides which flags to display in place\\n\\nof the City flag on the City Hall flagpole. This case lies well\\n\\nwithin the established bounds of the government speech doctrine.\\n\\n First, the government has long used flags to communicate\\n\\nmessages. See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319\\n\\nU.S. 624, 632 (1943) (\\\"The use of an emblem or flag to symbolize\\n\\nsome system, idea, institution, or personality, is a short cut\\n\\nfrom mind to mind. Causes and nations, political parties, lodges\\n\\nand ecclesiastical groups seek to knit the loyalty of their\\n\\nfollowings to a flag or banner . . . .\\\"); Griffin v. Sec'y of\\n\\nVeterans Affairs, 288 F.3d 1309, 1324 (Fed. Cir. 2002) (\\\"We have\\n\\nno doubt that the government engages in speech when it flies its\\n\\nown flags over a national cemetery, and that its choice of which\\n\\nflags to fly may favor one viewpoint over another.\\\"). For\\n\\ninstance, \\\"Congress has provided that the flag be flown at half-\\n\\n\\n -13-\\n\\fstaff upon the death of the President, Vice President, and other\\n\\ngovernment officials 'as a mark of respect to their memory.'\\\"\\n\\nTexas v. Johnson, 491 U.S. 397, 427 (1989) (Rehnquist, C.J.,\\n\\ndissenting) (quoting 36 U.S.C. § 175(m) (current version at 4\\n\\nU.S.C. § 7(m))). And when a visiting dignitary comes to\\n\\nWashington for a state or official visit, Blair House (the\\n\\nPresident's guest house) flies the flag of the dignitary's country.\\n\\nMary Mel French, United States Protocol 298 (2010).4\\n\\n\\n\\n\\n4 Of course, flags themselves communicate a message. In a 1944\\nPresidential Proclamation, President Franklin Roosevelt stated,\\n\\\"The flag of the United States of America is universally\\nrepresentative of the principles of justice, liberty, and\\ndemocracy enjoyed by the people of the United States.\\\"\\nProclamation No. 2605, 9 Fed. Reg. 1957 (Feb. 22, 1944). Congress\\nhas provided that the American \\\"flag represents a living country\\nand is itself considered a living thing.\\\" 4 U.S.C. § 8(j). When\\nUnited States Marines reached the top of Mount Suribachi at Iwo\\nJima, \\\"they raised a piece of pipe upright and from one end\\nfluttered a flag.\\\" Johnson, 491 U.S. at 425-26 (Rehnquist, C.J.,\\ndissenting). And troops marked their successful landing at Inchon\\nduring the Korean war with the raising of an American flag. Id.\\nat 426.\\n\\n Shurtleff's proposed flag is no different: it was designed to\\nincorporate certain Christian symbolism, including the Latin\\ncross. See Trunk v. City of San Diego, 629 F.3d 1099, 1110 (9th\\nCir. 2011) (recognizing the Latin cross as \\\"the preeminent symbol\\nof Christianity\\\"); cf. Barnette, 319 U.S. at 632 (\\\"[T]he church\\nspeaks through the Cross, the Crucifix, the altar and shrine, and\\nclerical raiment.\\\"); Salazar v. Buono, 559 U.S. 700, 747 (2010)\\n(Stevens, J., dissenting) (\\\"We have recognized the significance of\\nthe Latin cross as a sectarian symbol, and no participant in this\\nlitigation denies that the cross bears that social meaning.\\\").\\n\\n\\n -14-\\n\\f The City partakes of similar practices and has\\n\\nhistorically used the City Hall Plaza pole at issue here to convey\\n\\na message when the City flag is replaced with another flag. For\\n\\ninstance, the City flew the flag of Portugal on that pole to\\n\\nrecognize \\\"the Portuguese community's presence and importance in\\n\\nthe State of Massachusetts.\\\" The City also sometimes displays its\\n\\nmunicipal flag to signify that its mayor is present at a given\\n\\nevent. It therefore follows that the City recognizes flag flying\\n\\nas a symbolic act and that it uses flags -- in particular those\\n\\nraised on the City Hall Plaza pole -- to speak to the public.\\n\\n Next, we examine whether an observer would identify the\\n\\nCity as the \\\"speaker\\\" when she sees a third-party flag, like a\\n\\nChristian flag, raised in front of City Hall and flying alongside\\n\\nthe United States and Massachusetts flags. See Walker, 135 S. Ct.\\n\\nat 2249; Summum, 555 U.S. at 471.5 We have little doubt that the\\n\\nthird-party flag's message would be attributed to the City.\\n\\n\\n\\n\\n5 In his Summum concurrence, Justice Souter proposed using a\\n\\\"reasonable person\\\" test to analyze the attribution prong. See\\nSummum, 555 U.S. at 487 (Souter, J., concurring) (\\\"[T]o say when\\nspeech is governmental, the best approach that occurs to me is to\\nask whether a reasonable and fully informed observer would\\nunderstand the expression to be government speech, as distinct\\nfrom private speech the government chooses to oblige by allowing\\nthe monument to be placed on public land.\\\"). If the Court adopts\\nthis standard in a future case, it would be easily met here.\\n\\n\\n -15-\\n\\f If the observer arrived in time, she could well see a\\n\\nCity employee lower the Boston flag and replace it with a third\\n\\nparty's flag. The replacement flag would fly eighty-three feet\\n\\ninto the sky only steps away from the entrance to Boston's seat of\\n\\ngovernment, City Hall. That height would make the flag visible\\n\\nfrom far away, even from places that have no view of what is\\n\\nhappening on the plaza below. And the third-party flag would keep\\n\\ncompany with the United States flag and the flag of the\\n\\nCommonwealth of Massachusetts, two powerful governmental symbols.\\n\\n\\\"In this context, there is little chance that observers will fail\\n\\nto appreciate the identity of the speaker\\\" as being the City.\\n\\nSummum, 555 U.S. at 471.\\n\\n Lastly, we assess if the City maintains control over the\\n\\nselection of the messages it conveys on its City Hall flagpole.\\n\\nSee Walker, 135 S. Ct. at 2247. Shurtleff argues that, to find\\n\\ngovernment speech, Summum and Walker require the government to\\n\\ntake physical control over previously private expression, control\\n\\nevery aspect of its design and maintenance, and require\\n\\nrelinquishment of private ownership rights. We reject the\\n\\nargument as a misreading of those cases. See Sutliffe v. Epping\\n\\nSch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (finding that links\\n\\nplaced on a government website were government speech and\\n\\nemphasizing that the town \\\"controlled the content of [the] message\\n\\n\\n -16-\\n\\fby exercising final approval authority over the [] selection of\\n\\nthe hyperlinks on the website\\\"); cf. Ridley v. Mass. Bay Transp.\\n\\nAuth., 390 F.3d 65, 82 (1st Cir. 2004) (rejecting the plaintiffs'\\n\\nargument that the MBTA had created a public forum in part because\\n\\n\\\"[t]he MBTA's policy clearly evidenced an intent to maintain\\n\\ncontrol over the forum\\\").\\n\\n The record is clear that the City owns the flagpole at\\n\\nissue and that it controls which third-party flags are raised in\\n\\nplace of the City flag. Interested persons and organizations must\\n\\napply to the City for a permit before they can raise a flag on\\n\\nthis flagpole. The City's Office of Property and Construction\\n\\nManagement then reviews all applications to ensure that they comply\\n\\nwith governing guidelines, and the Commissioner of Property\\n\\nManagement himself screens flag-raising requests for the pole at\\n\\nissue to ensure that those requests are \\\"consistent with the City's\\n\\nmessage, policies, and practices.\\\" And unlike many other public\\n\\nspaces controlled by a permitting process, for access to which the\\n\\nCity might grant thousands of applications a year, the flagpole at\\n\\nissue is only rarely occupied by a third-party flag. Appellant's\\n\\ncomplaint lists only fifteen instances, over a period of years, in\\n\\nwhich the City has granted a third party's flag-flying request.\\n\\nThat rarity highlights the City's tight control over the flagpole\\n\\nin question and that it engages in symbolic speech as to the\\n\\n\\n -17-\\n\\freplacement flags it allows. Moreover, the absence of a written\\n\\npolicy outlining the content of the flags that may be raised on\\n\\nCity Hall Plaza is irrelevant to the government speech analysis.\\n\\nSummum, 555 U.S. at 473 (finding that the City there effectively\\n\\ncontrolled its message even though it did not adopt an express\\n\\npolicy as to which monuments it would accept or reject until after\\n\\nrejecting the plaintiff's proposed monument); see also Sutliffe,\\n\\n584 F.3d at 332 (noting that the absence of a written policy is\\n\\n\\\"irrelevant to whether the [City's] actions constitute government\\n\\nspeech\\\").\\n\\n A straightforward assessment under the Summum/Walker\\n\\nfactors thus requires us to conclude that the City's decision about\\n\\nwhich flags to display on the flagpole at issue is likely\\n\\ngovernment speech. However, as we noted before, Shurtleff insists\\n\\nthat the flagpole cannot convey government speech because the flags\\n\\nraised on it are those of third parties and they are only displayed\\n\\ntemporarily. This argument is unavailing. First, the fact that\\n\\nthe flags are privately owned (or at least not owned by the City)\\n\\nchanges nothing because the City enjoys the \\\"same freedom to\\n\\nexpress its views when it receives assistance from private sources\\n\\nfor the purpose of delivering a government-controlled message\\\"\\n\\nlike that which the City Hall flagpole communicates. Summum, 555\\n\\nU.S. at 468. Second, Shurtleff is wrong to suggest that permanence\\n\\n\\n -18-\\n\\fis required for there to be government speech. Shurtleff contends\\n\\nthat the Summum Court emphasized the permanent nature of monuments\\n\\nas supporting a finding of government speech, and that Walker\\n\\nreiterated the relevance of permanence in government speech\\n\\nanalysis. But the Walker Court actually clarified that permanence\\n\\nis not a necessary element of its government speech framework.6\\n\\nSee Walker, 135 S. Ct. at 2249 (\\\"That is not to say that every\\n\\nelement of our discussion in Summum is relevant here. For\\n\\ninstance, in Summum we emphasized that monuments were 'permanent'\\n\\n. . . .\\\").\\n\\n Shurtleff argues that this is a case in which the City\\n\\nis using government speech doctrine \\\"as a subterfuge for favoring\\n\\ncertain private speakers over others based on viewpoint,\\\" Summum,\\n\\n555 U.S. at 473, or as a means of \\\"silenc[ing] or muffl[ing] the\\n\\nexpression of disfavored viewpoints,\\\" Matal, 137 S. Ct. at 1758.\\n\\nWe think not. The record shows that the City has \\\"regularly\\\"\\n\\ngranted permission for religious events to be held on City Hall\\n\\nPlaza. And the City has not refused Shurtleff permission to hold\\n\\n\\n\\n6 We also note that Shurtleff's argument takes Summum's discussion\\nof permanence out of context. There, it was important that the\\nmonuments were permanent because public parks could \\\"accommodate\\nonly a limited number of permanent monuments.\\\" Summum, 555 U.S.\\nat 478. Thus, the real issue was not permanence, but space. See\\nWalker, 135 S. Ct. at 2261 (Alito, J., dissenting) (\\\"A final factor\\nthat was important in Summum was space.\\\").\\n\\n\\n -19-\\n\\fan event at City Hall Plaza that celebrates Christianity and\\n\\nincludes speeches by local clergy. Nor has it refused him the\\n\\nopportunity to request to raise a flag that conforms with City\\n\\npolicy.\\n\\n We now turn to Shurtleff's argument that the government\\n\\nspeech doctrine is inapplicable here because the City has\\n\\ndesignated the flagpole as a public forum. Shurtleff's success\\n\\non this theory is also unlikely because that argument is precluded\\n\\nby our government-speech finding. Walker, 135 S. Ct. at 2250\\n\\n(\\\"Because the State is speaking on its own behalf, the First\\n\\nAmendment strictures that attend the various types of government-\\n\\nestablished forums do not apply.\\\").\\n\\n However, the argument also fails under traditional\\n\\npublic-forum analysis. \\\"The government does not create a public\\n\\nforum by inaction or by permitting limited discourse, but only by\\n\\nintentionally opening a nontraditional forum for public\\n\\ndiscourse.\\\" Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473\\n\\nU.S. 788, 802 (1985). To ascertain if the City has designated the\\n\\nflagpole as a public forum, we look to the City's \\\"policy and\\n\\npractice\\\" and may also consider \\\"the nature of the [flagpole] and\\n\\nits compatibility with expressive activity.\\\" See id. However,\\n\\n\\\"[w]e will not find that a public forum has been created in the\\n\\nface of clear evidence of a contrary intent . . . nor will we infer\\n\\n\\n -20-\\n\\fthat the government intended to create a public forum when the\\n\\nnature of the property is inconsistent with expressive activity.\\\"\\n\\nId. at 803.\\n\\n In Shurtleff's view, the City Hall pole at issue is a\\n\\ndesignated public forum because the application to request a permit\\n\\nfor its use states that, \\\"[w]here possible, the Office of Property\\n\\nand Construction Management seeks to accommodate all applicants\\n\\nseeking to take advantage of the City of Boston's public forums.\\\"\\n\\nBut other than that statement, the record is barren of any\\n\\nindication that the City \\\"intentionally open[ed] a nontraditional\\n\\nforum,\\\" on that flagpole, \\\"for public discourse.\\\" Sutliffe, 584\\n\\nF.3d at 333 (citing Del Gallo v. Parent, 557 F.3d 58, 72 (1st Cir.\\n\\n2009)). Instead, the record contains clear evidence suggesting\\n\\nthat the City did not intend to create a public forum in the choice\\n\\nof which flags to fly from that pole. As we have noted before,\\n\\nthe City strictly controls which third-party flags are raised on\\n\\nthe City Hall pole, with the Commissioner of Property Management\\n\\nscreening all proposed flags for \\\"consisten[cy] with the City's\\n\\nmessage, policies, and practices.\\\" The City has articulated a\\n\\npolicy of not flying non-secular flags in place of the City flag\\n\\nand its rejection of Shurtleff's flag-flying request is consistent\\n\\nwith that policy.\\n\\n\\n\\n\\n -21-\\n\\f Moreover, the nature of this flagpole is also\\n\\ninconsistent with unregulated expressive activity. City Hall\\n\\nPlaza has three flagpoles, and only one of these is occasionally\\n\\navailable for the temporary use of the flags of qualifying third\\n\\nparties. The Plaza, therefore, may only accommodate a very\\n\\nlimited number of flag-flying requests. The City may reasonably\\n\\nconclude that opening the pole for widespread public use could\\n\\ncreate disruptions that compromise the access and operations of\\n\\nCity Hall. Cf. Summum, 555 U.S. at 478 (noting that \\\"[t]he forum\\n\\ndoctrine has been applied in situations in which government-owned\\n\\nproperty or a government program was capable of accommodating a\\n\\nlarge number of public speakers without defeating the essential\\n\\nfunction of the land or the program\\\"). Accordingly, Shurtleff's\\n\\nargument that the choice of flag cannot be government speech\\n\\nbecause the City has designated the flagpole as a public forum\\n\\nlacks any likelihood of success.\\n\\n Considering the foregoing and the record as it is at\\n\\npresent, we find that the City's choice of which flags to raise on\\n\\nthe flagpole at issue likely conveys government speech. And\\n\\nbecause this is the case, the City retains the ability not to\\n\\npromote or be associated with certain flags flown in place of the\\n\\nCity flag on the flagpole in dispute. Thus, Shurtleff and Camp\\n\\nConstitution failed to establish a likelihood of success on their\\n\\n\\n -22-\\n\\ffree speech claim against the City. See Summum, 555 U.S. at 467\\n\\n(\\\"The Free Speech Clause restricts government regulation of\\n\\nprivate speech; it does not regulate government speech.\\\" (citing\\n\\nJohanns, 544 U.S. at 553)).7\\n\\n B.\\n\\n Our final task is to review the district court's\\n\\ndetermination that Shurtleff's Establishment Clause claim is\\n\\nunlikely to succeed.\\n\\n Shurtleff argues that the City violated the\\n\\nEstablishment Clause by excluding Camp Constitution's religious\\n\\nspeech while flying what he calls \\\"other religious flags.\\\" He\\n\\nalleges, for example, that the City has flown the flag of Portugal\\n\\nand the Bunker Hill Association flag, which both contain some\\n\\nreligious symbols. But a flag that references religion by using\\n\\nreligious symbols in part of its field is not itself a religious\\n\\nflag. And as appellants conceded at oral argument and is also\\n\\nevident from the record, there is no evidence that the City has\\n\\never raised the flag of any religion on the flagpole at issue.\\n\\n\\n7 We also note that, in making choices about which flags to allow\\nas temporary replacements for the City flag, the City and its\\nofficials are subject to \\\"the democratic electoral process.\\\"\\nWalker, 135 S. Ct. at 2245; Sutliffe, 584 F.3d at 331 n.9 (\\\"If the\\nvoters do not like those in governance or their government speech,\\nthey may vote them out of office or limit the conduct of those\\nofficials 'by law, regulation, or practice.'\\\" (quoting Summum,\\n555 U.S. at 468) (citation omitted)).\\n\\n\\n -23-\\n\\fShurtleff has not established that the City's policy and practice\\n\\nshows a preference for one religion or religious denomination over\\n\\nanother.\\n\\n Next, Shurtleff claims that the City acts in\\n\\ncontravention of the Establishment Clause \\\"by allowing the\\n\\nnumerous and varied [secular] flags of a broad spectrum of private\\n\\norganizations while specifically excluding Camp Constitution's\\n\\n'non-secular' flag.\\\" But the \\\"secular\\\" flags -- really, flags of\\n\\nsecular organizations or causes -- the City has allowed to fly\\n\\ninstead of the City flag do not show that the City has espoused a\\n\\npreference for non-religion over religion. And the record\\n\\ncontains no evidence that would suggest otherwise. Thus, in light\\n\\nof the current record, we agree with the district court that the\\n\\nlikelihood of success of Shurtleff's Establishment Clause claim is\\n\\ndim.\\n\\n IV.\\n\\n For the reasons explained above, the district court did\\n\\nnot abuse its discretion in denying Shurtleff's request for a\\n\\npreliminary injunction and its judgment is affirmed.\\n\\n Affirmed.\\n\\n\\n\\n\\n -24-\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2388,"cells":{"id":{"kind":"number","value":4634778,"string":"4,634,778"},"name":{"kind":"string","value":"METZLER ASSET MANAGEMENT GMBH, on Behalf of Itself and All Other Similarly Situated Parties; Erste-Sparinvest Kapitalanlagegesellschaft mbH, on Behalf of Itself and All Other Similarly Situated Parties, Plaintiffs, Appellants/Cross-Appellees, v. Stuart A. KINGSLEY; George A. Scangos; Paul J. Clancy ; Biogen Inc., Defendants, Appellees/Cross-Appellants."},"name_abbreviation":{"kind":"string","value":"Metzler Asset Mgmt. GMBH v. Kingsley"},"decision_date":{"kind":"string","value":"2019-06-27"},"docket_number":{"kind":"string","value":"18-1369P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Stahl, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARRON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNos. 18-1369, 18-1472\\n\\nMETZLER ASSET MANAGEMENT GMBH, on behalf of itself and all other\\n similarly situated parties;\\n\\n ERSTE-SPARINVEST KAPITALANANLAGEGESELLSCHAFT MBH, on behalf of\\n itself and all other similarly situated parties,\\n\\n Plaintiffs, Appellants/Cross-Appellees,\\n\\n v.\\n\\n STUART A. KINGSLEY; GEORGE A. SCANGOS; PAUL J. CLANCY;\\n BIOGEN INC.,\\n\\n Defendants, Appellees/Cross-Appellants.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. F. Dennis Saylor, IV, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Stahl, and Barron,\\n Circuit Judges.\\n\\n\\n Gregg S. Levin, with whom Christopher F. Moriarity, William\\nH. Narwold, Motley Rice LLC, Jonathan Gardner, Labaton Sucharow\\nLLP, Robert M. Rothman, Mark T. Millkey, Susan K. Alexander, Andrew\\nS. Love, and Robbins Geller Rudman & Dowd LLP were on brief, for\\nappellants/cross-appellees.\\n James R. Carroll, with whom Michael S. Hines, Sara J. van\\nVliet, and Skadden, Arps, Slate, Meagher & Flom LLP were on brief,\\nfor appellees/cross-appellants.\\n\\fJune 27, 2019\\n\\f BARRON, Circuit Judge. Metzler Asset Management GmbH\\n\\n(\\\"Metzler\\\") and Erste–Sparinvest Kapitalanlagegesellschaft mbH\\n\\n(\\\"Erste–Sparinvest\\\") have been designated the lead plaintiffs,\\n\\npursuant to the Private Securities Litigation Reform Act\\n\\n(\\\"PSLRA\\\"), 15 U.S.C. § 78u-4, in a federal securities class action\\n\\nthat they brought against Biogen Inc. and three Biogen executives\\n\\n(\\\"Biogen\\\"). The suit alleges that Biogen and its executives\\n\\ncommitted fraud, in violation of regulations promulgated by the\\n\\nSecurities and Exchange Commission pursuant to the Securities\\n\\nExchange Act, 15 U.S.C. § 78a et seq, by falsely stating that\\n\\nBiogen's product, Tecfidera, was both safer and more widely used\\n\\nthan it was. The putative class is comprised of all purchasers of\\n\\nBiogen common stock from July 23, 2014, through July 23, 2015.\\n\\n The defendants moved to dismiss the suit on claim\\n\\npreclusion grounds, based on this Court's earlier decision in In\\n\\nre Biogen Inc. Securities Litigation, 857 F.3d 34 (1st Cir. 2017)\\n\\n(\\\"Biogen I\\\"), and for failing to plead facts \\\"giving rise to a\\n\\nstrong inference\\\" of scienter, 15 U.S.C. § 78u-4(b)(2)(A), as the\\n\\nPSLRA requires that a complaint alleging fraud must in order for\\n\\nit to survive such a motion. The District Court rejected the\\n\\ndefendants' claim preclusion argument but dismissed the suit under\\n\\nthe PSLRA for failing to adequately plead scienter. We affirm.\\n\\n\\n\\n\\n - 3 -\\n\\f I.\\n\\n The corporate defendant, Biogen, is a multinational\\n\\nbiotechnology company based in Cambridge, Massachusetts. Its\\n\\nstock trades on the NASDAQ. Id. at 37. The three individual\\n\\ndefendants are George Scangos, who was Biogen's Chief Executive\\n\\nOfficer from July 23, 2014, through July 23, 2015; Paul Clancy,\\n\\nwho was Biogen's Chief Financial Officer and Executive Vice\\n\\nPresident of Finance during that time; and Stuart Kingsley, who\\n\\nwas its Executive Vice President of Global Commercial Operations\\n\\nduring the same period. Id.\\n\\n The plaintiffs' complaint sets forth the following\\n\\nallegations. Biogen developed and sold a United States Food and\\n\\nDrug Administration (\\\"FDA\\\") approved drug for multiple sclerosis\\n\\n(\\\"MS\\\") called Tecfidera during the relevant time period. Tecfidera\\n\\naccounted for a third of Biogen's total revenue in this time frame.\\n\\nAs of July 23, 2014, Tecfidera bore a label that warned patients\\n\\ntaking the drug of an increased risk of developing lymphopenia -- a\\n\\ncondition of having low lymphocyte counts, leading to a weakened\\n\\nimmune system.\\n\\n On October 22, 2014, Biogen held a third-quarter\\n\\nearnings call with its investors. The company announced for the\\n\\nfirst time publicly that an MS patient who had been regularly\\n\\ntaking Tecfidera had died of progressive multifocal\\n\\nleukoencephalopathy (\\\"PML\\\"), a rare neurological disease which\\n\\n\\n - 4 -\\n\\fcounts lymphopenia as one of its precursors. One month later,\\n\\nBiogen amended the Tecfidera label to include a warning about the\\n\\nrisk of PML.\\n\\n On January 29, 2015, Biogen provided full-year revenue\\n\\nguidance for 2015. It predicted a 14% to 16% overall growth rate\\n\\nfor the company for the year. However, on April 24, 2015, Biogen\\n\\nreleased first-quarter financial results for the year that showed\\n\\nthat Tecfidera's revenue had fallen below the market estimates.\\n\\n On July 24, 2015, Biogen released its second-quarter\\n\\nearnings report. The report amended the company's 2015 revenue\\n\\nguidance. It lowered Biogen's predicted revenue growth from 14-16%\\n\\nto 6-8% for the year. Biogen attributed its tempered expectations,\\n\\nin part, to slowing Tecfidera growth.\\n\\n Biogen's stock fell by more than 20% in one day due to\\n\\nthe second quarter earnings report. On October 9, 2015, Biogen\\n\\nannounced that Kingsley was leaving the company. Less than two\\n\\nweeks later, the company announced that it was cutting roughly 11%\\n\\nof its workforce. Id. at 39.\\n\\n On August 18, 2015, a putative federal securities fraud\\n\\nclass action was filed in the District of Massachusetts against\\n\\nthe company and the same three individual defendants in the case\\n\\nbefore us in this appeal. Id. at 36-39. The putative class in\\n\\nthat action consisted of persons who had purchased common stock of\\n\\nBiogen between January 29, 2015, and July 23, 2015. Tehrani v.\\n\\n\\n - 5 -\\n\\fBiogen, Inc., No. 15-13189, 2015 WL 7302132, at *1 (D. Mass. Nov.\\n\\n18, 2015). The suit alleged that Biogen and the three executives\\n\\nhad fraudulently misled investors, in violation of Sections 10(b)1\\n\\nand 20(a)2 of the Securities Exchange Act of 1934, see 15 U.S.C.\\n\\n§§ 78j(b), 78t(a), regarding Tecfidera's usage rates in light of\\n\\nthe PML incident. Tehrani, 2015 WL 7302132, at *1.\\n\\n Notice of the action was published pursuant to the PSLRA,\\n\\nwhich establishes procedures for bringing securities class\\n\\nactions. See id. at *2. In accordance with those procedures, on\\n\\nNovember 17, 2015, the District Court preliminarily appointed GBR\\n\\nGroup Ltd. (\\\"GBR\\\") \\\"lead plaintiff\\\" in the matter, a status that\\n\\nCongress created in the PSLRA \\\"to increase the chances that\\n\\nsecurities fraud cases are brought by investors who have\\n\\nsubstantial and genuine interests in the litigation.\\\" Id.\\n\\n On January 19, 2016, GBR filed an amended complaint.\\n\\nThe amended complaint changed the class period, such that it ran\\n\\nfrom December 2, 2014, through July 23, 2015. Biogen I, 857 F.3d\\n\\nat 36.\\n\\n\\n 1\\n Section 10(b), as set forth in 15 U.S.C. § 78j(b), makes it\\nunlawful \\\"[t]o use or employ, in connection with the purchase or\\nsale of any security . . . any manipulative or deceptive device or\\ncontrivance in contravention of such rules and regulations as the\\nCommission may prescribe.\\\"\\n 2\\n Section 20(a), as set forth in 15 U.S.C. § 78t(a), creates\\n\\\"[j]oint and [s]everal\\\" liability for \\\"[e]very person who,\\ndirectly or indirectly, controls any person liable under any\\nprovision of this chapter or of any rule or regulation thereunder.\\\"\\n\\n\\n - 6 -\\n\\f Biogen moved to dismiss the complaint. The District\\n\\nCourt granted that motion as to both the Section 10(b) and 20(a)\\n\\nclaims. See Biogen I, 193 F. Supp. 3d 5, 56 (D. Mass. 2016).\\n\\n GBR moved to vacate the order of dismissal and for leave\\n\\nto file a second amended complaint with the District Court under\\n\\nFederal Rules 59(e) and 60(b)(2). In re Biogen Inc. Sec. Litig.,\\n\\nNo. 15-13189, 2016 WL 5660329, at *3 (D. Mass. Sept. 28, 2016).\\n\\nThe motion requested that the District Court vacate the order of\\n\\ndismissal based on the new scienter allegations in the proposed\\n\\nsecond amended complaint. Id. The District Court denied the\\n\\nmotion. Id. at *6. The District Court determined that the\\n\\nplaintiffs could have discovered the evidence on which they were\\n\\nbased earlier with reasonable diligence. Id.\\n\\n GBR appealed both the dismissal of the complaint for\\n\\nfailure to state a claim as well as the denial of its motion to\\n\\nvacate that dismissal and for leave to file the second amended\\n\\ncomplaint. As discussed below, that appeal ultimately ended in\\n\\naffirmance of the District Court. During the pendency of the\\n\\nappeal in that case, however, separate Biogen stockholders filed\\n\\na subsequent putative class action in the District Court on October\\n\\n20, 2016, against Biogen and certain of its executives on behalf\\n\\nof a class of investors in the company. Metzler Asset Mgmt. GmbH\\n\\nv. Kingsley (\\\"Biogen II\\\"), 305 F. Supp. 3d 181, 205, 202 (D. Mass.\\n\\n2018). They alleged that, through its comments to investors,\\n\\n\\n - 7 -\\n\\fBiogen misled the market about Tecfidera's safety profile and\\n\\ndiscontinuation rates.\\n\\n This new action is the one before us on appeal. It,\\n\\ntoo, asserts violations of Sections 10(b) and 20(a) of the\\n\\nSecurities Exchange Act. Nonetheless, it differs from the first\\n\\nputative class action that had been filed against Biogen in three\\n\\nways. First, the class period for the putative class in the new\\n\\nsuit began on July 23, 2014, as opposed to December 2, 2014.\\n\\nSecond, the complaint in the new suit alleged that Biogen had made\\n\\nadditional misleading statements not referenced in the prior suit\\n\\nand also set forth statements from confidential witnesses (\\\"CWs\\\")\\n\\nto prove scienter that had not been referenced in the complaint in\\n\\nthe earlier suit. These newly alleged statements included ones\\n\\nthat had been set forth in the amended complaint in the earlier\\n\\nputative class action that the District Court rejected for not\\n\\nhaving been included in a timely manner. See Biogen I, 857 F.3d\\n\\nat 45-46. Third, the new suit alleged that, in addition to making\\n\\nfraudulent statements regarding Tecfidera's usage rate, Biogen\\n\\nexecutives also made fraudulent statements about the drug's safety\\n\\nprofile.\\n\\n On February 1, 2017, the District Court preliminarily\\n\\nappointed Metzler and Erste–Sparinvest -- not GBR -- to be the\\n\\nlead plaintiffs in this new suit pursuant to the PSLRA. See\\n\\nMetzler Asset Mgmt. GmbH v. Kinglsey, No. 16-12101, 2017 WL 438731\\n\\n\\n - 8 -\\n\\f(D. Mass. Feb. 1, 2017). Plaintiffs also filed a motion to stay\\n\\nthe District Court proceedings pending resolution of the appeal of\\n\\nthe earlier action. That motion was denied. Id. at *4.\\n\\n On May 12, 2017, we affirmed the District Court's order\\n\\nof dismissal for lack of sufficient allegations of scienter in\\n\\nBiogen I. Biogen I, 857 F.3d at 46. In so doing, we also held\\n\\nthat the confidential witness statements provided by the\\n\\nplaintiffs were \\\"insufficiently particular\\\" to prove scienter.\\n\\nId. at 41. Finally, we denied the plaintiffs' motion to vacate\\n\\nand file a second amended complaint. Id. at 45.\\n\\n Following Biogen I, Biogen moved to dismiss the\\n\\ncomplaint in the putative class action that is now before us for\\n\\nfailing to adequately plead scienter and on claim preclusion\\n\\ngrounds. The District Court rejected the claim preclusion argument\\n\\nbut agreed that the complaint in the new suit failed to plead facts\\n\\nsufficient to create a strong inference of scienter. Biogen II,\\n\\n305 F. Supp. 3d at 205, 222. The appeal from that ruling then\\n\\nfollowed.\\n\\n II.\\n\\n To establish claim preclusion, the defendant must show\\n\\nthat \\\"(1) the earlier suit resulted in a final judgment on the\\n\\nmerits, (2) the causes of action asserted in the earlier and later\\n\\nsuits are sufficiently identical or related, and (3) the parties\\n\\nin the two suits are sufficiently identical or closely related.\\\"\\n\\n\\n - 9 -\\n\\fAirframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 14 (1st Cir.\\n\\n2010). The District Court rejected Biogen's claim preclusion\\n\\nargument. See Biogen II, 305 F. Supp. 3d at 205. The District\\n\\nCourt did not question whether Biogen I represented a final\\n\\njudgment, as it plainly did. Id. at 204. Nor did the District\\n\\nCourt rule that that the causes of action in the two cases were\\n\\nnot related or identical, as it found that they were. Id. Instead,\\n\\nthe District Court rejected the contention that GBR, as lead\\n\\nplaintiff under the PSLRA in Biogen I, could \\\"adequate[ly]\\n\\nrepresent\\\" the class in Biogen II, such that the plaintiffs in the\\n\\ntwo actions may be deemed to be sufficiently \\\"identical,\\\" as they\\n\\nmust be for claim preclusion to apply. Id. at 205.\\n\\n The District Court explained that the putative class in\\n\\nBiogen I was not certified through Federal Rule of Civil Procedure\\n\\n23 and thus remained merely a \\\"proposed class action[.]\\\" Id.\\n\\n(citing Smith v. Bayer Corp., 564 U.S. 299, 316 (2011)). For that\\n\\nreason, the District Court ruled, GBR could not, by virtue of its\\n\\nrole as the lead plaintiff under the PSLRA in Biogen I, be deemed\\n\\nto have \\\"adequate[ly] represented\\\" the putative class in Biogen\\n\\nII.\\n\\n In reaching this conclusion about whether the members of\\n\\nthe putative class in Biogen II were adequately represented by GBR\\n\\nin Biogen I, the District Court relied on the Supreme Court's\\n\\nruling in Smith. There, the Supreme Court held that a consumer's\\n\\n\\n - 10 -\\n\\fmotion for class certification was not precluded by a previous\\n\\ndecision denying a similar motion for class certification to a\\n\\ndifferent party. Smith, 564 U.S. at 304-05. The Court stated,\\n\\n\\\"[w]e could hardly have been more clear [in Taylor v. Sturgell,\\n\\n553 U.S. 880 (2008)] that a 'properly conducted class action,'\\n\\nwith binding effect on nonparties, can come about in federal courts\\n\\nin just one way -- through the procedure set out in Rule 23.\\\" Id.\\n\\nat 316.\\n\\n Biogen argues that the District Court erred in this\\n\\naspect of its claim preclusion analysis. Biogen contends that the\\n\\nPSLRA's process for appointing a lead plaintiff sufficed to ensure\\n\\nthat GBR, in its role as lead plaintiff of the putative class in\\n\\nBiogen I, did adequately represent the interests of the putative\\n\\nclass in Biogen II, even though the class in Biogen I had not been\\n\\ncertified at the time of the dismissal of that action. Thus,\\n\\nBiogen contends that the dismissal in Biogen I could be preclusive\\n\\nof the claims brought by the putative class in Biogen II, even\\n\\nthough GBR is not the lead plaintiff for that putative class.\\n\\n In challenging Biogen's claim preclusion argument, the\\n\\nappellants contend that the protections afforded absent parties by\\n\\nthe PSLRA are not as robust as those afforded by the requirements\\n\\nset forth in Rule 23 itself, due to the preliminary nature of the\\n\\nPSLRA's lead plaintiff appointment procedures. Indeed, as\\n\\nmultiple courts have recognized, nothing about lead plaintiff\\n\\n\\n - 11 -\\n\\fappointment pursuant to the PSLRA is \\\"dispositive with respect to\\n\\nthe ultimate certification of the class and designation of a class\\n\\nrepresentative.\\\" Greebel v. FTP Software, Inc., 939 F. Supp. 57,\\n\\n62 n.4 (D. Mass 1996); Dempsey v. Vieau, 130 F. Supp. 3d 809, 813\\n\\n(S.D.N.Y. 2015) (\\\"Lead plaintiff designation does not abnegate the\\n\\nnecessity of class certification . . . .\\\"). Consequently, the\\n\\nargument proceeds, lead plaintiff appointment pursuant to the\\n\\nPSLRA is simply too preliminary for a lead plaintiff of an\\n\\nas-yet-uncertified class to be deemed on that basis alone to be an\\n\\nadequate representative for claim preclusion purposes of a class\\n\\nin a subsequent action. Dempsey, 130 F. Supp. 3d at 813.\\n\\n In addition to this potential problem with Biogen's\\n\\nclaim preclusion contention here, there is another that is more\\n\\nparticular to this case. The proposed class in Biogen II includes\\n\\nstockholders who purchased Biogen securities between July 23,\\n\\n2014, and December 2, 2014. This group of purchasers was not\\n\\nincluded in the class proposed in Biogen I. Biogen does not\\n\\nexplain how the lead plaintiff in Biogen I could be thought to\\n\\nhave adequately represented those members of the proposed class in\\n\\nBiogen II who are not only represented by different lead plaintiffs\\n\\nbut also were not even members of the putative class in Biogen I.\\n\\n We need not, however, resolve the claim preclusion issue\\n\\ndefinitively here. Even if we were to assume that the adequate\\n\\nrepresentation requirement could not be satisfied here, such that\\n\\n\\n - 12 -\\n\\fthe plaintiffs' claim is not precluded, the suit in Biogen II would\\n\\nstill have to be dismissed. As we next explain, the District Court\\n\\nproperly ruled that, under the PSLRA, the plaintiffs failed to\\n\\nadequately plead scienter for purposes of surviving a motion to\\n\\ndismiss for failure to state a claim.\\n\\n III.\\n\\n To state a claim under Section 10(b)3 of the Securities\\n\\nExchange Act, plaintiffs must adequately plead \\\"(1) a material\\n\\nmisrepresentation or omission; (2) scienter; (3) a connection with\\n\\nthe purchase or sale of a security; (4) reliance; (5) economic\\n\\nloss; and (6) loss causation.\\\" Biogen I, 857 F.3d at 41. Scienter\\n\\nis defined as either the \\\"intentional or willful conduct designed\\n\\nto deceive or defraud investors\\\" or \\\"a high degree of\\n\\nrecklessness.\\\" Id. (internal quotations omitted).\\n\\n Under the PSLRA, to survive a motion to dismiss for\\n\\nfailure to state a claim, plaintiffs must \\\"state with particularity\\n\\nfacts giving rise to a strong inference that the defendant acted\\n\\nwith [scienter].\\\" 15 U.S.C. § 78u-4(b)(2)(A) (emphasis added).\\n\\n\\\"For an inference of scienter to be strong, 'a reasonable person\\n\\n\\n 3 As the plaintiffs' Section 20(a) claims are necessarily\\ndependent on the existence of a Section 10(b) violation, our\\nanalysis need only address the deficiencies in the plaintiffs'\\nSection 10(b) claims in order to uphold the District Court's\\ndecision. See ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46,\\n67 (1st Cir. 2008) (\\\"The plain terms of [S]ection 20(a) indicate\\nthat it only creates liability derivative of an underlying\\nsecurities violation.\\\").\\n\\n\\n - 13 -\\n\\fwould [have to] deem [it] cogent and at least as compelling as any\\n\\nopposing inference one could draw from the facts alleged.'\\\" Biogen\\n\\nI, 857 F.3d at 41 (alterations in original) (quoting Tellabs, Inc.\\n\\nv. Makor Issues & Rights, Ltd., 551 U.S. 308, 324 (2007)).\\n\\n The District Court dismissed the plaintiffs' suit in\\n\\nBiogen II after determining that none of the statements that the\\n\\nplaintiffs allege that the individual Biogen executive defendants\\n\\nmade were of a kind that could give rise to the \\\"strong inference\\\"\\n\\nof scienter that the PSLRA requires. On that basis, the District\\n\\nCourt concluded that the claims against each of these executives\\n\\nindividually, as well as the claims against Biogen itself, must be\\n\\ndismissed. Cf. Biogen I, 857 F.3d at 37, 41. Our review of the\\n\\nDistrict Court's ruling on scienter is de novo. See id. at 41.\\n\\n To make their case on appeal, the plaintiffs focus on\\n\\nsix statements in their complaint that the District Court held, in\\n\\nmaking its scienter ruling, were at least \\\"plausibly misleading.\\\"\\n\\nBiogen II, 305 F. Supp. 3d at 206, 212.4 These statements fall\\n\\ninto two general categories: (1) those that pertain to Tecfidera's\\n\\n\\n\\n\\n 4 For the purpose of this appeal, we will assume, favorably\\nto plaintiffs, that the District Court was correct in concluding\\nthat these six statements were, in fact, \\\"plausibly misleading.\\\"\\nAlthough we do not definitively conclude that these six statements\\nare plausibly misleading, we will nonetheless refer to them\\nthroughout the opinion as the six \\\"plausibly misleading\\\"\\nstatements for clarity's sake.\\n\\n\\n - 14 -\\n\\fsafety profile, and (2) those that pertain to Tecfidera's usage\\n\\nrate. We consider the statements in each category in turn.\\n\\n Before doing so, however, we note that although the\\n\\nstatements that we focus on were made by, respectively, Alfred\\n\\nSandrock (Biogen's Chief Medical Officer), Doug Williams (Biogen's\\n\\nExecutive Vice President of Research and Development) and\\n\\nKingsley, only Kingsley is a defendant in his own right. Thus, it\\n\\nis unclear what role, if any, the statements by Sandrock and\\n\\nWilliams serve in the plaintiffs' fraud claims against Kingsley,\\n\\nScangos, and Clancy. But, even if we assume that Williams's and\\n\\nSandrock's statements somehow could be imputed to these three\\n\\nindividual defendants, as the plaintiffs appear implicitly to\\n\\nassume in their briefing to us in contending that the District\\n\\nCourt erred in dismissing the claims against them, the plaintiffs'\\n\\nargument would still fail.\\n\\n A.\\n\\n The first category of statements on which the plaintiffs\\n\\nin this appeal rely with respect to the claims against the\\n\\nindividual defendants concerns Tecfidera's safety profile. The\\n\\nplaintiffs point to two such statements, the first of which was\\n\\nmade on September 11 by Sandrock. According to the complaint,\\n\\nSandrock stated at that time that \\\"Tecfidera continues to provide\\n\\npatients with effective oral treatment for MS that is supported by\\n\\n\\n\\n\\n - 15 -\\n\\fa growing body of data reinforcing its benefits and favorable\\n\\nsafety profile.\\\"\\n\\n The complaint alleges that Sandrock made this statement\\n\\nbefore Biogen's October announcement of the PML-related death, and\\n\\nthe plaintiffs do not contend that any of the individual defendants\\n\\nknew about that death before Sandrock made this statement.5 The\\n\\nplaintiffs nevertheless contend that the District Court erred in\\n\\nconcluding that the complaint failed adequately to allege that\\n\\nSandrock made the statement with the \\\"intentional or willful\\\"\\n\\ndesign to deceive investors.\\n\\n To make this case, the plaintiffs point out that, in\\n\\nAugust and September of 2014, Dr. Ben Thrower, the medical director\\n\\nat the Shepherd Center in Atlanta, notified Keith Ferguson, the\\n\\ncompany's senior sales director, and Eric Hall, the medical science\\n\\nliaison for Biogen, that his research showed that patients who\\n\\nwere taking Tecfidera had a higher risk of developing low\\n\\nlymphocyte counts than Biogen had originally disclosed. The\\n\\ncomplaint further alleges that, for this reason, Dr. Thrower chose\\n\\nto discontinue Tecfidera prescriptions for approximately 200 of\\n\\nhis patients and to stop issuing new prescriptions for the drug.\\n\\n\\n 5\\n CW 15's statements that Biogen had already prepared a\\nresponse for a potential PML-related death is not to the contrary.\\nThat the company had a PML-related contingency in place for a drug\\nthat it already knew -- and disclosed -- caused low lymphocyte\\ncounts is not surprising and does not indicate that Sandrock made\\nthe statement at issue deceitfully.\\n\\n\\n - 16 -\\n\\fThe complaint also alleges that he told Ferguson and Hall about\\n\\nthis development.\\n\\n But, according to the complaint, Sandrock in his\\n\\nSeptember 2014 statement said only that Tecfidera was \\\"effective\\\"\\n\\nat treating MS and that its safety profile was \\\"supported by a\\n\\ngrowing body of data.\\\" Nothing about Dr. Thrower's alleged\\n\\nstatements to Hall and Ferguson about his own research\\n\\nfindings -- especially given the limited slice of the market on\\n\\nwhich those findings were based -- contradicts the statements that\\n\\nthe complaint alleges that Sandrock made. See Geffon v. Micrion\\n\\nCorp., 249 F.3d 29, 36 (1st Cir. 2001) (\\\"Even if the statements at\\n\\nissue were material and false or misleading, the evidence does not\\n\\nsupport a finding that defendants knew the statements would\\n\\nmaterially mislead the investing public.\\\" (emphasis omitted)).\\n\\nThus, even assuming that Sandrock's statement was \\\"plausibly\\n\\nmisleading\\\" and made with knowledge of Thrower's conclusions, we\\n\\nfind insufficient support for a \\\"strong inference\\\" that Sandrock\\n\\nspoke with the intent to deceive investors. And thus, the\\n\\nallegations regarding Sandrock fail to establish a \\\"strong\\n\\ninference\\\" of scienter as to even him, let alone as to any\\n\\nindividual defendant.\\n\\n The only other \\\"plausibly misleading\\\" statement that\\n\\nconcerns the drug's safety profile to which the plaintiffs point\\n\\nis one that, according to the complaint, Williams made in April of\\n\\n\\n - 17 -\\n\\f2015. In it, Williams allegedly stated that \\\"there's no real\\n\\nchange in the benefit/risk profile of the drug for patients with\\n\\nMS. So it's pretty much status quo at the moment.\\\"\\n\\n By April of 2015, according to the complaint, Biogen had\\n\\nalready disclosed the PML death and updated the drug's label to\\n\\naccount for the increased understanding of its risk. Given that\\n\\nnone of the findings by the researchers that the plaintiffs cite\\n\\naver that the drug was less safe than these revised disclosures,\\n\\nwe do not see how the plaintiffs can plausibly suggest that\\n\\nWilliams was aware that the drug was less safe than these revised\\n\\ndisclosures suggested. Therefore, even if, drawing all inferences\\n\\nin favor of the plaintiff, one could conclude that Williams's\\n\\nstatement -- read in a vacuum -- was misleading, one could not\\n\\ndraw a \\\"strong inference\\\" from that statement that it was said\\n\\nwith an \\\"intent to deceive,\\\" given what the record shows about\\n\\nBiogen's earlier disclosures and the state of Williams's knowledge\\n\\nof the drug's safety profile. See City of Dearborn Heights Act\\n\\n345 Police & Fire Ret. Sys. v. Waters Corp., 632 F.3d 751, 760\\n\\n(1st Cir. 2011) (\\\"[A]ttempts to provide investors with warnings of\\n\\nrisks generally weaken the inference of scienter.\\\" (alteration in\\n\\noriginal) (quoting Ezra Charitable Tr. v. Tyco Int'l, Ltd., 466\\n\\nF.3d 1, 8 (1st Cir. 2006)).\\n\\n We turn, then, to the four \\\"plausibly misleading\\\"\\n\\nstatements that pertain to Tecfidera's usage rates. All four\\n\\n\\n - 18 -\\n\\fstatements were allegedly made by Kingsley, who is an individual\\n\\ndefendant. But, we find no basis for concluding that any of these\\n\\nstatements permit us to infer the necessary intent to deceive that\\n\\ncould suffice to create the \\\"strong inference\\\" of scienter that\\n\\nthe PSLRA requires. And, even the cumulative weight of these\\n\\nstatements and the CW evidence discussed below would not suffice.\\n\\n We first address the January 29, 2015 statement by\\n\\nKingsley that \\\"Tecfidera [was] on track to become the most\\n\\nprescribed therapy for MS worldwide.\\\" The plaintiffs argue that\\n\\nthis statement was misleading and creates the \\\"strong inference\\\"\\n\\nof scienter on Kingsley's part, because at the time of the\\n\\nstatement, Kingsley knew about both the PML death and about\\n\\nTecfidera's declining sales and discontinuation rates.\\n\\n At the time that Kingsley made the statement, however,\\n\\nBiogen had already disclosed to the public the news of the PML\\n\\ndeath, had already changed the drug's label, had already publicized\\n\\nthat it expected the drug's growth rate to \\\"slow,\\\" and had already\\n\\ndisclosed that the drug's discontinuation rates were higher than\\n\\nexpected. Moreover, during the conference call on which Kingsley\\n\\nmade the statement at issue, he also noted that the company had\\n\\nobserved \\\"moderating\\\" growth for the drug at the end of 2014 and\\n\\nexpected that trend to continue into the new year. Given these\\n\\ndisclosures pointing against sales growth, it is hard to\\n\\ncharacterize Kingsley's statement that he believed Tecfidera would\\n\\n\\n - 19 -\\n\\f\\\"become the most-prescribed therapy for MS worldwide\\\" as anything\\n\\nother than misguided optimism. See Fire & Police Pension Ass'n of\\n\\nColo. v. Abiomed, Inc., 778 F.3d 228, 244 (1st Cir. 2015) (holding\\n\\nthat defendants' informative disclosures \\\"undercut any inference\\n\\nof scienter\\\"). Accordingly, we fail to see how one could\\n\\ncharacterize Kingsley as having had the requisite intent to deceive\\n\\nwhen he made this statement, such that one could draw the \\\"strong\\n\\ninference\\\" of scienter required by the PSLRA.\\n\\n We, turn, then, to three statements of Kingsley's from\\n\\nJanuary 29, 2015, to February 25, 2015, in which, according to the\\n\\ncomplaint, he stated that there had not been any \\\"meaningful\\n\\nchange\\\" in Tecfidera's discontinuation rates and that those rates\\n\\nwere \\\"consistent with historical averages.\\\" As previously\\n\\nmentioned, at the time that Kingsley made these statements, the\\n\\ncompany had already disclosed to investors that Tecfidera's\\n\\ndiscontinuation rate was higher than Biogen would have hoped but\\n\\nthat the company aimed to \\\"get better performance in the\\n\\ndiscontinuation rates over a longer period of time.\\\" Given the\\n\\nstatements in which Kingsley had been forthcoming about the status\\n\\nof Tecfidera's discontinuation rates, we do not see how Kingsley's\\n\\nearly 2015 refrain that the company had not seen \\\"meaningful\\n\\nchange\\\" in the drug's discontinuation rate and that the rates were\\n\\n\\\"consistent with historical averages\\\" may fairly be characterized\\n\\nas having been made with the \\\"intent to deceive.\\\" Id.\\n\\n\\n - 20 -\\n\\f In arguing otherwise, plaintiffs point to statements set\\n\\nforth in the complaint that were allegedly made by CWs. The\\n\\ncomplaint contains statements made by seventeen CWs regarding\\n\\ntheir observations on Tecfidera's sales, discontinuation rates,\\n\\nand safety profile. Ten of the seventeen CWs referenced in the\\n\\ncomplaint were also referenced in the complaint in Biogen I (CWs\\n\\n1-10).6 In addition to referring to seven new CWs (CWs 11-17),\\n\\nthe Biogen II complaint also includes multiple new statements from\\n\\nfour of the CWs (CWs 1, 3, 7, and 8) who were included in the\\n\\noriginal Biogen I complaint.\\n\\n In Biogen I, our Court found that none of the CWs'\\n\\nstatements included in that complaint were probative of the\\n\\ndefendants' scienter because they were imprecise, did not contain\\n\\ninformation that was directly communicated to the individual\\n\\ndefendants, or concerned events that occurred after the individual\\n\\ndefendants made the plausibly misleading statements at issue in\\n\\nthat case. See Biogen I, 857 F.3d at 42-43. That logic applies\\n\\nwith equal force here, insofar as the plaintiffs have reprised\\n\\ntheir argument that the statements by CWs set forth in the Biogen\\n\\nI complaint illustrate that Kingsley made his four plausibly\\n\\nmisleading statements with the requisite scienter.\\n\\n\\n 6 Of the seven \\\"new\\\" confidential witnesses included in the\\npresent complaint (CWs 11-17), two (CWs 11 and 12) were included\\nin the Second Amended Complaint that our Court rejected as untimely\\nin Biogen I. See Biogen I, 857 F.3d at 45-46.\\n\\n\\n - 21 -\\n\\f As to the additional statements not included in the\\n\\nBiogen I complaint, the District Court similarly rejected them as\\n\\nnot probative of the defendants' scienter because they failed to\\n\\n\\\"set forth specific facts\\\" that directly conflicted with the six\\n\\n\\\"plausibly misleading\\\" statements that the District Court\\n\\nhighlighted. Biogen II, 305 F. Supp. 3d at 214-15 (emphasis in\\n\\noriginal). The District Court went on to note -- based on logic\\n\\nsimilar to that which we applied in Biogen I -- that these\\n\\nstatements' relevance is further diminished by the fact that the\\n\\ncomplaint does not allege that any of the CWs ever spoke with any\\n\\nof the individual defendants or otherwise shared with them their\\n\\nobservations. Id. at 215 n.29.\\n\\n On appeal, the plaintiffs do reference the statements of\\n\\none CW in particular, CW 13. According to the plaintiffs, CW 13\\n\\nexplained that \\\"everyone in leadership had access to reporting\\n\\nmetrics\\\" and that leadership frequently monitored the \\\"new start\\\"\\n\\nrates for Tecfidera as part of the process for producing their\\n\\nsales projections.\\n\\n But, the fact that Biogen's leadership monitored\\n\\nTecfidera's reporting metrics does not in and of itself suffice to\\n\\ncreate the \\\"strong inference\\\" that Kingsley made his four\\n\\nstatements about Tecfidera's discontinuation rates with the\\n\\nrequisite intent to deceive. We would expect responsible\\n\\nmanagement to engage in such monitoring. As a result, before one\\n\\n\\n - 22 -\\n\\fcould infer what plaintiffs ask, one would need to know what\\n\\nKingsley learned from such monitoring, and whether what he learned\\n\\nwas at odds with any of his \\\"plausibly misleading\\\" statements.\\n\\nYet, the complaint alleges no facts that are illuminating in that\\n\\nregard.\\n\\n The only additional confidential witness statement that\\n\\nthe plaintiffs expressly reference in their brief's section on\\n\\nindividual scienter is the statement made by CW 1. That witness\\n\\nallegedly said that Biogen instructed Area Business Managers to\\n\\n\\\"downplay the significance of the PML death\\\" when attempting to\\n\\nconvince doctors to prescribe the drug. But, the complaint does\\n\\nnot allege that Sandrock, Williams, or Kingsley was aware of this\\n\\nalleged instruction by the company. Nor do we see why such an\\n\\ninstruction gives rise to an inference that Kingsley's public\\n\\nassessment of the drug's actual usage was inaccurate, let alone\\n\\nintentionally deceitful.\\n\\n As to the statements concerning safety, the plaintiffs\\n\\ndo not dispute that Biogen disclosed the PML death to investors\\n\\nand the public. Moreover, nothing in CW 1's alleged statement\\n\\nreveals that what Sandrock and Williams actually said publicly\\n\\nabout the drug's safety was known by them to be misleading.\\n\\n In their briefing to us, the plaintiffs expressly\\n\\nreference a number of other confidential witness statements to\\n\\nsupport their arguments that the three individual defendants\\n\\n\\n - 23 -\\n\\fpossessed the requisite scienter. But, the plaintiffs do not\\n\\nallege that any of the confidential witnesses who made these\\n\\nstatements spoke with Kingsley before he made his statements about\\n\\nthe discontinuation rates, and most of these confidential\\n\\nwitnesses are, by the complaint's account, several levels removed\\n\\nfrom the company's executive team. See Biogen II, 305 F. Supp. 3d\\n\\nat 215 n.29 (\\\"The complaint does not allege that any of\\n\\nthe . . . confidential witnesses ever spoke with one of the named\\n\\ndefendants.\\\"); see also Fire & Police Pension Ass'n of Colo., 778\\n\\nF.3d at 245 (noting that \\\"none of the witnesses were in senior\\n\\nmanagement positions, and they appear to have had relatively little\\n\\nongoing contact with senior management\\\" (internal quotations\\n\\nomitted)).\\n\\n B.\\n\\n The plaintiffs do separately argue that they can meet\\n\\ntheir burden to allege that Biogen (though, we presume, not any of\\n\\nthe individual defendants) had the requisite scienter under a\\n\\ntheory of \\\"corporate scienter.\\\" Specifically, the plaintiffs\\n\\ncontend that, if the complaint plausibly alleges that one of the\\n\\ncompany's employees made a misleading statement to investors\\n\\nwithout scienter and \\\"an individual within Biogen’s management\\n\\nteam . . . knew or had access to information\\\" that showed that\\n\\nthis misleading statement was not true, then Biogen can be found\\n\\nto have had the requisite scienter on a corporate scienter theory.\\n\\n\\n - 24 -\\n\\fThe plaintiffs then proceed to contend that the record provides\\n\\nsupport for finding a \\\"strong inference\\\" of scienter on this basis,\\n\\nin light of the six \\\"plausibly misleading\\\" statements in the\\n\\ncomplaint that we have just reviewed, the company's failure to\\n\\ncorrect them, and the allegations that the complaint sets forth\\n\\nregarding what persons within the company knew or what the company\\n\\nmay itself be charged with having known. And, the plaintiffs\\n\\nfurther contend, the District Court erred by failing even to\\n\\naddress this basis for finding scienter vis à vis the claims\\n\\nagainst Biogen.\\n\\n The plaintiffs attempt to make the case for their showing\\n\\nof corporate scienter as follows. They allege that Ferguson and\\n\\nHall knew, due to their conversation with Dr. Thrower, that\\n\\nTecfidera was less safe than the company stated publicly when\\n\\nSandrock said that \\\"Tecfidera continues to provide patients with\\n\\neffective oral treatment for MS that is supported by a growing\\n\\nbody of data reinforcing its benefits and favorable safety\\n\\nprofile,\\\" and when Williams said that \\\"there's no real change in\\n\\nthe benefit/risk profile of the drug for patients with MS. So\\n\\nit's pretty much status quo at the moment.\\\" The plaintiffs argue\\n\\nthat Ferguson and Hall may be understood to have had this knowledge\\n\\nbecause, as the complaint alleges, Dr. Thrower discussed with\\n\\nFerguson and Hall his research that Tecfidera could cause lower\\n\\nlymphocyte counts than the company originally disclosed.\\n\\n\\n - 25 -\\n\\f But, the fact that Dr. Thrower and researchers like Dr.\\n\\nZamvil concluded on the basis of their own research that Tecfidera\\n\\ncould cause lower lymphocyte counts than was originally understood\\n\\ndoes not, in and of itself, suffice to contradict the assertions\\n\\nthat Tecfidera was \\\"effective\\\" at treating MS and that this fact\\n\\nwas \\\"supported by a growing body of research.\\\" For that reason,\\n\\neven if we were to assume that the statement was plausibly\\n\\nmisleading and that Hall's and Ferguson's knowledge of Dr.\\n\\nThrower's research -- or any of the other research cited by the\\n\\nplaintiffs -- could be imputed to the company as a whole, that\\n\\nknowledge would still fail to create the \\\"strong inference\\\" of\\n\\nscienter on Biogen's part. That is so, we emphasize, even if we\\n\\nwere to accept the plaintiffs' theory of corporate scienter.\\n\\n Similarly, the plaintiffs argue that Dr. Thrower's\\n\\nstatements to Hall and Ferguson show that the company knew that\\n\\nthe drug's usage rates were lower than was publicized. But, we\\n\\nfail to see how the knowledge that one doctor -- whose patients\\n\\nconstituted less than 0.2% of all Tecfidera users -- would no\\n\\nlonger prescribe Tecfidera could suffice to show that the company\\n\\nunderstood the drug's usage rate to be at odds with any statement\\n\\nregarding its usage that had been made publicly. For that reason,\\n\\nonce again, Ferguson and Hall's knowledge of what Dr. Thrower had\\n\\nallegedly told them about his own experience with the drug does\\n\\nnot suffice to establish the \\\"strong inference\\\" of scienter, even\\n\\n\\n - 26 -\\n\\fif we were inclined to impute what Ferguson and Hall knew to the\\n\\ncompany overall in the way that the plaintiffs contend that we\\n\\nmust under their expansive theory of \\\"corporate scienter.\\\"7\\n\\n The plaintiffs also point to statements made by the\\n\\nconfidential witnesses to support their contention that the\\n\\ncomplaint adequately alleges that employees in the company knew\\n\\nthat the statements by Kingsley that the District Court found to\\n\\nbe \\\"plausibly misleading\\\" were untrue. They then proceed to argue\\n\\nfrom that contention that the complaint's allegations suffice to\\n\\ncreate a \\\"strong inference\\\" of scienter on the company's part, in\\n\\nconsequence of Kingsley's plausibly misleading statements\\n\\nregarding the drug's usage. But, the alleged statements at issue\\n\\neither were not made with sufficient particularity, see Biogen I,\\n\\n875 F.3d at 42 (noting that the confidential witness statements\\n\\ndid not \\\"quantify the magnitude of the sales decline at the company\\n\\nlevel. [Nor did they] explain with any precision\\\" the cause of\\n\\n\\n\\n 7 Plaintiffs' reliance on CW 12's statements as evidence of\\ncorporate scienter does little to strengthen their position.\\nAccording to the plaintiffs, Craig Brown, Biogen's Regional\\nDirector, noted that CW 12's regional sales numbers declined after\\nDr. Thrower stopped prescribing Tecfidera to his patients. This\\nstatement simply speaks to the fact that individuals in the company\\nwere aware that, at least for a time, Dr. Thrower's decision would\\nhave an impact on their sales in the Atlanta region where CW 12\\nwas stationed. CW 12's observation does not indicate that anyone\\nin the company knew Kingsley's statements about Tecfidera's\\ndiscontinuation rate nationally were in any way untrue such that\\nthose observations would create the \\\"strong inference\\\" of scienter\\nnecessary to survive a motion to dismiss under the PSLRA.\\n\\n\\n - 27 -\\n\\fthe decline in sale) or did not describe events that took place\\n\\nbefore Kingsley's three statements concerning the drug's\\n\\ndiscontinuation rates, see id. at 42-43 (describing \\\"a significant\\n\\ntiming problem\\\" with many of the confidential witness statements,\\n\\nas most of them described declines in Tecfidera sale that occurred\\n\\nafter Kingsley made the three plausibly misleading statements at\\n\\nissue here).\\n\\n For example, plaintiffs reference the statements made by\\n\\nCW 11 that Biogen was aware that Tecfidera sales would decline\\n\\nafter the PML death was announced and \\\"drastically lowered sales\\n\\ntargets for the drug.\\\" But, the plaintiffs never explain how\\n\\nreductions in sales targets in November of 2014 indicate that that\\n\\nanyone in the company was aware that discontinuation rates were\\n\\nhigher than Kingsley's statements indicated in early 2015. After\\n\\nall, the fact that the company reduced sales targets does not,\\n\\nnecessarily, mean that actual sales fell at a commensurate rate.\\n\\nAccordingly, while these statements do indicate that employees in\\n\\nthe company were concerned about the impact the PML death would\\n\\nhave on Tecfidera sales, they do not create a \\\"strong inference\\\"\\n\\nthat someone in the company's management team knew that Kingsley's\\n\\ngeneralized statements about the drug's discontinuation rates were\\n\\nuntrue.\\n\\n Similarly, CW 14's statements that there were \\\"lots of\\n\\ndiscontinuations\\\" in the New York region after the PML death was\\n\\n\\n - 28 -\\n\\fannounced do not suffice to support the plaintiffs attempt to show\\n\\nthat the District Court erred in dismissing the claims against\\n\\nBiogen. The fact that one employee observed an unspecified\\n\\nincrease in discontinuation rates in New York in November of 2014\\n\\ndoes not create a strong inference that the Biogen management team\\n\\nknew that Kingsley's early 2015 statements about the drug's\\n\\ndiscontinuation rates company-wide were untrue. In fact,\\n\\naccording to the complaint, at the time that Kingsley made those\\n\\nstatements, the company had already disclosed to investors that\\n\\nthe drug's discontinuation rates were higher than expected.\\n\\n Finally, the plaintiffs point to CW 1's statement about\\n\\nhaving participated in \\\"emergency\\\" conference calls in December of\\n\\n2014 and January of 2015 regarding Tecfidera's declining sales.\\n\\nBut, the plaintiffs do not describe what specifically was\\n\\ncommunicated to the employees during those calls, and nothing in\\n\\nthe complaint suggests that CW 1 received any information during\\n\\nthem that directly conflicted with the four \\\"plausibly misleading\\\"\\n\\nstatements attributed to Kingsley.\\n\\n Moreover, the few confidential witness statements\\n\\nalleged in the complaint that were particularized and\\n\\nappropriately timed concerned narrow slices of the market for the\\n\\nsale of the drug. For example, CW 17 -- an Executive Territory\\n\\nBusiness Manager -- reported that his Tecfidera sales dropped 25%\\n\\nafter the PML death. But, the fact that his individual sales\\n\\n\\n - 29 -\\n\\fexperienced a decline does not indicate that he knew that\\n\\nKingsley's generalized assessments of the magnitude of the change\\n\\nin discontinuation rates nationally for the company were untrue.8\\n\\n C.\\n\\n Finally, we address the plaintiffs \\\"additional scienter\\\"\\n\\narguments. Here, the plaintiffs argue that the District Court did\\n\\nnot properly credit their allegations that the defendants knew or\\n\\nshould have known that the public statements that had been made by\\n\\nKingsley regarding Tecfidera were misleading because Tecfidera was\\n\\npart of the company's \\\"core operations\\\"; many of the plausibly\\n\\nmisleading statements were \\\"repeated\\\" and \\\"specific\\\"; and Biogen\\n\\noperates in a highly regulated industry. We disagree.9\\n\\n\\n\\n 8 The plaintiffs additionally point to CW 15's and CW 16's\\nknowledge that the company had prepared a response to a PML-linked\\ndeath well in advance of the October 2014 announcement. According\\nto the plaintiffs, the fact that the company did so reveals that\\nthe company knew for some time that the drug could cause PML and\\nyet failed to acknowledge this reality in its public disclosures.\\nHowever, as stated previously with regard to the plaintiffs'\\nindividual scienter claims, we fail to see how a company's\\npreparation for a worst-case scenario indicates that the company\\nknew that such a scenario would come to pass. Consequently, we\\nsimilarly reject the plaintiffs' reliance on CW 15's and CW 16's\\nstatements as they pertain to their corporate scienter\\ncontentions, as we conclude that even if we were to impute CW 15's\\nand CW 16's knowledge to the company, the plaintiffs would still\\nfail to create a \\\"strong inference\\\" of scienter.\\n 9 Plaintiffs also argue that, because only a short period of\\ntime passed between the defendants' \\\"plausibly misleading\\\"\\nstatements and the fraud's alleged \\\"disclosure,\\\" it can be assumed\\nthat the plaintiffs knew that their statements were misleading at\\nthe time that they were made. However, it appears that the\\nplaintiffs did not make this argument to the District Court below,\\n\\n\\n - 30 -\\n\\f In pressing the \\\"core operations\\\" theory, the plaintiffs\\n\\ncontend that, when \\\"facts critical to a business’s core operations\\n\\nor an important transaction generally are so apparent[,] knowledge\\n\\n[of those facts] may be attributed to the company and its key\\n\\nofficers,\\\" even if those officers did not, in actuality, know the\\n\\ncritical information. Bodri v. GoPro, Inc., 252 F. Supp. 3d 912,\\n\\n932 (N.D. Cal. 2017). But, as we have explained, the plaintiffs\\n\\nfail to identify any allegations in the complaint that show that\\n\\nanyone in the company had knowledge regarding the drug's safety\\n\\nprofile and sales that contradicted the company's public\\n\\nrepresentations. So, the \\\"core operations\\\" theory also does little\\n\\nto aid the plaintiffs' case. S. Ferry LP, No. 2 v. Killinger, 542\\n\\nF.3d 776, 784-85 (9th Cir. 2008) (\\\"As a general matter, 'corporate\\n\\nmanagement's general awareness of the day-to-day workings of the\\n\\ncompany's business does not establish scienter -- at least absent\\n\\nsome additional allegation of specific information conveyed to\\n\\nmanagement and related to the fraud' or other allegations\\n\\nsupporting scienter.\\\" (quoting Metzler Inv. GmbH v. Corinthian\\n\\nColls., Inc., 534 F.3d 1068, 1087 (9th Cir. 2008))).\\n\\n In this regard, the precedents on which the plaintiffs\\n\\nrely -- see, e.g., Stratte-McClure v. Morgan Stanley, 784 F. Supp.\\n\\n2d 373, 389 (S.D.N.Y. 2011); Crowell v. Ionics, Inc., 343 F. Supp.\\n\\n\\nand we thus do not consider it. See United States v. Swiss American\\nBank, Ltd., 191 F.3d 30, 37 (1st Cir. 1999).\\n\\n\\n - 31 -\\n\\f2d 1, 19 (D. Mass. 2004) -- are distinguishable. In each, the\\n\\nrecord contained much stronger evidence of knowledge within the\\n\\ncompany of fraudulent practices than is set forth in the\\n\\nallegations in the plaintiffs' complaint here. Compare Crowell,\\n\\n343 F. Supp. 2d at 19 (explaining that the low-level witnesses had\\n\\nreceived an email stating that a mid-level vice president ordered\\n\\na company-wide practice of fraudulently inflating sales numbers\\n\\nand thus that, even if the corporate officers were personally\\n\\nunaware of the fraudulent sales practice, generally -- that\\n\\nknowledge could be imputed to them though the core operations\\n\\ntheory), with Lenartz v. Am. Superconductor Corp., 879 F. Supp. 2d\\n\\n167, 183 n.9 (D. Mass. 2012) (rejecting the plaintiffs' core\\n\\noperations theory where the facts offered to prove that the\\n\\ndefendant's actions were fraudulent were \\\"less clear\\\" than the\\n\\n\\\"particularized facts\\\" of Crowell).\\n\\n The plaintiffs' \\\"highly regulated industry\\\" theory\\n\\nsuffers from the same defect. According to the plaintiffs, because\\n\\n\\\"Biogen operates in the heavily regulated pharmaceuticals\\n\\nindustry,\\\" one can infer \\\"that the Individual Defendants were\\n\\nacutely aware of safety-related concerns [related to Tecfidera].\\\"\\n\\nBut, if by \\\"safety concerns\\\" the plaintiffs mean the alleged\\n\\nstatements from Dr. Thrower to Ferguson and Hall regarding Dr.\\n\\nThrower's research on Tecfidera, then we have already explained\\n\\nthe problem with this theory. Even if we were to assume that the\\n\\n\\n - 32 -\\n\\findividual defendants were aware of Dr. Thrower's comments to\\n\\nFerguson and Hall, none of the six \\\"plausibly misleading\\\"\\n\\nstatements so clearly conflicts with Dr. Thrower's assessment of\\n\\nthe drug -- especially given the other safety disclosures the\\n\\ncompany made prior to those statements -- that there exists a\\n\\n\\\"strong inference\\\" that any of those six statements were made with\\n\\nthe intent to deceive.\\n\\n Nor can the plaintiffs succeed in pressing their case on\\n\\nappeal based on their contention that the defendants' repeated\\n\\nspecific statements about the drug show that they knew that their\\n\\npublic disclosures were misleading when made and thus that there\\n\\nis a \\\"strong inference\\\" of scienter not only as to them but also\\n\\nas to Biogen. We may assume that a plausibly misleading statement\\n\\nwas made publicly more than once. But nothing in the complaint\\n\\nalleges facts that indicate that anyone in Biogen's management had\\n\\nknowledge that was sufficiently in conflict with any of the six\\n\\n\\\"plausibly misleading\\\" public statements to permit the conclusion\\n\\nthat the company had the requisite intent to deceive in permitting\\n\\nthose statements to have been made and in not having corrected\\n\\nthem in some respect.\\n\\n\\n IV.\\n\\n For the foregoing reasons we affirm the District Court's\\n\\njudgment granting the motion to dismiss.\\n\\n\\n\\n - 33 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4412031/\", \"author_raw\": \"BARRON, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"STAHL"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4634778/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: METZLER ASSET MANAGEMENT GMBH, on Behalf of Itself and All Other Similarly Situated Parties; Erste-Sparinvest Kapitalanlagegesellschaft mbH, on Behalf of Itself and All Other Similarly Situated Parties, Plaintiffs, Appellants/Cross-Appellees, v. Stuart A. KINGSLEY; George A. Scangos; Paul J. Clancy ; Biogen Inc., Defendants, Appellees/Cross-Appellants.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-06-27\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNos. 18-1369, 18-1472\n\nMETZLER ASSET MANAGEMENT GMBH, on behalf of itself and all other\n similarly situated parties;\n\n ERSTE-SPARINVEST KAPITALANANLAGEGESELLSCHAFT MBH, on behalf of\n itself and all other similarly situated parties,\n\n Plaintiffs, Appellants/Cross-Appellees,\n\n v.\n\n STUART A. KINGSLEY; GEORGE A. SCANGOS; PAUL J. CLANCY;\n BIOGEN INC.,\n\n Defendants, Appellees/Cross-Appellants.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. F. Dennis Saylor, IV, U.S. District Judge]\n\n\n Before\n\n Lynch, Stahl, and Barron,\n Circuit Judges.\n\n\n Gregg S. Levin, with whom Christopher F. Moriarity, William\nH. Narwold, Motley Rice LLC, Jonathan Gardner, Labaton Sucharow\nLLP, Robert M. Rothman, Mark T. Millkey, Susan K. Alexander, Andrew\nS. Love, and Robbins Geller Rudman & Dowd LLP were on brief, for\nappellants/cross-appellees.\n James R. Carroll, with whom Michael S. Hines, Sara J. van\nVliet, and Skadden, Arps, Slate, Meagher & Flom LLP were on brief,\nfor appellees/cross-appellants.\n\fJune 27, 2019\n\f BARRON, Circuit Judge. Metzler Asset Management GmbH\n\n(\"Metzler\") and Erste–Sparinvest Kapitalanlagegesellschaft mbH\n\n(\"Erste–Sparinvest\") have been designated the lead plaintiffs,\n\npursuant to the Private Securities Litigation Reform Act\n\n(\"PSLRA\"), 15 U.S.C. § 78u-4, in a federal securities class action\n\nthat they brought against Biogen Inc. and three Biogen executives\n\n(\"Biogen\"). The suit alleges that Biogen and its executives\n\ncommitted fraud, in violation of regulations promulgated by the\n\nSecurities and Exchange Commission pursuant to the Securities\n\nExchange Act, 15 U.S.C. § 78a et seq, by falsely stating that\n\nBiogen's product, Tecfidera, was both safer and more widely used\n\nthan it was. The putative class is comprised of all purchasers of\n\nBiogen common stock from July 23, 2014, through July 23, 2015.\n\n The defendants moved to dismiss the suit on claim\n\npreclusion grounds, based on this Court's earlier decision in In\n\nre Biogen Inc. Securities Litigation, 857 F.3d 34 (1st Cir. 2017)\n\n(\"Biogen I\"), and for failing to plead facts \"giving rise to a\n\nstrong inference\" of scienter, 15 U.S.C. § 78u-4(b)(2)(A), as the\n\nPSLRA requires that a complaint alleging fraud must in order for\n\nit to survive such a motion. The District Court rejected the\n\ndefendants' claim preclusion argument but dismissed the suit under\n\nthe PSLRA for failing to adequately plead scienter. We affirm.\n\n\n\n\n - 3 -\n\f I.\n\n The corporate defendant, Biogen, is a multinational\n\nbiotechnology company based in Cambridge, Massachusetts. Its\n\nstock trades on the NASDAQ. Id. at 37. The three individual\n\ndefendants are George Scangos, who was Biogen's Chief Executive\n\nOfficer from July 23, 2014, through July 23, 2015; Paul Clancy,\n\nwho was Biogen's Chief Financial Officer and Executive Vice\n\nPresident of Finance during that time; and Stuart Kingsley, who\n\nwas its Executive Vice President of Global Commercial Operations\n\nduring the same period. Id.\n\n The plaintiffs' complaint sets forth the following\n\nallegations. Biogen developed and sold a United States Food and\n\nDrug Administration (\"FDA\") approved drug for multiple sclerosis\n\n(\"MS\") called Tecfidera during the relevant time period. Tecfidera\n\naccounted for a third of Biogen's total revenue in this time frame.\n\nAs of July 23, 2014, Tecfidera bore a label that warned patients\n\ntaking the drug of an increased risk of developing lymphopenia -- a\n\ncondition of having low lymphocyte counts, leading to a weakened\n\nimmune system.\n\n On October 22, 2014, Biogen held a third-quarter\n\nearnings call with its investors. The company announced for the\n\nfirst time publicly that an MS patient who had been regularly\n\ntaking Tecfidera had died of progressive multifocal\n\nleukoencephalopathy (\"PML\"), a rare neurological disease which\n\n\n - 4 -\n\fcounts lymphopenia as one of its precursors. One month later,\n\nBiogen amended the Tecfidera label to include a warning about the\n\nrisk of PML.\n\n On January 29, 2015, Biogen provided full-year revenue\n\nguidance for 2015. It predicted a 14% to 16% overall growth rate\n\nfor the company for the year. However, on April 24, 2015, Biogen\n\nreleased first-quarter financial results for the year that showed\n\nthat Tecfidera's revenue had fallen below the market estimates.\n\n On July 24, 2015, Biogen released its second-quarter\n\nearnings report. The report amended the company's 2015 revenue\n\nguidance. It lowered Biogen's predicted revenue growth from 14-16%\n\nto 6-8% for the year. Biogen attributed its tempered expectations,\n\nin part, to slowing Tecfidera growth.\n\n Biogen's stock fell by more than 20% in one day due to\n\nthe second quarter earnings report. On October 9, 2015, Biogen\n\nannounced that Kingsley was leaving the company. Less than two\n\nweeks later, the company announced that it was cutting roughly 11%\n\nof its workforce. Id. at 39.\n\n On August 18, 2015, a putative federal securities fraud\n\nclass action was filed in the District of Massachusetts against\n\nthe company and the same three individual defendants in the case\n\nbefore us in this appeal. Id. at 36-39. The putative class in\n\nthat action consisted of persons who had purchased common stock of\n\nBiogen between January 29, 2015, and July 23, 2015. Tehrani v.\n\n\n - 5 -\n\fBiogen, Inc., No. 15-13189, 2015 WL 7302132, at *1 (D. Mass. Nov.\n\n18, 2015). The suit alleged that Biogen and the three executives\n\nhad fraudulently misled investors, in violation of Sections 10(b)1\n\nand 20(a)2 of the Securities Exchange Act of 1934, see 15 U.S.C.\n\n§§ 78j(b), 78t(a), regarding Tecfidera's usage rates in light of\n\nthe PML incident. Tehrani, 2015 WL 7302132, at *1.\n\n Notice of the action was published pursuant to the PSLRA,\n\nwhich establishes procedures for bringing securities class\n\nactions. See id. at *2. In accordance with those procedures, on\n\nNovember 17, 2015, the District Court preliminarily appointed GBR\n\nGroup Ltd. (\"GBR\") \"lead plaintiff\" in the matter, a status that\n\nCongress created in the PSLRA \"to increase the chances that\n\nsecurities fraud cases are brought by investors who have\n\nsubstantial and genuine interests in the litigation.\" Id.\n\n On January 19, 2016, GBR filed an amended complaint.\n\nThe amended complaint changed the class period, such that it ran\n\nfrom December 2, 2014, through July 23, 2015. Biogen I, 857 F.3d\n\nat 36.\n\n\n 1\n Section 10(b), as set forth in 15 U.S.C. § 78j(b), makes it\nunlawful \"[t]o use or employ, in connection with the purchase or\nsale of any security . . . any manipulative or deceptive device or\ncontrivance in contravention of such rules and regulations as the\nCommission may prescribe.\"\n 2\n Section 20(a), as set forth in 15 U.S.C. § 78t(a), creates\n\"[j]oint and [s]everal\" liability for \"[e]very person who,\ndirectly or indirectly, controls any person liable under any\nprovision of this chapter or of any rule or regulation thereunder.\"\n\n\n - 6 -\n\f Biogen moved to dismiss the complaint. The District\n\nCourt granted that motion as to both the Section 10(b) and 20(a)\n\nclaims. See Biogen I, 193 F. Supp. 3d 5, 56 (D. Mass. 2016).\n\n GBR moved to vacate the order of dismissal and for leave\n\nto file a second amended complaint with the District Court under\n\nFederal Rules 59(e) and 60(b)(2). In re Biogen Inc. Sec. Litig.,\n\nNo. 15-13189, 2016 WL 5660329, at *3 (D. Mass. Sept. 28, 2016).\n\nThe motion requested that the District Court vacate the order of\n\ndismissal based on the new scienter allegations in the proposed\n\nsecond amended complaint. Id. The District Court denied the\n\nmotion. Id. at *6. The District Court determined that the\n\nplaintiffs could have discovered the evidence on which they were\n\nbased earlier with reasonable diligence. Id.\n\n GBR appealed both the dismissal of the complaint for\n\nfailure to state a claim as well as the denial of its motion to\n\nvacate that dismissal and for leave to file the second amended\n\ncomplaint. As discussed below, that appeal ultimately ended in\n\naffirmance of the District Court. During the pendency of the\n\nappeal in that case, however, separate Biogen stockholders filed\n\na subsequent putative class action in the District Court on October\n\n20, 2016, against Biogen and certain of its executives on behalf\n\nof a class of investors in the company. Metzler Asset Mgmt. GmbH\n\nv. Kingsley (\"Biogen II\"), 305 F. Supp. 3d 181, 205, 202 (D. Mass.\n\n2018). They alleged that, through its comments to investors,\n\n\n - 7 -\n\fBiogen misled the market about Tecfidera's safety profile and\n\ndiscontinuation rates.\n\n This new action is the one before us on appeal. It,\n\ntoo, asserts violations of Sections 10(b) and 20(a) of the\n\nSecurities Exchange Act. Nonetheless, it differs from the first\n\nputative class action that had been filed against Biogen in three\n\nways. First, the class period for the putative class in the new\n\nsuit began on July 23, 2014, as opposed to December 2, 2014.\n\nSecond, the complaint in the new suit alleged that Biogen had made\n\nadditional misleading statements not referenced in the prior suit\n\nand also set forth statements from confidential witnesses (\"CWs\")\n\nto prove scienter that had not been referenced in the complaint in\n\nthe earlier suit. These newly alleged statements included ones\n\nthat had been set forth in the amended complaint in the earlier\n\nputative class action that the District Court rejected for not\n\nhaving been included in a timely manner. See Biogen I, 857 F.3d\n\nat 45-46. Third, the new suit alleged that, in addition to making\n\nfraudulent statements regarding Tecfidera's usage rate, Biogen\n\nexecutives also made fraudulent statements about the drug's safety\n\nprofile.\n\n On February 1, 2017, the District Court preliminarily\n\nappointed Metzler and Erste–Sparinvest -- not GBR -- to be the\n\nlead plaintiffs in this new suit pursuant to the PSLRA. See\n\nMetzler Asset Mgmt. GmbH v. Kinglsey, No. 16-12101, 2017 WL 438731\n\n\n - 8 -\n\f(D. Mass. Feb. 1, 2017). Plaintiffs also filed a motion to stay\n\nthe District Court proceedings pending resolution of the appeal of\n\nthe earlier action. That motion was denied. Id. at *4.\n\n On May 12, 2017, we affirmed the District Court's order\n\nof dismissal for lack of sufficient allegations of scienter in\n\nBiogen I. Biogen I, 857 F.3d at 46. In so doing, we also held\n\nthat the confidential witness statements provided by the\n\nplaintiffs were \"insufficiently particular\" to prove scienter.\n\nId. at 41. Finally, we denied the plaintiffs' motion to vacate\n\nand file a second amended complaint. Id. at 45.\n\n Following Biogen I, Biogen moved to dismiss the\n\ncomplaint in the putative class action that is now before us for\n\nfailing to adequately plead scienter and on claim preclusion\n\ngrounds. The District Court rejected the claim preclusion argument\n\nbut agreed that the complaint in the new suit failed to plead facts\n\nsufficient to create a strong inference of scienter. Biogen II,\n\n305 F. Supp. 3d at 205, 222. The appeal from that ruling then\n\nfollowed.\n\n II.\n\n To establish claim preclusion, the defendant must show\n\nthat \"(1) the earlier suit resulted in a final judgment on the\n\nmerits, (2) the causes of action asserted in the earlier and later\n\nsuits are sufficiently identical or related, and (3) the parties\n\nin the two suits are sufficiently identical or closely related.\"\n\n\n - 9 -\n\fAirframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 14 (1st Cir.\n\n2010). The District Court rejected Biogen's claim preclusion\n\nargument. See Biogen II, 305 F. Supp. 3d at 205. The District\n\nCourt did not question whether Biogen I represented a final\n\njudgment, as it plainly did. Id. at 204. Nor did the District\n\nCourt rule that that the causes of action in the two cases were\n\nnot related or identical, as it found that they were. Id. Instead,\n\nthe District Court rejected the contention that GBR, as lead\n\nplaintiff under the PSLRA in Biogen I, could \"adequate[ly]\n\nrepresent\" the class in Biogen II, such that the plaintiffs in the\n\ntwo actions may be deemed to be sufficiently \"identical,\" as they\n\nmust be for claim preclusion to apply. Id. at 205.\n\n The District Court explained that the putative class in\n\nBiogen I was not certified through Federal Rule of Civil Procedure\n\n23 and thus remained merely a \"proposed class action[.]\" Id.\n\n(citing Smith v. Bayer Corp., 564 U.S. 299, 316 (2011)). For that\n\nreason, the District Court ruled, GBR could not, by virtue of its\n\nrole as the lead plaintiff under the PSLRA in Biogen I, be deemed\n\nto have \"adequate[ly] represented\" the putative class in Biogen\n\nII.\n\n In reaching this conclusion about whether the members of\n\nthe putative class in Biogen II were adequately represented by GBR\n\nin Biogen I, the District Court relied on the Supreme Court's\n\nruling in Smith. There, the Supreme Court held that a consumer's\n\n\n - 10 -\n\fmotion for class certification was not precluded by a previous\n\ndecision denying a similar motion for class certification to a\n\ndifferent party. Smith, 564 U.S. at 304-05. The Court stated,\n\n\"[w]e could hardly have been more clear [in Taylor v. Sturgell,\n\n553 U.S. 880 (2008)] that a 'properly conducted class action,'\n\nwith binding effect on nonparties, can come about in federal courts\n\nin just one way -- through the procedure set out in Rule 23.\" Id.\n\nat 316.\n\n Biogen argues that the District Court erred in this\n\naspect of its claim preclusion analysis. Biogen contends that the\n\nPSLRA's process for appointing a lead plaintiff sufficed to ensure\n\nthat GBR, in its role as lead plaintiff of the putative class in\n\nBiogen I, did adequately represent the interests of the putative\n\nclass in Biogen II, even though the class in Biogen I had not been\n\ncertified at the time of the dismissal of that action. Thus,\n\nBiogen contends that the dismissal in Biogen I could be preclusive\n\nof the claims brought by the putative class in Biogen II, even\n\nthough GBR is not the lead plaintiff for that putative class.\n\n In challenging Biogen's claim preclusion argument, the\n\nappellants contend that the protections afforded absent parties by\n\nthe PSLRA are not as robust as those afforded by the requirements\n\nset forth in Rule 23 itself, due to the preliminary nature of the\n\nPSLRA's lead plaintiff appointment procedures. Indeed, as\n\nmultiple courts have recognized, nothing about lead plaintiff\n\n\n - 11 -\n\fappointment pursuant to the PSLRA is \"dispositive with respect to\n\nthe ultimate certification of the class and designation of a class\n\nrepresentative.\" Greebel v. FTP Software, Inc., 939 F. Supp. 57,\n\n62 n.4 (D. Mass 1996); Dempsey v. Vieau, 130 F. Supp. 3d 809, 813\n\n(S.D.N.Y. 2015) (\"Lead plaintiff designation does not abnegate the\n\nnecessity of class certification . . . .\"). Consequently, the\n\nargument proceeds, lead plaintiff appointment pursuant to the\n\nPSLRA is simply too preliminary for a lead plaintiff of an\n\nas-yet-uncertified class to be deemed on that basis alone to be an\n\nadequate representative for claim preclusion purposes of a class\n\nin a subsequent action. Dempsey, 130 F. Supp. 3d at 813.\n\n In addition to this potential problem with Biogen's\n\nclaim preclusion contention here, there is another that is more\n\nparticular to this case. The proposed class in Biogen II includes\n\nstockholders who purchased Biogen securities between July 23,\n\n2014, and December 2, 2014. This group of purchasers was not\n\nincluded in the class proposed in Biogen I. Biogen does not\n\nexplain how the lead plaintiff in Biogen I could be thought to\n\nhave adequately represented those members of the proposed class in\n\nBiogen II who are not only represented by different lead plaintiffs\n\nbut also were not even members of the putative class in Biogen I.\n\n We need not, however, resolve the claim preclusion issue\n\ndefinitively here. Even if we were to assume that the adequate\n\nrepresentation requirement could not be satisfied here, such that\n\n\n - 12 -\n\fthe plaintiffs' claim is not precluded, the suit in Biogen II would\n\nstill have to be dismissed. As we next explain, the District Court\n\nproperly ruled that, under the PSLRA, the plaintiffs failed to\n\nadequately plead scienter for purposes of surviving a motion to\n\ndismiss for failure to state a claim.\n\n III.\n\n To state a claim under Section 10(b)3 of the Securities\n\nExchange Act, plaintiffs must adequately plead \"(1) a material\n\nmisrepresentation or omission; (2) scienter; (3) a connection with\n\nthe purchase or sale of a security; (4) reliance; (5) economic\n\nloss; and (6) loss causation.\" Biogen I, 857 F.3d at 41. Scienter\n\nis defined as either the \"intentional or willful conduct designed\n\nto deceive or defraud investors\" or \"a high degree of\n\nrecklessness.\" Id. (internal quotations omitted).\n\n Under the PSLRA, to survive a motion to dismiss for\n\nfailure to state a claim, plaintiffs must \"state with particularity\n\nfacts giving rise to a strong inference that the defendant acted\n\nwith [scienter].\" 15 U.S.C. § 78u-4(b)(2)(A) (emphasis added).\n\n\"For an inference of scienter to be strong, 'a reasonable person\n\n\n 3 As the plaintiffs' Section 20(a) claims are necessarily\ndependent on the existence of a Section 10(b) violation, our\nanalysis need only address the deficiencies in the plaintiffs'\nSection 10(b) claims in order to uphold the District Court's\ndecision. See ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46,\n67 (1st Cir. 2008) (\"The plain terms of [S]ection 20(a) indicate\nthat it only creates liability derivative of an underlying\nsecurities violation.\").\n\n\n - 13 -\n\fwould [have to] deem [it] cogent and at least as compelling as any\n\nopposing inference one could draw from the facts alleged.'\" Biogen\n\nI, 857 F.3d at 41 (alterations in original) (quoting Tellabs, Inc.\n\nv. Makor Issues & Rights, Ltd., 551 U.S. 308, 324 (2007)).\n\n The District Court dismissed the plaintiffs' suit in\n\nBiogen II after determining that none of the statements that the\n\nplaintiffs allege that the individual Biogen executive defendants\n\nmade were of a kind that could give rise to the \"strong inference\"\n\nof scienter that the PSLRA requires. On that basis, the District\n\nCourt concluded that the claims against each of these executives\n\nindividually, as well as the claims against Biogen itself, must be\n\ndismissed. Cf. Biogen I, 857 F.3d at 37, 41. Our review of the\n\nDistrict Court's ruling on scienter is de novo. See id. at 41.\n\n To make their case on appeal, the plaintiffs focus on\n\nsix statements in their complaint that the District Court held, in\n\nmaking its scienter ruling, were at least \"plausibly misleading.\"\n\nBiogen II, 305 F. Supp. 3d at 206, 212.4 These statements fall\n\ninto two general categories: (1) those that pertain to Tecfidera's\n\n\n\n\n 4 For the purpose of this appeal, we will assume, favorably\nto plaintiffs, that the District Court was correct in concluding\nthat these six statements were, in fact, \"plausibly misleading.\"\nAlthough we do not definitively conclude that these six statements\nare plausibly misleading, we will nonetheless refer to them\nthroughout the opinion as the six \"plausibly misleading\"\nstatements for clarity's sake.\n\n\n - 14 -\n\fsafety profile, and (2) those that pertain to Tecfidera's usage\n\nrate. We consider the statements in each category in turn.\n\n Before doing so, however, we note that although the\n\nstatements that we focus on were made by, respectively, Alfred\n\nSandrock (Biogen's Chief Medical Officer), Doug Williams (Biogen's\n\nExecutive Vice President of Research and Development) and\n\nKingsley, only Kingsley is a defendant in his own right. Thus, it\n\nis unclear what role, if any, the statements by Sandrock and\n\nWilliams serve in the plaintiffs' fraud claims against Kingsley,\n\nScangos, and Clancy. But, even if we assume that Williams's and\n\nSandrock's statements somehow could be imputed to these three\n\nindividual defendants, as the plaintiffs appear implicitly to\n\nassume in their briefing to us in contending that the District\n\nCourt erred in dismissing the claims against them, the plaintiffs'\n\nargument would still fail.\n\n A.\n\n The first category of statements on which the plaintiffs\n\nin this appeal rely with respect to the claims against the\n\nindividual defendants concerns Tecfidera's safety profile. The\n\nplaintiffs point to two such statements, the first of which was\n\nmade on September 11 by Sandrock. According to the complaint,\n\nSandrock stated at that time that \"Tecfidera continues to provide\n\npatients with effective oral treatment for MS that is supported by\n\n\n\n\n - 15 -\n\fa growing body of data reinforcing its benefits and favorable\n\nsafety profile.\"\n\n The complaint alleges that Sandrock made this statement\n\nbefore Biogen's October announcement of the PML-related death, and\n\nthe plaintiffs do not contend that any of the individual defendants\n\nknew about that death before Sandrock made this statement.5 The\n\nplaintiffs nevertheless contend that the District Court erred in\n\nconcluding that the complaint failed adequately to allege that\n\nSandrock made the statement with the \"intentional or willful\"\n\ndesign to deceive investors.\n\n To make this case, the plaintiffs point out that, in\n\nAugust and September of 2014, Dr. Ben Thrower, the medical director\n\nat the Shepherd Center in Atlanta, notified Keith Ferguson, the\n\ncompany's senior sales director, and Eric Hall, the medical science\n\nliaison for Biogen, that his research showed that patients who\n\nwere taking Tecfidera had a higher risk of developing low\n\nlymphocyte counts than Biogen had originally disclosed. The\n\ncomplaint further alleges that, for this reason, Dr. Thrower chose\n\nto discontinue Tecfidera prescriptions for approximately 200 of\n\nhis patients and to stop issuing new prescriptions for the drug.\n\n\n 5\n CW 15's statements that Biogen had already prepared a\nresponse for a potential PML-related death is not to the contrary.\nThat the company had a PML-related contingency in place for a drug\nthat it already knew -- and disclosed -- caused low lymphocyte\ncounts is not surprising and does not indicate that Sandrock made\nthe statement at issue deceitfully.\n\n\n - 16 -\n\fThe complaint also alleges that he told Ferguson and Hall about\n\nthis development.\n\n But, according to the complaint, Sandrock in his\n\nSeptember 2014 statement said only that Tecfidera was \"effective\"\n\nat treating MS and that its safety profile was \"supported by a\n\ngrowing body of data.\" Nothing about Dr. Thrower's alleged\n\nstatements to Hall and Ferguson about his own research\n\nfindings -- especially given the limited slice of the market on\n\nwhich those findings were based -- contradicts the statements that\n\nthe complaint alleges that Sandrock made. See Geffon v. Micrion\n\nCorp., 249 F.3d 29, 36 (1st Cir. 2001) (\"Even if the statements at\n\nissue were material and false or misleading, the evidence does not\n\nsupport a finding that defendants knew the statements would\n\nmaterially mislead the investing public.\" (emphasis omitted)).\n\nThus, even assuming that Sandrock's statement was \"plausibly\n\nmisleading\" and made with knowledge of Thrower's conclusions, we\n\nfind insufficient support for a \"strong inference\" that Sandrock\n\nspoke with the intent to deceive investors. And thus, the\n\nallegations regarding Sandrock fail to establish a \"strong\n\ninference\" of scienter as to even him, let alone as to any\n\nindividual defendant.\n\n The only other \"plausibly misleading\" statement that\n\nconcerns the drug's safety profile to which the plaintiffs point\n\nis one that, according to the complaint, Williams made in April of\n\n\n - 17 -\n\f2015. In it, Williams allegedly stated that \"there's no real\n\nchange in the benefit/risk profile of the drug for patients with\n\nMS. So it's pretty much status quo at the moment.\"\n\n By April of 2015, according to the complaint, Biogen had\n\nalready disclosed the PML death and updated the drug's label to\n\naccount for the increased understanding of its risk. Given that\n\nnone of the findings by the researchers that the plaintiffs cite\n\naver that the drug was less safe than these revised disclosures,\n\nwe do not see how the plaintiffs can plausibly suggest that\n\nWilliams was aware that the drug was less safe than these revised\n\ndisclosures suggested. Therefore, even if, drawing all inferences\n\nin favor of the plaintiff, one could conclude that Williams's\n\nstatement -- read in a vacuum -- was misleading, one could not\n\ndraw a \"strong inference\" from that statement that it was said\n\nwith an \"intent to deceive,\" given what the record shows about\n\nBiogen's earlier disclosures and the state of Williams's knowledge\n\nof the drug's safety profile. See City of Dearborn Heights Act\n\n345 Police & Fire Ret. Sys. v. Waters Corp., 632 F.3d 751, 760\n\n(1st Cir. 2011) (\"[A]ttempts to provide investors with warnings of\n\nrisks generally weaken the inference of scienter.\" (alteration in\n\noriginal) (quoting Ezra Charitable Tr. v. Tyco Int'l, Ltd., 466\n\nF.3d 1, 8 (1st Cir. 2006)).\n\n We turn, then, to the four \"plausibly misleading\"\n\nstatements that pertain to Tecfidera's usage rates. All four\n\n\n - 18 -\n\fstatements were allegedly made by Kingsley, who is an individual\n\ndefendant. But, we find no basis for concluding that any of these\n\nstatements permit us to infer the necessary intent to deceive that\n\ncould suffice to create the \"strong inference\" of scienter that\n\nthe PSLRA requires. And, even the cumulative weight of these\n\nstatements and the CW evidence discussed below would not suffice.\n\n We first address the January 29, 2015 statement by\n\nKingsley that \"Tecfidera [was] on track to become the most\n\nprescribed therapy for MS worldwide.\" The plaintiffs argue that\n\nthis statement was misleading and creates the \"strong inference\"\n\nof scienter on Kingsley's part, because at the time of the\n\nstatement, Kingsley knew about both the PML death and about\n\nTecfidera's declining sales and discontinuation rates.\n\n At the time that Kingsley made the statement, however,\n\nBiogen had already disclosed to the public the news of the PML\n\ndeath, had already changed the drug's label, had already publicized\n\nthat it expected the drug's growth rate to \"slow,\" and had already\n\ndisclosed that the drug's discontinuation rates were higher than\n\nexpected. Moreover, during the conference call on which Kingsley\n\nmade the statement at issue, he also noted that the company had\n\nobserved \"moderating\" growth for the drug at the end of 2014 and\n\nexpected that trend to continue into the new year. Given these\n\ndisclosures pointing against sales growth, it is hard to\n\ncharacterize Kingsley's statement that he believed Tecfidera would\n\n\n - 19 -\n\f\"become the most-prescribed therapy for MS worldwide\" as anything\n\nother than misguided optimism. See Fire & Police Pension Ass'n of\n\nColo. v. Abiomed, Inc., 778 F.3d 228, 244 (1st Cir. 2015) (holding\n\nthat defendants' informative disclosures \"undercut any inference\n\nof scienter\"). Accordingly, we fail to see how one could\n\ncharacterize Kingsley as having had the requisite intent to deceive\n\nwhen he made this statement, such that one could draw the \"strong\n\ninference\" of scienter required by the PSLRA.\n\n We, turn, then, to three statements of Kingsley's from\n\nJanuary 29, 2015, to February 25, 2015, in which, according to the\n\ncomplaint, he stated that there had not been any \"meaningful\n\nchange\" in Tecfidera's discontinuation rates and that those rates\n\nwere \"consistent with historical averages.\" As previously\n\nmentioned, at the time that Kingsley made these statements, the\n\ncompany had already disclosed to investors that Tecfidera's\n\ndiscontinuation rate was higher than Biogen would have hoped but\n\nthat the company aimed to \"get better performance in the\n\ndiscontinuation rates over a longer period of time.\" Given the\n\nstatements in which Kingsley had been forthcoming about the status\n\nof Tecfidera's discontinuation rates, we do not see how Kingsley's\n\nearly 2015 refrain that the company had not seen \"meaningful\n\nchange\" in the drug's discontinuation rate and that the rates were\n\n\"consistent with historical averages\" may fairly be characterized\n\nas having been made with the \"intent to deceive.\" Id.\n\n\n - 20 -\n\f In arguing otherwise, plaintiffs point to statements set\n\nforth in the complaint that were allegedly made by CWs. The\n\ncomplaint contains statements made by seventeen CWs regarding\n\ntheir observations on Tecfidera's sales, discontinuation rates,\n\nand safety profile. Ten of the seventeen CWs referenced in the\n\ncomplaint were also referenced in the complaint in Biogen I (CWs\n\n1-10).6 In addition to referring to seven new CWs (CWs 11-17),\n\nthe Biogen II complaint also includes multiple new statements from\n\nfour of the CWs (CWs 1, 3, 7, and 8) who were included in the\n\noriginal Biogen I complaint.\n\n In Biogen I, our Court found that none of the CWs'\n\nstatements included in that complaint were probative of the\n\ndefendants' scienter because they were imprecise, did not contain\n\ninformation that was directly communicated to the individual\n\ndefendants, or concerned events that occurred after the individual\n\ndefendants made the plausibly misleading statements at issue in\n\nthat case. See Biogen I, 857 F.3d at 42-43. That logic applies\n\nwith equal force here, insofar as the plaintiffs have reprised\n\ntheir argument that the statements by CWs set forth in the Biogen\n\nI complaint illustrate that Kingsley made his four plausibly\n\nmisleading statements with the requisite scienter.\n\n\n 6 Of the seven \"new\" confidential witnesses included in the\npresent complaint (CWs 11-17), two (CWs 11 and 12) were included\nin the Second Amended Complaint that our Court rejected as untimely\nin Biogen I. See Biogen I, 857 F.3d at 45-46.\n\n\n - 21 -\n\f As to the additional statements not included in the\n\nBiogen I complaint, the District Court similarly rejected them as\n\nnot probative of the defendants' scienter because they failed to\n\n\"set forth specific facts\" that directly conflicted with the six\n\n\"plausibly misleading\" statements that the District Court\n\nhighlighted. Biogen II, 305 F. Supp. 3d at 214-15 (emphasis in\n\noriginal). The District Court went on to note -- based on logic\n\nsimilar to that which we applied in Biogen I -- that these\n\nstatements' relevance is further diminished by the fact that the\n\ncomplaint does not allege that any of the CWs ever spoke with any\n\nof the individual defendants or otherwise shared with them their\n\nobservations. Id. at 215 n.29.\n\n On appeal, the plaintiffs do reference the statements of\n\none CW in particular, CW 13. According to the plaintiffs, CW 13\n\nexplained that \"everyone in leadership had access to reporting\n\nmetrics\" and that leadership frequently monitored the \"new start\"\n\nrates for Tecfidera as part of the process for producing their\n\nsales projections.\n\n But, the fact that Biogen's leadership monitored\n\nTecfidera's reporting metrics does not in and of itself suffice to\n\ncreate the \"strong inference\" that Kingsley made his four\n\nstatements about Tecfidera's discontinuation rates with the\n\nrequisite intent to deceive. We would expect responsible\n\nmanagement to engage in such monitoring. As a result, before one\n\n\n - 22 -\n\fcould infer what plaintiffs ask, one would need to know what\n\nKingsley learned from such monitoring, and whether what he learned\n\nwas at odds with any of his \"plausibly misleading\" statements.\n\nYet, the complaint alleges no facts that are illuminating in that\n\nregard.\n\n The only additional confidential witness statement that\n\nthe plaintiffs expressly reference in their brief's section on\n\nindividual scienter is the statement made by CW 1. That witness\n\nallegedly said that Biogen instructed Area Business Managers to\n\n\"downplay the significance of the PML death\" when attempting to\n\nconvince doctors to prescribe the drug. But, the complaint does\n\nnot allege that Sandrock, Williams, or Kingsley was aware of this\n\nalleged instruction by the company. Nor do we see why such an\n\ninstruction gives rise to an inference that Kingsley's public\n\nassessment of the drug's actual usage was inaccurate, let alone\n\nintentionally deceitful.\n\n As to the statements concerning safety, the plaintiffs\n\ndo not dispute that Biogen disclosed the PML death to investors\n\nand the public. Moreover, nothing in CW 1's alleged statement\n\nreveals that what Sandrock and Williams actually said publicly\n\nabout the drug's safety was known by them to be misleading.\n\n In their briefing to us, the plaintiffs expressly\n\nreference a number of other confidential witness statements to\n\nsupport their arguments that the three individual defendants\n\n\n - 23 -\n\fpossessed the requisite scienter. But, the plaintiffs do not\n\nallege that any of the confidential witnesses who made these\n\nstatements spoke with Kingsley before he made his statements about\n\nthe discontinuation rates, and most of these confidential\n\nwitnesses are, by the complaint's account, several levels removed\n\nfrom the company's executive team. See Biogen II, 305 F. Supp. 3d\n\nat 215 n.29 (\"The complaint does not allege that any of\n\nthe . . . confidential witnesses ever spoke with one of the named\n\ndefendants.\"); see also Fire & Police Pension Ass'n of Colo., 778\n\nF.3d at 245 (noting that \"none of the witnesses were in senior\n\nmanagement positions, and they appear to have had relatively little\n\nongoing contact with senior management\" (internal quotations\n\nomitted)).\n\n B.\n\n The plaintiffs do separately argue that they can meet\n\ntheir burden to allege that Biogen (though, we presume, not any of\n\nthe individual defendants) had the requisite scienter under a\n\ntheory of \"corporate scienter.\" Specifically, the plaintiffs\n\ncontend that, if the complaint plausibly alleges that one of the\n\ncompany's employees made a misleading statement to investors\n\nwithout scienter and \"an individual within Biogen’s management\n\nteam . . . knew or had access to information\" that showed that\n\nthis misleading statement was not true, then Biogen can be found\n\nto have had the requisite scienter on a corporate scienter theory.\n\n\n - 24 -\n\fThe plaintiffs then proceed to contend that the record provides\n\nsupport for finding a \"strong inference\" of scienter on this basis,\n\nin light of the six \"plausibly misleading\" statements in the\n\ncomplaint that we have just reviewed, the company's failure to\n\ncorrect them, and the allegations that the complaint sets forth\n\nregarding what persons within the company knew or what the company\n\nmay itself be charged with having known. And, the plaintiffs\n\nfurther contend, the District Court erred by failing even to\n\naddress this basis for finding scienter vis à vis the claims\n\nagainst Biogen.\n\n The plaintiffs attempt to make the case for their showing\n\nof corporate scienter as follows. They allege that Ferguson and\n\nHall knew, due to their conversation with Dr. Thrower, that\n\nTecfidera was less safe than the company stated publicly when\n\nSandrock said that \"Tecfidera continues to provide patients with\n\neffective oral treatment for MS that is supported by a growing\n\nbody of data reinforcing its benefits and favorable safety\n\nprofile,\" and when Williams said that \"there's no real change in\n\nthe benefit/risk profile of the drug for patients with MS. So\n\nit's pretty much status quo at the moment.\" The plaintiffs argue\n\nthat Ferguson and Hall may be understood to have had this knowledge\n\nbecause, as the complaint alleges, Dr. Thrower discussed with\n\nFerguson and Hall his research that Tecfidera could cause lower\n\nlymphocyte counts than the company originally disclosed.\n\n\n - 25 -\n\f But, the fact that Dr. Thrower and researchers like Dr.\n\nZamvil concluded on the basis of their own research that Tecfidera\n\ncould cause lower lymphocyte counts than was originally understood\n\ndoes not, in and of itself, suffice to contradict the assertions\n\nthat Tecfidera was \"effective\" at treating MS and that this fact\n\nwas \"supported by a growing body of research.\" For that reason,\n\neven if we were to assume that the statement was plausibly\n\nmisleading and that Hall's and Ferguson's knowledge of Dr.\n\nThrower's research -- or any of the other research cited by the\n\nplaintiffs -- could be imputed to the company as a whole, that\n\nknowledge would still fail to create the \"strong inference\" of\n\nscienter on Biogen's part. That is so, we emphasize, even if we\n\nwere to accept the plaintiffs' theory of corporate scienter.\n\n Similarly, the plaintiffs argue that Dr. Thrower's\n\nstatements to Hall and Ferguson show that the company knew that\n\nthe drug's usage rates were lower than was publicized. But, we\n\nfail to see how the knowledge that one doctor -- whose patients\n\nconstituted less than 0.2% of all Tecfidera users -- would no\n\nlonger prescribe Tecfidera could suffice to show that the company\n\nunderstood the drug's usage rate to be at odds with any statement\n\nregarding its usage that had been made publicly. For that reason,\n\nonce again, Ferguson and Hall's knowledge of what Dr. Thrower had\n\nallegedly told them about his own experience with the drug does\n\nnot suffice to establish the \"strong inference\" of scienter, even\n\n\n - 26 -\n\fif we were inclined to impute what Ferguson and Hall knew to the\n\ncompany overall in the way that the plaintiffs contend that we\n\nmust under their expansive theory of \"corporate scienter.\"7\n\n The plaintiffs also point to statements made by the\n\nconfidential witnesses to support their contention that the\n\ncomplaint adequately alleges that employees in the company knew\n\nthat the statements by Kingsley that the District Court found to\n\nbe \"plausibly misleading\" were untrue. They then proceed to argue\n\nfrom that contention that the complaint's allegations suffice to\n\ncreate a \"strong inference\" of scienter on the company's part, in\n\nconsequence of Kingsley's plausibly misleading statements\n\nregarding the drug's usage. But, the alleged statements at issue\n\neither were not made with sufficient particularity, see Biogen I,\n\n875 F.3d at 42 (noting that the confidential witness statements\n\ndid not \"quantify the magnitude of the sales decline at the company\n\nlevel. [Nor did they] explain with any precision\" the cause of\n\n\n\n 7 Plaintiffs' reliance on CW 12's statements as evidence of\ncorporate scienter does little to strengthen their position.\nAccording to the plaintiffs, Craig Brown, Biogen's Regional\nDirector, noted that CW 12's regional sales numbers declined after\nDr. Thrower stopped prescribing Tecfidera to his patients. This\nstatement simply speaks to the fact that individuals in the company\nwere aware that, at least for a time, Dr. Thrower's decision would\nhave an impact on their sales in the Atlanta region where CW 12\nwas stationed. CW 12's observation does not indicate that anyone\nin the company knew Kingsley's statements about Tecfidera's\ndiscontinuation rate nationally were in any way untrue such that\nthose observations would create the \"strong inference\" of scienter\nnecessary to survive a motion to dismiss under the PSLRA.\n\n\n - 27 -\n\fthe decline in sale) or did not describe events that took place\n\nbefore Kingsley's three statements concerning the drug's\n\ndiscontinuation rates, see id. at 42-43 (describing \"a significant\n\ntiming problem\" with many of the confidential witness statements,\n\nas most of them described declines in Tecfidera sale that occurred\n\nafter Kingsley made the three plausibly misleading statements at\n\nissue here).\n\n For example, plaintiffs reference the statements made by\n\nCW 11 that Biogen was aware that Tecfidera sales would decline\n\nafter the PML death was announced and \"drastically lowered sales\n\ntargets for the drug.\" But, the plaintiffs never explain how\n\nreductions in sales targets in November of 2014 indicate that that\n\nanyone in the company was aware that discontinuation rates were\n\nhigher than Kingsley's statements indicated in early 2015. After\n\nall, the fact that the company reduced sales targets does not,\n\nnecessarily, mean that actual sales fell at a commensurate rate.\n\nAccordingly, while these statements do indicate that employees in\n\nthe company were concerned about the impact the PML death would\n\nhave on Tecfidera sales, they do not create a \"strong inference\"\n\nthat someone in the company's management team knew that Kingsley's\n\ngeneralized statements about the drug's discontinuation rates were\n\nuntrue.\n\n Similarly, CW 14's statements that there were \"lots of\n\ndiscontinuations\" in the New York region after the PML death was\n\n\n - 28 -\n\fannounced do not suffice to support the plaintiffs attempt to show\n\nthat the District Court erred in dismissing the claims against\n\nBiogen. The fact that one employee observed an unspecified\n\nincrease in discontinuation rates in New York in November of 2014\n\ndoes not create a strong inference that the Biogen management team\n\nknew that Kingsley's early 2015 statements about the drug's\n\ndiscontinuation rates company-wide were untrue. In fact,\n\naccording to the complaint, at the time that Kingsley made those\n\nstatements, the company had already disclosed to investors that\n\nthe drug's discontinuation rates were higher than expected.\n\n Finally, the plaintiffs point to CW 1's statement about\n\nhaving participated in \"emergency\" conference calls in December of\n\n2014 and January of 2015 regarding Tecfidera's declining sales.\n\nBut, the plaintiffs do not describe what specifically was\n\ncommunicated to the employees during those calls, and nothing in\n\nthe complaint suggests that CW 1 received any information during\n\nthem that directly conflicted with the four \"plausibly misleading\"\n\nstatements attributed to Kingsley.\n\n Moreover, the few confidential witness statements\n\nalleged in the complaint that were particularized and\n\nappropriately timed concerned narrow slices of the market for the\n\nsale of the drug. For example, CW 17 -- an Executive Territory\n\nBusiness Manager -- reported that his Tecfidera sales dropped 25%\n\nafter the PML death. But, the fact that his individual sales\n\n\n - 29 -\n\fexperienced a decline does not indicate that he knew that\n\nKingsley's generalized assessments of the magnitude of the change\n\nin discontinuation rates nationally for the company were untrue.8\n\n C.\n\n Finally, we address the plaintiffs \"additional scienter\"\n\narguments. Here, the plaintiffs argue that the District Court did\n\nnot properly credit their allegations that the defendants knew or\n\nshould have known that the public statements that had been made by\n\nKingsley regarding Tecfidera were misleading because Tecfidera was\n\npart of the company's \"core operations\"; many of the plausibly\n\nmisleading statements were \"repeated\" and \"specific\"; and Biogen\n\noperates in a highly regulated industry. We disagree.9\n\n\n\n 8 The plaintiffs additionally point to CW 15's and CW 16's\nknowledge that the company had prepared a response to a PML-linked\ndeath well in advance of the October 2014 announcement. According\nto the plaintiffs, the fact that the company did so reveals that\nthe company knew for some time that the drug could cause PML and\nyet failed to acknowledge this reality in its public disclosures.\nHowever, as stated previously with regard to the plaintiffs'\nindividual scienter claims, we fail to see how a company's\npreparation for a worst-case scenario indicates that the company\nknew that such a scenario would come to pass. Consequently, we\nsimilarly reject the plaintiffs' reliance on CW 15's and CW 16's\nstatements as they pertain to their corporate scienter\ncontentions, as we conclude that even if we were to impute CW 15's\nand CW 16's knowledge to the company, the plaintiffs would still\nfail to create a \"strong inference\" of scienter.\n 9 Plaintiffs also argue that, because only a short period of\ntime passed between the defendants' \"plausibly misleading\"\nstatements and the fraud's alleged \"disclosure,\" it can be assumed\nthat the plaintiffs knew that their statements were misleading at\nthe time that they were made. However, it appears that the\nplaintiffs did not make this argument to the District Court below,\n\n\n - 30 -\n\f In pressing the \"core operations\" theory, the plaintiffs\n\ncontend that, when \"facts critical to a business’s core operations\n\nor an important transaction generally are so apparent[,] knowledge\n\n[of those facts] may be attributed to the company and its key\n\nofficers,\" even if those officers did not, in actuality, know the\n\ncritical information. Bodri v. GoPro, Inc., 252 F. Supp. 3d 912,\n\n932 (N.D. Cal. 2017). But, as we have explained, the plaintiffs\n\nfail to identify any allegations in the complaint that show that\n\nanyone in the company had knowledge regarding the drug's safety\n\nprofile and sales that contradicted the company's public\n\nrepresentations. So, the \"core operations\" theory also does little\n\nto aid the plaintiffs' case. S. Ferry LP, No. 2 v. Killinger, 542\n\nF.3d 776, 784-85 (9th Cir. 2008) (\"As a general matter, 'corporate\n\nmanagement's general awareness of the day-to-day workings of the\n\ncompany's business does not establish scienter -- at least absent\n\nsome additional allegation of specific information conveyed to\n\nmanagement and related to the fraud' or other allegations\n\nsupporting scienter.\" (quoting Metzler Inv. GmbH v. Corinthian\n\nColls., Inc., 534 F.3d 1068, 1087 (9th Cir. 2008))).\n\n In this regard, the precedents on which the plaintiffs\n\nrely -- see, e.g., Stratte-McClure v. Morgan Stanley, 784 F. Supp.\n\n2d 373, 389 (S.D.N.Y. 2011); Crowell v. Ionics, Inc., 343 F. Supp.\n\n\nand we thus do not consider it. See United States v. Swiss American\nBank, Ltd., 191 F.3d 30, 37 (1st Cir. 1999).\n\n\n - 31 -\n\f2d 1, 19 (D. Mass. 2004) -- are distinguishable. In each, the\n\nrecord contained much stronger evidence of knowledge within the\n\ncompany of fraudulent practices than is set forth in the\n\nallegations in the plaintiffs' complaint here. Compare Crowell,\n\n343 F. Supp. 2d at 19 (explaining that the low-level witnesses had\n\nreceived an email stating that a mid-level vice president ordered\n\na company-wide practice of fraudulently inflating sales numbers\n\nand thus that, even if the corporate officers were personally\n\nunaware of the fraudulent sales practice, generally -- that\n\nknowledge could be imputed to them though the core operations\n\ntheory), with Lenartz v. Am. Superconductor Corp., 879 F. Supp. 2d\n\n167, 183 n.9 (D. Mass. 2012) (rejecting the plaintiffs' core\n\noperations theory where the facts offered to prove that the\n\ndefendant's actions were fraudulent were \"less clear\" than the\n\n\"particularized facts\" of Crowell).\n\n The plaintiffs' \"highly regulated industry\" theory\n\nsuffers from the same defect. According to the plaintiffs, because\n\n\"Biogen operates in the heavily regulated pharmaceuticals\n\nindustry,\" one can infer \"that the Individual Defendants were\n\nacutely aware of safety-related concerns [related to Tecfidera].\"\n\nBut, if by \"safety concerns\" the plaintiffs mean the alleged\n\nstatements from Dr. Thrower to Ferguson and Hall regarding Dr.\n\nThrower's research on Tecfidera, then we have already explained\n\nthe problem with this theory. Even if we were to assume that the\n\n\n - 32 -\n\findividual defendants were aware of Dr. Thrower's comments to\n\nFerguson and Hall, none of the six \"plausibly misleading\"\n\nstatements so clearly conflicts with Dr. Thrower's assessment of\n\nthe drug -- especially given the other safety disclosures the\n\ncompany made prior to those statements -- that there exists a\n\n\"strong inference\" that any of those six statements were made with\n\nthe intent to deceive.\n\n Nor can the plaintiffs succeed in pressing their case on\n\nappeal based on their contention that the defendants' repeated\n\nspecific statements about the drug show that they knew that their\n\npublic disclosures were misleading when made and thus that there\n\nis a \"strong inference\" of scienter not only as to them but also\n\nas to Biogen. We may assume that a plausibly misleading statement\n\nwas made publicly more than once. But nothing in the complaint\n\nalleges facts that indicate that anyone in Biogen's management had\n\nknowledge that was sufficiently in conflict with any of the six\n\n\"plausibly misleading\" public statements to permit the conclusion\n\nthat the company had the requisite intent to deceive in permitting\n\nthose statements to have been made and in not having corrected\n\nthem in some respect.\n\n\n IV.\n\n For the foregoing reasons we affirm the District Court's\n\njudgment granting the motion to dismiss.\n\n\n\n - 33 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: METZLER ASSET MANAGEMENT GMBH, on Behalf of Itself and All Other Similarly Situated Parties; Erste-Sparinvest Kapitalanlagegesellschaft mbH, on Behalf of Itself and All Other Similarly Situated Parties, Plaintiffs, Appellants/Cross-Appellees, v. Stuart A. KINGSLEY; George A. Scangos; Paul J. Clancy ; Biogen Inc., Defendants, Appellees/Cross-Appellants.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-06-27\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNos. 18-1369, 18-1472\\n\\nMETZLER ASSET MANAGEMENT GMBH, on behalf of itself and all other\\n similarly situated parties;\\n\\n ERSTE-SPARINVEST KAPITALANANLAGEGESELLSCHAFT MBH, on behalf of\\n itself and all other similarly situated parties,\\n\\n Plaintiffs, Appellants/Cross-Appellees,\\n\\n v.\\n\\n STUART A. KINGSLEY; GEORGE A. SCANGOS; PAUL J. CLANCY;\\n BIOGEN INC.,\\n\\n Defendants, Appellees/Cross-Appellants.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. F. Dennis Saylor, IV, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Stahl, and Barron,\\n Circuit Judges.\\n\\n\\n Gregg S. Levin, with whom Christopher F. Moriarity, William\\nH. Narwold, Motley Rice LLC, Jonathan Gardner, Labaton Sucharow\\nLLP, Robert M. Rothman, Mark T. Millkey, Susan K. Alexander, Andrew\\nS. Love, and Robbins Geller Rudman & Dowd LLP were on brief, for\\nappellants/cross-appellees.\\n James R. Carroll, with whom Michael S. Hines, Sara J. van\\nVliet, and Skadden, Arps, Slate, Meagher & Flom LLP were on brief,\\nfor appellees/cross-appellants.\\n\\fJune 27, 2019\\n\\f BARRON, Circuit Judge. Metzler Asset Management GmbH\\n\\n(\\\"Metzler\\\") and Erste–Sparinvest Kapitalanlagegesellschaft mbH\\n\\n(\\\"Erste–Sparinvest\\\") have been designated the lead plaintiffs,\\n\\npursuant to the Private Securities Litigation Reform Act\\n\\n(\\\"PSLRA\\\"), 15 U.S.C. § 78u-4, in a federal securities class action\\n\\nthat they brought against Biogen Inc. and three Biogen executives\\n\\n(\\\"Biogen\\\"). The suit alleges that Biogen and its executives\\n\\ncommitted fraud, in violation of regulations promulgated by the\\n\\nSecurities and Exchange Commission pursuant to the Securities\\n\\nExchange Act, 15 U.S.C. § 78a et seq, by falsely stating that\\n\\nBiogen's product, Tecfidera, was both safer and more widely used\\n\\nthan it was. The putative class is comprised of all purchasers of\\n\\nBiogen common stock from July 23, 2014, through July 23, 2015.\\n\\n The defendants moved to dismiss the suit on claim\\n\\npreclusion grounds, based on this Court's earlier decision in In\\n\\nre Biogen Inc. Securities Litigation, 857 F.3d 34 (1st Cir. 2017)\\n\\n(\\\"Biogen I\\\"), and for failing to plead facts \\\"giving rise to a\\n\\nstrong inference\\\" of scienter, 15 U.S.C. § 78u-4(b)(2)(A), as the\\n\\nPSLRA requires that a complaint alleging fraud must in order for\\n\\nit to survive such a motion. The District Court rejected the\\n\\ndefendants' claim preclusion argument but dismissed the suit under\\n\\nthe PSLRA for failing to adequately plead scienter. We affirm.\\n\\n\\n\\n\\n - 3 -\\n\\f I.\\n\\n The corporate defendant, Biogen, is a multinational\\n\\nbiotechnology company based in Cambridge, Massachusetts. Its\\n\\nstock trades on the NASDAQ. Id. at 37. The three individual\\n\\ndefendants are George Scangos, who was Biogen's Chief Executive\\n\\nOfficer from July 23, 2014, through July 23, 2015; Paul Clancy,\\n\\nwho was Biogen's Chief Financial Officer and Executive Vice\\n\\nPresident of Finance during that time; and Stuart Kingsley, who\\n\\nwas its Executive Vice President of Global Commercial Operations\\n\\nduring the same period. Id.\\n\\n The plaintiffs' complaint sets forth the following\\n\\nallegations. Biogen developed and sold a United States Food and\\n\\nDrug Administration (\\\"FDA\\\") approved drug for multiple sclerosis\\n\\n(\\\"MS\\\") called Tecfidera during the relevant time period. Tecfidera\\n\\naccounted for a third of Biogen's total revenue in this time frame.\\n\\nAs of July 23, 2014, Tecfidera bore a label that warned patients\\n\\ntaking the drug of an increased risk of developing lymphopenia -- a\\n\\ncondition of having low lymphocyte counts, leading to a weakened\\n\\nimmune system.\\n\\n On October 22, 2014, Biogen held a third-quarter\\n\\nearnings call with its investors. The company announced for the\\n\\nfirst time publicly that an MS patient who had been regularly\\n\\ntaking Tecfidera had died of progressive multifocal\\n\\nleukoencephalopathy (\\\"PML\\\"), a rare neurological disease which\\n\\n\\n - 4 -\\n\\fcounts lymphopenia as one of its precursors. One month later,\\n\\nBiogen amended the Tecfidera label to include a warning about the\\n\\nrisk of PML.\\n\\n On January 29, 2015, Biogen provided full-year revenue\\n\\nguidance for 2015. It predicted a 14% to 16% overall growth rate\\n\\nfor the company for the year. However, on April 24, 2015, Biogen\\n\\nreleased first-quarter financial results for the year that showed\\n\\nthat Tecfidera's revenue had fallen below the market estimates.\\n\\n On July 24, 2015, Biogen released its second-quarter\\n\\nearnings report. The report amended the company's 2015 revenue\\n\\nguidance. It lowered Biogen's predicted revenue growth from 14-16%\\n\\nto 6-8% for the year. Biogen attributed its tempered expectations,\\n\\nin part, to slowing Tecfidera growth.\\n\\n Biogen's stock fell by more than 20% in one day due to\\n\\nthe second quarter earnings report. On October 9, 2015, Biogen\\n\\nannounced that Kingsley was leaving the company. Less than two\\n\\nweeks later, the company announced that it was cutting roughly 11%\\n\\nof its workforce. Id. at 39.\\n\\n On August 18, 2015, a putative federal securities fraud\\n\\nclass action was filed in the District of Massachusetts against\\n\\nthe company and the same three individual defendants in the case\\n\\nbefore us in this appeal. Id. at 36-39. The putative class in\\n\\nthat action consisted of persons who had purchased common stock of\\n\\nBiogen between January 29, 2015, and July 23, 2015. Tehrani v.\\n\\n\\n - 5 -\\n\\fBiogen, Inc., No. 15-13189, 2015 WL 7302132, at *1 (D. Mass. Nov.\\n\\n18, 2015). The suit alleged that Biogen and the three executives\\n\\nhad fraudulently misled investors, in violation of Sections 10(b)1\\n\\nand 20(a)2 of the Securities Exchange Act of 1934, see 15 U.S.C.\\n\\n§§ 78j(b), 78t(a), regarding Tecfidera's usage rates in light of\\n\\nthe PML incident. Tehrani, 2015 WL 7302132, at *1.\\n\\n Notice of the action was published pursuant to the PSLRA,\\n\\nwhich establishes procedures for bringing securities class\\n\\nactions. See id. at *2. In accordance with those procedures, on\\n\\nNovember 17, 2015, the District Court preliminarily appointed GBR\\n\\nGroup Ltd. (\\\"GBR\\\") \\\"lead plaintiff\\\" in the matter, a status that\\n\\nCongress created in the PSLRA \\\"to increase the chances that\\n\\nsecurities fraud cases are brought by investors who have\\n\\nsubstantial and genuine interests in the litigation.\\\" Id.\\n\\n On January 19, 2016, GBR filed an amended complaint.\\n\\nThe amended complaint changed the class period, such that it ran\\n\\nfrom December 2, 2014, through July 23, 2015. Biogen I, 857 F.3d\\n\\nat 36.\\n\\n\\n 1\\n Section 10(b), as set forth in 15 U.S.C. § 78j(b), makes it\\nunlawful \\\"[t]o use or employ, in connection with the purchase or\\nsale of any security . . . any manipulative or deceptive device or\\ncontrivance in contravention of such rules and regulations as the\\nCommission may prescribe.\\\"\\n 2\\n Section 20(a), as set forth in 15 U.S.C. § 78t(a), creates\\n\\\"[j]oint and [s]everal\\\" liability for \\\"[e]very person who,\\ndirectly or indirectly, controls any person liable under any\\nprovision of this chapter or of any rule or regulation thereunder.\\\"\\n\\n\\n - 6 -\\n\\f Biogen moved to dismiss the complaint. The District\\n\\nCourt granted that motion as to both the Section 10(b) and 20(a)\\n\\nclaims. See Biogen I, 193 F. Supp. 3d 5, 56 (D. Mass. 2016).\\n\\n GBR moved to vacate the order of dismissal and for leave\\n\\nto file a second amended complaint with the District Court under\\n\\nFederal Rules 59(e) and 60(b)(2). In re Biogen Inc. Sec. Litig.,\\n\\nNo. 15-13189, 2016 WL 5660329, at *3 (D. Mass. Sept. 28, 2016).\\n\\nThe motion requested that the District Court vacate the order of\\n\\ndismissal based on the new scienter allegations in the proposed\\n\\nsecond amended complaint. Id. The District Court denied the\\n\\nmotion. Id. at *6. The District Court determined that the\\n\\nplaintiffs could have discovered the evidence on which they were\\n\\nbased earlier with reasonable diligence. Id.\\n\\n GBR appealed both the dismissal of the complaint for\\n\\nfailure to state a claim as well as the denial of its motion to\\n\\nvacate that dismissal and for leave to file the second amended\\n\\ncomplaint. As discussed below, that appeal ultimately ended in\\n\\naffirmance of the District Court. During the pendency of the\\n\\nappeal in that case, however, separate Biogen stockholders filed\\n\\na subsequent putative class action in the District Court on October\\n\\n20, 2016, against Biogen and certain of its executives on behalf\\n\\nof a class of investors in the company. Metzler Asset Mgmt. GmbH\\n\\nv. Kingsley (\\\"Biogen II\\\"), 305 F. Supp. 3d 181, 205, 202 (D. Mass.\\n\\n2018). They alleged that, through its comments to investors,\\n\\n\\n - 7 -\\n\\fBiogen misled the market about Tecfidera's safety profile and\\n\\ndiscontinuation rates.\\n\\n This new action is the one before us on appeal. It,\\n\\ntoo, asserts violations of Sections 10(b) and 20(a) of the\\n\\nSecurities Exchange Act. Nonetheless, it differs from the first\\n\\nputative class action that had been filed against Biogen in three\\n\\nways. First, the class period for the putative class in the new\\n\\nsuit began on July 23, 2014, as opposed to December 2, 2014.\\n\\nSecond, the complaint in the new suit alleged that Biogen had made\\n\\nadditional misleading statements not referenced in the prior suit\\n\\nand also set forth statements from confidential witnesses (\\\"CWs\\\")\\n\\nto prove scienter that had not been referenced in the complaint in\\n\\nthe earlier suit. These newly alleged statements included ones\\n\\nthat had been set forth in the amended complaint in the earlier\\n\\nputative class action that the District Court rejected for not\\n\\nhaving been included in a timely manner. See Biogen I, 857 F.3d\\n\\nat 45-46. Third, the new suit alleged that, in addition to making\\n\\nfraudulent statements regarding Tecfidera's usage rate, Biogen\\n\\nexecutives also made fraudulent statements about the drug's safety\\n\\nprofile.\\n\\n On February 1, 2017, the District Court preliminarily\\n\\nappointed Metzler and Erste–Sparinvest -- not GBR -- to be the\\n\\nlead plaintiffs in this new suit pursuant to the PSLRA. See\\n\\nMetzler Asset Mgmt. GmbH v. Kinglsey, No. 16-12101, 2017 WL 438731\\n\\n\\n - 8 -\\n\\f(D. Mass. Feb. 1, 2017). Plaintiffs also filed a motion to stay\\n\\nthe District Court proceedings pending resolution of the appeal of\\n\\nthe earlier action. That motion was denied. Id. at *4.\\n\\n On May 12, 2017, we affirmed the District Court's order\\n\\nof dismissal for lack of sufficient allegations of scienter in\\n\\nBiogen I. Biogen I, 857 F.3d at 46. In so doing, we also held\\n\\nthat the confidential witness statements provided by the\\n\\nplaintiffs were \\\"insufficiently particular\\\" to prove scienter.\\n\\nId. at 41. Finally, we denied the plaintiffs' motion to vacate\\n\\nand file a second amended complaint. Id. at 45.\\n\\n Following Biogen I, Biogen moved to dismiss the\\n\\ncomplaint in the putative class action that is now before us for\\n\\nfailing to adequately plead scienter and on claim preclusion\\n\\ngrounds. The District Court rejected the claim preclusion argument\\n\\nbut agreed that the complaint in the new suit failed to plead facts\\n\\nsufficient to create a strong inference of scienter. Biogen II,\\n\\n305 F. Supp. 3d at 205, 222. The appeal from that ruling then\\n\\nfollowed.\\n\\n II.\\n\\n To establish claim preclusion, the defendant must show\\n\\nthat \\\"(1) the earlier suit resulted in a final judgment on the\\n\\nmerits, (2) the causes of action asserted in the earlier and later\\n\\nsuits are sufficiently identical or related, and (3) the parties\\n\\nin the two suits are sufficiently identical or closely related.\\\"\\n\\n\\n - 9 -\\n\\fAirframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 14 (1st Cir.\\n\\n2010). The District Court rejected Biogen's claim preclusion\\n\\nargument. See Biogen II, 305 F. Supp. 3d at 205. The District\\n\\nCourt did not question whether Biogen I represented a final\\n\\njudgment, as it plainly did. Id. at 204. Nor did the District\\n\\nCourt rule that that the causes of action in the two cases were\\n\\nnot related or identical, as it found that they were. Id. Instead,\\n\\nthe District Court rejected the contention that GBR, as lead\\n\\nplaintiff under the PSLRA in Biogen I, could \\\"adequate[ly]\\n\\nrepresent\\\" the class in Biogen II, such that the plaintiffs in the\\n\\ntwo actions may be deemed to be sufficiently \\\"identical,\\\" as they\\n\\nmust be for claim preclusion to apply. Id. at 205.\\n\\n The District Court explained that the putative class in\\n\\nBiogen I was not certified through Federal Rule of Civil Procedure\\n\\n23 and thus remained merely a \\\"proposed class action[.]\\\" Id.\\n\\n(citing Smith v. Bayer Corp., 564 U.S. 299, 316 (2011)). For that\\n\\nreason, the District Court ruled, GBR could not, by virtue of its\\n\\nrole as the lead plaintiff under the PSLRA in Biogen I, be deemed\\n\\nto have \\\"adequate[ly] represented\\\" the putative class in Biogen\\n\\nII.\\n\\n In reaching this conclusion about whether the members of\\n\\nthe putative class in Biogen II were adequately represented by GBR\\n\\nin Biogen I, the District Court relied on the Supreme Court's\\n\\nruling in Smith. There, the Supreme Court held that a consumer's\\n\\n\\n - 10 -\\n\\fmotion for class certification was not precluded by a previous\\n\\ndecision denying a similar motion for class certification to a\\n\\ndifferent party. Smith, 564 U.S. at 304-05. The Court stated,\\n\\n\\\"[w]e could hardly have been more clear [in Taylor v. Sturgell,\\n\\n553 U.S. 880 (2008)] that a 'properly conducted class action,'\\n\\nwith binding effect on nonparties, can come about in federal courts\\n\\nin just one way -- through the procedure set out in Rule 23.\\\" Id.\\n\\nat 316.\\n\\n Biogen argues that the District Court erred in this\\n\\naspect of its claim preclusion analysis. Biogen contends that the\\n\\nPSLRA's process for appointing a lead plaintiff sufficed to ensure\\n\\nthat GBR, in its role as lead plaintiff of the putative class in\\n\\nBiogen I, did adequately represent the interests of the putative\\n\\nclass in Biogen II, even though the class in Biogen I had not been\\n\\ncertified at the time of the dismissal of that action. Thus,\\n\\nBiogen contends that the dismissal in Biogen I could be preclusive\\n\\nof the claims brought by the putative class in Biogen II, even\\n\\nthough GBR is not the lead plaintiff for that putative class.\\n\\n In challenging Biogen's claim preclusion argument, the\\n\\nappellants contend that the protections afforded absent parties by\\n\\nthe PSLRA are not as robust as those afforded by the requirements\\n\\nset forth in Rule 23 itself, due to the preliminary nature of the\\n\\nPSLRA's lead plaintiff appointment procedures. Indeed, as\\n\\nmultiple courts have recognized, nothing about lead plaintiff\\n\\n\\n - 11 -\\n\\fappointment pursuant to the PSLRA is \\\"dispositive with respect to\\n\\nthe ultimate certification of the class and designation of a class\\n\\nrepresentative.\\\" Greebel v. FTP Software, Inc., 939 F. Supp. 57,\\n\\n62 n.4 (D. Mass 1996); Dempsey v. Vieau, 130 F. Supp. 3d 809, 813\\n\\n(S.D.N.Y. 2015) (\\\"Lead plaintiff designation does not abnegate the\\n\\nnecessity of class certification . . . .\\\"). Consequently, the\\n\\nargument proceeds, lead plaintiff appointment pursuant to the\\n\\nPSLRA is simply too preliminary for a lead plaintiff of an\\n\\nas-yet-uncertified class to be deemed on that basis alone to be an\\n\\nadequate representative for claim preclusion purposes of a class\\n\\nin a subsequent action. Dempsey, 130 F. Supp. 3d at 813.\\n\\n In addition to this potential problem with Biogen's\\n\\nclaim preclusion contention here, there is another that is more\\n\\nparticular to this case. The proposed class in Biogen II includes\\n\\nstockholders who purchased Biogen securities between July 23,\\n\\n2014, and December 2, 2014. This group of purchasers was not\\n\\nincluded in the class proposed in Biogen I. Biogen does not\\n\\nexplain how the lead plaintiff in Biogen I could be thought to\\n\\nhave adequately represented those members of the proposed class in\\n\\nBiogen II who are not only represented by different lead plaintiffs\\n\\nbut also were not even members of the putative class in Biogen I.\\n\\n We need not, however, resolve the claim preclusion issue\\n\\ndefinitively here. Even if we were to assume that the adequate\\n\\nrepresentation requirement could not be satisfied here, such that\\n\\n\\n - 12 -\\n\\fthe plaintiffs' claim is not precluded, the suit in Biogen II would\\n\\nstill have to be dismissed. As we next explain, the District Court\\n\\nproperly ruled that, under the PSLRA, the plaintiffs failed to\\n\\nadequately plead scienter for purposes of surviving a motion to\\n\\ndismiss for failure to state a claim.\\n\\n III.\\n\\n To state a claim under Section 10(b)3 of the Securities\\n\\nExchange Act, plaintiffs must adequately plead \\\"(1) a material\\n\\nmisrepresentation or omission; (2) scienter; (3) a connection with\\n\\nthe purchase or sale of a security; (4) reliance; (5) economic\\n\\nloss; and (6) loss causation.\\\" Biogen I, 857 F.3d at 41. Scienter\\n\\nis defined as either the \\\"intentional or willful conduct designed\\n\\nto deceive or defraud investors\\\" or \\\"a high degree of\\n\\nrecklessness.\\\" Id. (internal quotations omitted).\\n\\n Under the PSLRA, to survive a motion to dismiss for\\n\\nfailure to state a claim, plaintiffs must \\\"state with particularity\\n\\nfacts giving rise to a strong inference that the defendant acted\\n\\nwith [scienter].\\\" 15 U.S.C. § 78u-4(b)(2)(A) (emphasis added).\\n\\n\\\"For an inference of scienter to be strong, 'a reasonable person\\n\\n\\n 3 As the plaintiffs' Section 20(a) claims are necessarily\\ndependent on the existence of a Section 10(b) violation, our\\nanalysis need only address the deficiencies in the plaintiffs'\\nSection 10(b) claims in order to uphold the District Court's\\ndecision. See ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46,\\n67 (1st Cir. 2008) (\\\"The plain terms of [S]ection 20(a) indicate\\nthat it only creates liability derivative of an underlying\\nsecurities violation.\\\").\\n\\n\\n - 13 -\\n\\fwould [have to] deem [it] cogent and at least as compelling as any\\n\\nopposing inference one could draw from the facts alleged.'\\\" Biogen\\n\\nI, 857 F.3d at 41 (alterations in original) (quoting Tellabs, Inc.\\n\\nv. Makor Issues & Rights, Ltd., 551 U.S. 308, 324 (2007)).\\n\\n The District Court dismissed the plaintiffs' suit in\\n\\nBiogen II after determining that none of the statements that the\\n\\nplaintiffs allege that the individual Biogen executive defendants\\n\\nmade were of a kind that could give rise to the \\\"strong inference\\\"\\n\\nof scienter that the PSLRA requires. On that basis, the District\\n\\nCourt concluded that the claims against each of these executives\\n\\nindividually, as well as the claims against Biogen itself, must be\\n\\ndismissed. Cf. Biogen I, 857 F.3d at 37, 41. Our review of the\\n\\nDistrict Court's ruling on scienter is de novo. See id. at 41.\\n\\n To make their case on appeal, the plaintiffs focus on\\n\\nsix statements in their complaint that the District Court held, in\\n\\nmaking its scienter ruling, were at least \\\"plausibly misleading.\\\"\\n\\nBiogen II, 305 F. Supp. 3d at 206, 212.4 These statements fall\\n\\ninto two general categories: (1) those that pertain to Tecfidera's\\n\\n\\n\\n\\n 4 For the purpose of this appeal, we will assume, favorably\\nto plaintiffs, that the District Court was correct in concluding\\nthat these six statements were, in fact, \\\"plausibly misleading.\\\"\\nAlthough we do not definitively conclude that these six statements\\nare plausibly misleading, we will nonetheless refer to them\\nthroughout the opinion as the six \\\"plausibly misleading\\\"\\nstatements for clarity's sake.\\n\\n\\n - 14 -\\n\\fsafety profile, and (2) those that pertain to Tecfidera's usage\\n\\nrate. We consider the statements in each category in turn.\\n\\n Before doing so, however, we note that although the\\n\\nstatements that we focus on were made by, respectively, Alfred\\n\\nSandrock (Biogen's Chief Medical Officer), Doug Williams (Biogen's\\n\\nExecutive Vice President of Research and Development) and\\n\\nKingsley, only Kingsley is a defendant in his own right. Thus, it\\n\\nis unclear what role, if any, the statements by Sandrock and\\n\\nWilliams serve in the plaintiffs' fraud claims against Kingsley,\\n\\nScangos, and Clancy. But, even if we assume that Williams's and\\n\\nSandrock's statements somehow could be imputed to these three\\n\\nindividual defendants, as the plaintiffs appear implicitly to\\n\\nassume in their briefing to us in contending that the District\\n\\nCourt erred in dismissing the claims against them, the plaintiffs'\\n\\nargument would still fail.\\n\\n A.\\n\\n The first category of statements on which the plaintiffs\\n\\nin this appeal rely with respect to the claims against the\\n\\nindividual defendants concerns Tecfidera's safety profile. The\\n\\nplaintiffs point to two such statements, the first of which was\\n\\nmade on September 11 by Sandrock. According to the complaint,\\n\\nSandrock stated at that time that \\\"Tecfidera continues to provide\\n\\npatients with effective oral treatment for MS that is supported by\\n\\n\\n\\n\\n - 15 -\\n\\fa growing body of data reinforcing its benefits and favorable\\n\\nsafety profile.\\\"\\n\\n The complaint alleges that Sandrock made this statement\\n\\nbefore Biogen's October announcement of the PML-related death, and\\n\\nthe plaintiffs do not contend that any of the individual defendants\\n\\nknew about that death before Sandrock made this statement.5 The\\n\\nplaintiffs nevertheless contend that the District Court erred in\\n\\nconcluding that the complaint failed adequately to allege that\\n\\nSandrock made the statement with the \\\"intentional or willful\\\"\\n\\ndesign to deceive investors.\\n\\n To make this case, the plaintiffs point out that, in\\n\\nAugust and September of 2014, Dr. Ben Thrower, the medical director\\n\\nat the Shepherd Center in Atlanta, notified Keith Ferguson, the\\n\\ncompany's senior sales director, and Eric Hall, the medical science\\n\\nliaison for Biogen, that his research showed that patients who\\n\\nwere taking Tecfidera had a higher risk of developing low\\n\\nlymphocyte counts than Biogen had originally disclosed. The\\n\\ncomplaint further alleges that, for this reason, Dr. Thrower chose\\n\\nto discontinue Tecfidera prescriptions for approximately 200 of\\n\\nhis patients and to stop issuing new prescriptions for the drug.\\n\\n\\n 5\\n CW 15's statements that Biogen had already prepared a\\nresponse for a potential PML-related death is not to the contrary.\\nThat the company had a PML-related contingency in place for a drug\\nthat it already knew -- and disclosed -- caused low lymphocyte\\ncounts is not surprising and does not indicate that Sandrock made\\nthe statement at issue deceitfully.\\n\\n\\n - 16 -\\n\\fThe complaint also alleges that he told Ferguson and Hall about\\n\\nthis development.\\n\\n But, according to the complaint, Sandrock in his\\n\\nSeptember 2014 statement said only that Tecfidera was \\\"effective\\\"\\n\\nat treating MS and that its safety profile was \\\"supported by a\\n\\ngrowing body of data.\\\" Nothing about Dr. Thrower's alleged\\n\\nstatements to Hall and Ferguson about his own research\\n\\nfindings -- especially given the limited slice of the market on\\n\\nwhich those findings were based -- contradicts the statements that\\n\\nthe complaint alleges that Sandrock made. See Geffon v. Micrion\\n\\nCorp., 249 F.3d 29, 36 (1st Cir. 2001) (\\\"Even if the statements at\\n\\nissue were material and false or misleading, the evidence does not\\n\\nsupport a finding that defendants knew the statements would\\n\\nmaterially mislead the investing public.\\\" (emphasis omitted)).\\n\\nThus, even assuming that Sandrock's statement was \\\"plausibly\\n\\nmisleading\\\" and made with knowledge of Thrower's conclusions, we\\n\\nfind insufficient support for a \\\"strong inference\\\" that Sandrock\\n\\nspoke with the intent to deceive investors. And thus, the\\n\\nallegations regarding Sandrock fail to establish a \\\"strong\\n\\ninference\\\" of scienter as to even him, let alone as to any\\n\\nindividual defendant.\\n\\n The only other \\\"plausibly misleading\\\" statement that\\n\\nconcerns the drug's safety profile to which the plaintiffs point\\n\\nis one that, according to the complaint, Williams made in April of\\n\\n\\n - 17 -\\n\\f2015. In it, Williams allegedly stated that \\\"there's no real\\n\\nchange in the benefit/risk profile of the drug for patients with\\n\\nMS. So it's pretty much status quo at the moment.\\\"\\n\\n By April of 2015, according to the complaint, Biogen had\\n\\nalready disclosed the PML death and updated the drug's label to\\n\\naccount for the increased understanding of its risk. Given that\\n\\nnone of the findings by the researchers that the plaintiffs cite\\n\\naver that the drug was less safe than these revised disclosures,\\n\\nwe do not see how the plaintiffs can plausibly suggest that\\n\\nWilliams was aware that the drug was less safe than these revised\\n\\ndisclosures suggested. Therefore, even if, drawing all inferences\\n\\nin favor of the plaintiff, one could conclude that Williams's\\n\\nstatement -- read in a vacuum -- was misleading, one could not\\n\\ndraw a \\\"strong inference\\\" from that statement that it was said\\n\\nwith an \\\"intent to deceive,\\\" given what the record shows about\\n\\nBiogen's earlier disclosures and the state of Williams's knowledge\\n\\nof the drug's safety profile. See City of Dearborn Heights Act\\n\\n345 Police & Fire Ret. Sys. v. Waters Corp., 632 F.3d 751, 760\\n\\n(1st Cir. 2011) (\\\"[A]ttempts to provide investors with warnings of\\n\\nrisks generally weaken the inference of scienter.\\\" (alteration in\\n\\noriginal) (quoting Ezra Charitable Tr. v. Tyco Int'l, Ltd., 466\\n\\nF.3d 1, 8 (1st Cir. 2006)).\\n\\n We turn, then, to the four \\\"plausibly misleading\\\"\\n\\nstatements that pertain to Tecfidera's usage rates. All four\\n\\n\\n - 18 -\\n\\fstatements were allegedly made by Kingsley, who is an individual\\n\\ndefendant. But, we find no basis for concluding that any of these\\n\\nstatements permit us to infer the necessary intent to deceive that\\n\\ncould suffice to create the \\\"strong inference\\\" of scienter that\\n\\nthe PSLRA requires. And, even the cumulative weight of these\\n\\nstatements and the CW evidence discussed below would not suffice.\\n\\n We first address the January 29, 2015 statement by\\n\\nKingsley that \\\"Tecfidera [was] on track to become the most\\n\\nprescribed therapy for MS worldwide.\\\" The plaintiffs argue that\\n\\nthis statement was misleading and creates the \\\"strong inference\\\"\\n\\nof scienter on Kingsley's part, because at the time of the\\n\\nstatement, Kingsley knew about both the PML death and about\\n\\nTecfidera's declining sales and discontinuation rates.\\n\\n At the time that Kingsley made the statement, however,\\n\\nBiogen had already disclosed to the public the news of the PML\\n\\ndeath, had already changed the drug's label, had already publicized\\n\\nthat it expected the drug's growth rate to \\\"slow,\\\" and had already\\n\\ndisclosed that the drug's discontinuation rates were higher than\\n\\nexpected. Moreover, during the conference call on which Kingsley\\n\\nmade the statement at issue, he also noted that the company had\\n\\nobserved \\\"moderating\\\" growth for the drug at the end of 2014 and\\n\\nexpected that trend to continue into the new year. Given these\\n\\ndisclosures pointing against sales growth, it is hard to\\n\\ncharacterize Kingsley's statement that he believed Tecfidera would\\n\\n\\n - 19 -\\n\\f\\\"become the most-prescribed therapy for MS worldwide\\\" as anything\\n\\nother than misguided optimism. See Fire & Police Pension Ass'n of\\n\\nColo. v. Abiomed, Inc., 778 F.3d 228, 244 (1st Cir. 2015) (holding\\n\\nthat defendants' informative disclosures \\\"undercut any inference\\n\\nof scienter\\\"). Accordingly, we fail to see how one could\\n\\ncharacterize Kingsley as having had the requisite intent to deceive\\n\\nwhen he made this statement, such that one could draw the \\\"strong\\n\\ninference\\\" of scienter required by the PSLRA.\\n\\n We, turn, then, to three statements of Kingsley's from\\n\\nJanuary 29, 2015, to February 25, 2015, in which, according to the\\n\\ncomplaint, he stated that there had not been any \\\"meaningful\\n\\nchange\\\" in Tecfidera's discontinuation rates and that those rates\\n\\nwere \\\"consistent with historical averages.\\\" As previously\\n\\nmentioned, at the time that Kingsley made these statements, the\\n\\ncompany had already disclosed to investors that Tecfidera's\\n\\ndiscontinuation rate was higher than Biogen would have hoped but\\n\\nthat the company aimed to \\\"get better performance in the\\n\\ndiscontinuation rates over a longer period of time.\\\" Given the\\n\\nstatements in which Kingsley had been forthcoming about the status\\n\\nof Tecfidera's discontinuation rates, we do not see how Kingsley's\\n\\nearly 2015 refrain that the company had not seen \\\"meaningful\\n\\nchange\\\" in the drug's discontinuation rate and that the rates were\\n\\n\\\"consistent with historical averages\\\" may fairly be characterized\\n\\nas having been made with the \\\"intent to deceive.\\\" Id.\\n\\n\\n - 20 -\\n\\f In arguing otherwise, plaintiffs point to statements set\\n\\nforth in the complaint that were allegedly made by CWs. The\\n\\ncomplaint contains statements made by seventeen CWs regarding\\n\\ntheir observations on Tecfidera's sales, discontinuation rates,\\n\\nand safety profile. Ten of the seventeen CWs referenced in the\\n\\ncomplaint were also referenced in the complaint in Biogen I (CWs\\n\\n1-10).6 In addition to referring to seven new CWs (CWs 11-17),\\n\\nthe Biogen II complaint also includes multiple new statements from\\n\\nfour of the CWs (CWs 1, 3, 7, and 8) who were included in the\\n\\noriginal Biogen I complaint.\\n\\n In Biogen I, our Court found that none of the CWs'\\n\\nstatements included in that complaint were probative of the\\n\\ndefendants' scienter because they were imprecise, did not contain\\n\\ninformation that was directly communicated to the individual\\n\\ndefendants, or concerned events that occurred after the individual\\n\\ndefendants made the plausibly misleading statements at issue in\\n\\nthat case. See Biogen I, 857 F.3d at 42-43. That logic applies\\n\\nwith equal force here, insofar as the plaintiffs have reprised\\n\\ntheir argument that the statements by CWs set forth in the Biogen\\n\\nI complaint illustrate that Kingsley made his four plausibly\\n\\nmisleading statements with the requisite scienter.\\n\\n\\n 6 Of the seven \\\"new\\\" confidential witnesses included in the\\npresent complaint (CWs 11-17), two (CWs 11 and 12) were included\\nin the Second Amended Complaint that our Court rejected as untimely\\nin Biogen I. See Biogen I, 857 F.3d at 45-46.\\n\\n\\n - 21 -\\n\\f As to the additional statements not included in the\\n\\nBiogen I complaint, the District Court similarly rejected them as\\n\\nnot probative of the defendants' scienter because they failed to\\n\\n\\\"set forth specific facts\\\" that directly conflicted with the six\\n\\n\\\"plausibly misleading\\\" statements that the District Court\\n\\nhighlighted. Biogen II, 305 F. Supp. 3d at 214-15 (emphasis in\\n\\noriginal). The District Court went on to note -- based on logic\\n\\nsimilar to that which we applied in Biogen I -- that these\\n\\nstatements' relevance is further diminished by the fact that the\\n\\ncomplaint does not allege that any of the CWs ever spoke with any\\n\\nof the individual defendants or otherwise shared with them their\\n\\nobservations. Id. at 215 n.29.\\n\\n On appeal, the plaintiffs do reference the statements of\\n\\none CW in particular, CW 13. According to the plaintiffs, CW 13\\n\\nexplained that \\\"everyone in leadership had access to reporting\\n\\nmetrics\\\" and that leadership frequently monitored the \\\"new start\\\"\\n\\nrates for Tecfidera as part of the process for producing their\\n\\nsales projections.\\n\\n But, the fact that Biogen's leadership monitored\\n\\nTecfidera's reporting metrics does not in and of itself suffice to\\n\\ncreate the \\\"strong inference\\\" that Kingsley made his four\\n\\nstatements about Tecfidera's discontinuation rates with the\\n\\nrequisite intent to deceive. We would expect responsible\\n\\nmanagement to engage in such monitoring. As a result, before one\\n\\n\\n - 22 -\\n\\fcould infer what plaintiffs ask, one would need to know what\\n\\nKingsley learned from such monitoring, and whether what he learned\\n\\nwas at odds with any of his \\\"plausibly misleading\\\" statements.\\n\\nYet, the complaint alleges no facts that are illuminating in that\\n\\nregard.\\n\\n The only additional confidential witness statement that\\n\\nthe plaintiffs expressly reference in their brief's section on\\n\\nindividual scienter is the statement made by CW 1. That witness\\n\\nallegedly said that Biogen instructed Area Business Managers to\\n\\n\\\"downplay the significance of the PML death\\\" when attempting to\\n\\nconvince doctors to prescribe the drug. But, the complaint does\\n\\nnot allege that Sandrock, Williams, or Kingsley was aware of this\\n\\nalleged instruction by the company. Nor do we see why such an\\n\\ninstruction gives rise to an inference that Kingsley's public\\n\\nassessment of the drug's actual usage was inaccurate, let alone\\n\\nintentionally deceitful.\\n\\n As to the statements concerning safety, the plaintiffs\\n\\ndo not dispute that Biogen disclosed the PML death to investors\\n\\nand the public. Moreover, nothing in CW 1's alleged statement\\n\\nreveals that what Sandrock and Williams actually said publicly\\n\\nabout the drug's safety was known by them to be misleading.\\n\\n In their briefing to us, the plaintiffs expressly\\n\\nreference a number of other confidential witness statements to\\n\\nsupport their arguments that the three individual defendants\\n\\n\\n - 23 -\\n\\fpossessed the requisite scienter. But, the plaintiffs do not\\n\\nallege that any of the confidential witnesses who made these\\n\\nstatements spoke with Kingsley before he made his statements about\\n\\nthe discontinuation rates, and most of these confidential\\n\\nwitnesses are, by the complaint's account, several levels removed\\n\\nfrom the company's executive team. See Biogen II, 305 F. Supp. 3d\\n\\nat 215 n.29 (\\\"The complaint does not allege that any of\\n\\nthe . . . confidential witnesses ever spoke with one of the named\\n\\ndefendants.\\\"); see also Fire & Police Pension Ass'n of Colo., 778\\n\\nF.3d at 245 (noting that \\\"none of the witnesses were in senior\\n\\nmanagement positions, and they appear to have had relatively little\\n\\nongoing contact with senior management\\\" (internal quotations\\n\\nomitted)).\\n\\n B.\\n\\n The plaintiffs do separately argue that they can meet\\n\\ntheir burden to allege that Biogen (though, we presume, not any of\\n\\nthe individual defendants) had the requisite scienter under a\\n\\ntheory of \\\"corporate scienter.\\\" Specifically, the plaintiffs\\n\\ncontend that, if the complaint plausibly alleges that one of the\\n\\ncompany's employees made a misleading statement to investors\\n\\nwithout scienter and \\\"an individual within Biogen’s management\\n\\nteam . . . knew or had access to information\\\" that showed that\\n\\nthis misleading statement was not true, then Biogen can be found\\n\\nto have had the requisite scienter on a corporate scienter theory.\\n\\n\\n - 24 -\\n\\fThe plaintiffs then proceed to contend that the record provides\\n\\nsupport for finding a \\\"strong inference\\\" of scienter on this basis,\\n\\nin light of the six \\\"plausibly misleading\\\" statements in the\\n\\ncomplaint that we have just reviewed, the company's failure to\\n\\ncorrect them, and the allegations that the complaint sets forth\\n\\nregarding what persons within the company knew or what the company\\n\\nmay itself be charged with having known. And, the plaintiffs\\n\\nfurther contend, the District Court erred by failing even to\\n\\naddress this basis for finding scienter vis à vis the claims\\n\\nagainst Biogen.\\n\\n The plaintiffs attempt to make the case for their showing\\n\\nof corporate scienter as follows. They allege that Ferguson and\\n\\nHall knew, due to their conversation with Dr. Thrower, that\\n\\nTecfidera was less safe than the company stated publicly when\\n\\nSandrock said that \\\"Tecfidera continues to provide patients with\\n\\neffective oral treatment for MS that is supported by a growing\\n\\nbody of data reinforcing its benefits and favorable safety\\n\\nprofile,\\\" and when Williams said that \\\"there's no real change in\\n\\nthe benefit/risk profile of the drug for patients with MS. So\\n\\nit's pretty much status quo at the moment.\\\" The plaintiffs argue\\n\\nthat Ferguson and Hall may be understood to have had this knowledge\\n\\nbecause, as the complaint alleges, Dr. Thrower discussed with\\n\\nFerguson and Hall his research that Tecfidera could cause lower\\n\\nlymphocyte counts than the company originally disclosed.\\n\\n\\n - 25 -\\n\\f But, the fact that Dr. Thrower and researchers like Dr.\\n\\nZamvil concluded on the basis of their own research that Tecfidera\\n\\ncould cause lower lymphocyte counts than was originally understood\\n\\ndoes not, in and of itself, suffice to contradict the assertions\\n\\nthat Tecfidera was \\\"effective\\\" at treating MS and that this fact\\n\\nwas \\\"supported by a growing body of research.\\\" For that reason,\\n\\neven if we were to assume that the statement was plausibly\\n\\nmisleading and that Hall's and Ferguson's knowledge of Dr.\\n\\nThrower's research -- or any of the other research cited by the\\n\\nplaintiffs -- could be imputed to the company as a whole, that\\n\\nknowledge would still fail to create the \\\"strong inference\\\" of\\n\\nscienter on Biogen's part. That is so, we emphasize, even if we\\n\\nwere to accept the plaintiffs' theory of corporate scienter.\\n\\n Similarly, the plaintiffs argue that Dr. Thrower's\\n\\nstatements to Hall and Ferguson show that the company knew that\\n\\nthe drug's usage rates were lower than was publicized. But, we\\n\\nfail to see how the knowledge that one doctor -- whose patients\\n\\nconstituted less than 0.2% of all Tecfidera users -- would no\\n\\nlonger prescribe Tecfidera could suffice to show that the company\\n\\nunderstood the drug's usage rate to be at odds with any statement\\n\\nregarding its usage that had been made publicly. For that reason,\\n\\nonce again, Ferguson and Hall's knowledge of what Dr. Thrower had\\n\\nallegedly told them about his own experience with the drug does\\n\\nnot suffice to establish the \\\"strong inference\\\" of scienter, even\\n\\n\\n - 26 -\\n\\fif we were inclined to impute what Ferguson and Hall knew to the\\n\\ncompany overall in the way that the plaintiffs contend that we\\n\\nmust under their expansive theory of \\\"corporate scienter.\\\"7\\n\\n The plaintiffs also point to statements made by the\\n\\nconfidential witnesses to support their contention that the\\n\\ncomplaint adequately alleges that employees in the company knew\\n\\nthat the statements by Kingsley that the District Court found to\\n\\nbe \\\"plausibly misleading\\\" were untrue. They then proceed to argue\\n\\nfrom that contention that the complaint's allegations suffice to\\n\\ncreate a \\\"strong inference\\\" of scienter on the company's part, in\\n\\nconsequence of Kingsley's plausibly misleading statements\\n\\nregarding the drug's usage. But, the alleged statements at issue\\n\\neither were not made with sufficient particularity, see Biogen I,\\n\\n875 F.3d at 42 (noting that the confidential witness statements\\n\\ndid not \\\"quantify the magnitude of the sales decline at the company\\n\\nlevel. [Nor did they] explain with any precision\\\" the cause of\\n\\n\\n\\n 7 Plaintiffs' reliance on CW 12's statements as evidence of\\ncorporate scienter does little to strengthen their position.\\nAccording to the plaintiffs, Craig Brown, Biogen's Regional\\nDirector, noted that CW 12's regional sales numbers declined after\\nDr. Thrower stopped prescribing Tecfidera to his patients. This\\nstatement simply speaks to the fact that individuals in the company\\nwere aware that, at least for a time, Dr. Thrower's decision would\\nhave an impact on their sales in the Atlanta region where CW 12\\nwas stationed. CW 12's observation does not indicate that anyone\\nin the company knew Kingsley's statements about Tecfidera's\\ndiscontinuation rate nationally were in any way untrue such that\\nthose observations would create the \\\"strong inference\\\" of scienter\\nnecessary to survive a motion to dismiss under the PSLRA.\\n\\n\\n - 27 -\\n\\fthe decline in sale) or did not describe events that took place\\n\\nbefore Kingsley's three statements concerning the drug's\\n\\ndiscontinuation rates, see id. at 42-43 (describing \\\"a significant\\n\\ntiming problem\\\" with many of the confidential witness statements,\\n\\nas most of them described declines in Tecfidera sale that occurred\\n\\nafter Kingsley made the three plausibly misleading statements at\\n\\nissue here).\\n\\n For example, plaintiffs reference the statements made by\\n\\nCW 11 that Biogen was aware that Tecfidera sales would decline\\n\\nafter the PML death was announced and \\\"drastically lowered sales\\n\\ntargets for the drug.\\\" But, the plaintiffs never explain how\\n\\nreductions in sales targets in November of 2014 indicate that that\\n\\nanyone in the company was aware that discontinuation rates were\\n\\nhigher than Kingsley's statements indicated in early 2015. After\\n\\nall, the fact that the company reduced sales targets does not,\\n\\nnecessarily, mean that actual sales fell at a commensurate rate.\\n\\nAccordingly, while these statements do indicate that employees in\\n\\nthe company were concerned about the impact the PML death would\\n\\nhave on Tecfidera sales, they do not create a \\\"strong inference\\\"\\n\\nthat someone in the company's management team knew that Kingsley's\\n\\ngeneralized statements about the drug's discontinuation rates were\\n\\nuntrue.\\n\\n Similarly, CW 14's statements that there were \\\"lots of\\n\\ndiscontinuations\\\" in the New York region after the PML death was\\n\\n\\n - 28 -\\n\\fannounced do not suffice to support the plaintiffs attempt to show\\n\\nthat the District Court erred in dismissing the claims against\\n\\nBiogen. The fact that one employee observed an unspecified\\n\\nincrease in discontinuation rates in New York in November of 2014\\n\\ndoes not create a strong inference that the Biogen management team\\n\\nknew that Kingsley's early 2015 statements about the drug's\\n\\ndiscontinuation rates company-wide were untrue. In fact,\\n\\naccording to the complaint, at the time that Kingsley made those\\n\\nstatements, the company had already disclosed to investors that\\n\\nthe drug's discontinuation rates were higher than expected.\\n\\n Finally, the plaintiffs point to CW 1's statement about\\n\\nhaving participated in \\\"emergency\\\" conference calls in December of\\n\\n2014 and January of 2015 regarding Tecfidera's declining sales.\\n\\nBut, the plaintiffs do not describe what specifically was\\n\\ncommunicated to the employees during those calls, and nothing in\\n\\nthe complaint suggests that CW 1 received any information during\\n\\nthem that directly conflicted with the four \\\"plausibly misleading\\\"\\n\\nstatements attributed to Kingsley.\\n\\n Moreover, the few confidential witness statements\\n\\nalleged in the complaint that were particularized and\\n\\nappropriately timed concerned narrow slices of the market for the\\n\\nsale of the drug. For example, CW 17 -- an Executive Territory\\n\\nBusiness Manager -- reported that his Tecfidera sales dropped 25%\\n\\nafter the PML death. But, the fact that his individual sales\\n\\n\\n - 29 -\\n\\fexperienced a decline does not indicate that he knew that\\n\\nKingsley's generalized assessments of the magnitude of the change\\n\\nin discontinuation rates nationally for the company were untrue.8\\n\\n C.\\n\\n Finally, we address the plaintiffs \\\"additional scienter\\\"\\n\\narguments. Here, the plaintiffs argue that the District Court did\\n\\nnot properly credit their allegations that the defendants knew or\\n\\nshould have known that the public statements that had been made by\\n\\nKingsley regarding Tecfidera were misleading because Tecfidera was\\n\\npart of the company's \\\"core operations\\\"; many of the plausibly\\n\\nmisleading statements were \\\"repeated\\\" and \\\"specific\\\"; and Biogen\\n\\noperates in a highly regulated industry. We disagree.9\\n\\n\\n\\n 8 The plaintiffs additionally point to CW 15's and CW 16's\\nknowledge that the company had prepared a response to a PML-linked\\ndeath well in advance of the October 2014 announcement. According\\nto the plaintiffs, the fact that the company did so reveals that\\nthe company knew for some time that the drug could cause PML and\\nyet failed to acknowledge this reality in its public disclosures.\\nHowever, as stated previously with regard to the plaintiffs'\\nindividual scienter claims, we fail to see how a company's\\npreparation for a worst-case scenario indicates that the company\\nknew that such a scenario would come to pass. Consequently, we\\nsimilarly reject the plaintiffs' reliance on CW 15's and CW 16's\\nstatements as they pertain to their corporate scienter\\ncontentions, as we conclude that even if we were to impute CW 15's\\nand CW 16's knowledge to the company, the plaintiffs would still\\nfail to create a \\\"strong inference\\\" of scienter.\\n 9 Plaintiffs also argue that, because only a short period of\\ntime passed between the defendants' \\\"plausibly misleading\\\"\\nstatements and the fraud's alleged \\\"disclosure,\\\" it can be assumed\\nthat the plaintiffs knew that their statements were misleading at\\nthe time that they were made. However, it appears that the\\nplaintiffs did not make this argument to the District Court below,\\n\\n\\n - 30 -\\n\\f In pressing the \\\"core operations\\\" theory, the plaintiffs\\n\\ncontend that, when \\\"facts critical to a business’s core operations\\n\\nor an important transaction generally are so apparent[,] knowledge\\n\\n[of those facts] may be attributed to the company and its key\\n\\nofficers,\\\" even if those officers did not, in actuality, know the\\n\\ncritical information. Bodri v. GoPro, Inc., 252 F. Supp. 3d 912,\\n\\n932 (N.D. Cal. 2017). But, as we have explained, the plaintiffs\\n\\nfail to identify any allegations in the complaint that show that\\n\\nanyone in the company had knowledge regarding the drug's safety\\n\\nprofile and sales that contradicted the company's public\\n\\nrepresentations. So, the \\\"core operations\\\" theory also does little\\n\\nto aid the plaintiffs' case. S. Ferry LP, No. 2 v. Killinger, 542\\n\\nF.3d 776, 784-85 (9th Cir. 2008) (\\\"As a general matter, 'corporate\\n\\nmanagement's general awareness of the day-to-day workings of the\\n\\ncompany's business does not establish scienter -- at least absent\\n\\nsome additional allegation of specific information conveyed to\\n\\nmanagement and related to the fraud' or other allegations\\n\\nsupporting scienter.\\\" (quoting Metzler Inv. GmbH v. Corinthian\\n\\nColls., Inc., 534 F.3d 1068, 1087 (9th Cir. 2008))).\\n\\n In this regard, the precedents on which the plaintiffs\\n\\nrely -- see, e.g., Stratte-McClure v. Morgan Stanley, 784 F. Supp.\\n\\n2d 373, 389 (S.D.N.Y. 2011); Crowell v. Ionics, Inc., 343 F. Supp.\\n\\n\\nand we thus do not consider it. See United States v. Swiss American\\nBank, Ltd., 191 F.3d 30, 37 (1st Cir. 1999).\\n\\n\\n - 31 -\\n\\f2d 1, 19 (D. Mass. 2004) -- are distinguishable. In each, the\\n\\nrecord contained much stronger evidence of knowledge within the\\n\\ncompany of fraudulent practices than is set forth in the\\n\\nallegations in the plaintiffs' complaint here. Compare Crowell,\\n\\n343 F. Supp. 2d at 19 (explaining that the low-level witnesses had\\n\\nreceived an email stating that a mid-level vice president ordered\\n\\na company-wide practice of fraudulently inflating sales numbers\\n\\nand thus that, even if the corporate officers were personally\\n\\nunaware of the fraudulent sales practice, generally -- that\\n\\nknowledge could be imputed to them though the core operations\\n\\ntheory), with Lenartz v. Am. Superconductor Corp., 879 F. Supp. 2d\\n\\n167, 183 n.9 (D. Mass. 2012) (rejecting the plaintiffs' core\\n\\noperations theory where the facts offered to prove that the\\n\\ndefendant's actions were fraudulent were \\\"less clear\\\" than the\\n\\n\\\"particularized facts\\\" of Crowell).\\n\\n The plaintiffs' \\\"highly regulated industry\\\" theory\\n\\nsuffers from the same defect. According to the plaintiffs, because\\n\\n\\\"Biogen operates in the heavily regulated pharmaceuticals\\n\\nindustry,\\\" one can infer \\\"that the Individual Defendants were\\n\\nacutely aware of safety-related concerns [related to Tecfidera].\\\"\\n\\nBut, if by \\\"safety concerns\\\" the plaintiffs mean the alleged\\n\\nstatements from Dr. Thrower to Ferguson and Hall regarding Dr.\\n\\nThrower's research on Tecfidera, then we have already explained\\n\\nthe problem with this theory. Even if we were to assume that the\\n\\n\\n - 32 -\\n\\findividual defendants were aware of Dr. Thrower's comments to\\n\\nFerguson and Hall, none of the six \\\"plausibly misleading\\\"\\n\\nstatements so clearly conflicts with Dr. Thrower's assessment of\\n\\nthe drug -- especially given the other safety disclosures the\\n\\ncompany made prior to those statements -- that there exists a\\n\\n\\\"strong inference\\\" that any of those six statements were made with\\n\\nthe intent to deceive.\\n\\n Nor can the plaintiffs succeed in pressing their case on\\n\\nappeal based on their contention that the defendants' repeated\\n\\nspecific statements about the drug show that they knew that their\\n\\npublic disclosures were misleading when made and thus that there\\n\\nis a \\\"strong inference\\\" of scienter not only as to them but also\\n\\nas to Biogen. We may assume that a plausibly misleading statement\\n\\nwas made publicly more than once. But nothing in the complaint\\n\\nalleges facts that indicate that anyone in Biogen's management had\\n\\nknowledge that was sufficiently in conflict with any of the six\\n\\n\\\"plausibly misleading\\\" public statements to permit the conclusion\\n\\nthat the company had the requisite intent to deceive in permitting\\n\\nthose statements to have been made and in not having corrected\\n\\nthem in some respect.\\n\\n\\n IV.\\n\\n For the foregoing reasons we affirm the District Court's\\n\\njudgment granting the motion to dismiss.\\n\\n\\n\\n - 33 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2389,"cells":{"id":{"kind":"number","value":4625561,"string":"4,625,561"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Sokolow v. Palestine Liberation Organization"},"decision_date":{"kind":"string","value":"2019-06-03"},"docket_number":{"kind":"string","value":"15-3135(L)"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: LEVAL AND DRONEY, Circuit Judges, AND KOELTL, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"Judge John G. Koeltl, of the United States District Court for the Southern District of New\", \"type\": \"010combined\", \"text\": \"15-3135(L)\\nSokolow v. Palestine Liberation Organization\\n\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n ____________________________________\\n\\n August Term, 2015\\n\\nCase Argued: April 12, 2016 Case Decided: August 31, 2016\\n Motion Filed: October 8, 2018 Motion Decided: June 3, 2019\\n\\n Docket Nos. 15-3135-cv (Lead); 15-3151-cv (XAP)\\n ____________________________________\\n\\n EVA WALDMAN, REVITAL BAUER, INDIVIDUALLY AND AS NATURAL GUARDIAN OF\\n PLAINTIFFS YEHONATHON BAUER, BINYAMIN BAUER, DANIEL BAUER AND YEHUDA\\n BAUER, SHAUL MANDELKORN, NURIT MANDELKORN, OZ JOSEPH GUETTA, MINOR,\\n BY HIS NEXT FRIEND AND GUARDIAN VARDA GUETTA, VARDA GUETTA,\\n INDIVIDUALLY AND AS NATURAL GUARDIAN OF PLAINTIFF OZ JOSEPH GUETTA,\\n NORMAN GRITZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE\\n OF DAVID GRITZ, MARK I. SOKOLOW, INDIVIDUALLY AND AS A NATURAL GUARDIAN\\n OF PLAINTIFF JAMIE A. SOKOLOW, RENA M. SOKOLOW, INDIVIDUALLY AND AS A\\n NATURAL GUARDIAN OF PLAINTIFF JAIME A. SOKOLOW, JAMIE A. SOKOLOW, MINOR,\\n BY HER NEXT FRIENDS AND GUARDIAN MARK I. SOKOLOW AND RENA M. SOKOLOW,\\n LAUREN M. SOKOLOW, ELANA R. SOKOLOW, SHAYNA EILEEN GOULD, RONALD\\n ALLAN GOULD, ELISE JANET GOULD, JESSICA RINE, SHMUEL WALDMAN, HENNA\\n NOVACK WALDMAN, MORRIS WALDMAN, ALAN J. BAUER, INDIVIDUALLY AND AS\\n NATURAL GUARDIAN OF PLAINTIFFS YEHONATHON BAUER, BINYAMIN BAUER,\\n DANIEL BAUER AND YEHUDA BAUER, YEHONATHON BAUER, MINOR, BY HIS NEXT\\n FRIEND AND GUARDIANS DR. ALAN J. BAUER AND REVITAL BAUER, BINYAMIN\\n BAUER, MINOR, BY HIS NEXT FRIEND AND GUARDIANS DR. ALAN J. BAUER AND\\n REVITAL BAUER, DANIEL BAUER, MINOR, BY HIS NEXT FRIEND AND GUARDIANS DR.\\n ALAN J. BAUER AND REVITAL BAUER, YEHUDA BAUER, MINOR, BY HIS NEXT FRIEND\\n AND GUARDIANS DR. ALAN J. BAUER AND REVITAL BAUER, RABBI LEONARD\\n MANDELKORN, KATHERINE BAKER, INDIVIDUALLY AND AS PERSONAL\\n REPRESENTATIVE OF THE ESTATE OF BENJAMIN BLUTSTEIN, REBEKAH BLUTSTEIN,\\n\\n 1\\n\\f RICHARD BLUTSTEIN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE\\n ESTATE OF BENJAMIN BLUTSTEIN, LARRY CARTER, INDIVIDUALLY AND AS PERSONAL\\n REPRESENTATIVE OF THE ESTATE OF DIANE (“DINA”) CARTER, SHAUN COFFEL,\\n DIANNE COULTER MILLER, ROBERT L COULTER, JR., ROBERT L. COULTER, SR.,\\n INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JANIS RUTH\\nCOULTER, CHANA BRACHA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN\\n KAREN GOLDBERG, ELIEZER SIMCHA GOLDBERG, MINOR, BY HER NEXT FRIEND AND\\n GUARDIAN KAREN GOLDBERG, ESTHER ZAHAVA GOLDBERG, MINOR, BY HER NEXT\\n FRIEND AND GUARDIAN KAREN GOLDBERG, KAREN GOLDBERG, INDIVIDUALLY, AS\\n PERSONAL REPRESENTATIVE OF THE ESTATE OF STUART SCOTT GOLDBERG/NATURAL\\nGUARDIAN OF PLAINTIFFS CHANA BRACHA GOLDBERG, ESTHER ZAHAVA GOLDBERG,\\n YITZHAK SHALOM GOLDBERG, SHOSHANA MALKA GOLDBERG, ELIEZER SIMCHA\\n GOLDBERG, YAAKOV MOSHE GOLDBERG, TZVI YEHOSHUA GOLDBERG, SHOSHANA\\nMALKA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG,\\n TZVI YEHOSHUA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN\\n GOLDBERG, YAAKOV MOSHE GOLDBERG, MINOR, BY HER NEXT FRIEND AND\\n GUARDIAN KAREN GOLDBERG, YITZHAK SHALOM GOLDBERG, MINOR, BY HER NEXT\\nFRIEND AND GUARDIAN KAREN GOLDBERG, NEVENKA GRITZ, SOLE HEIR OF NORMAN\\n GRITZ, DECEASED,\\n\\n Plaintiffs – Appellees - Cross-Appellants,\\n\\n —v.—\\n\\n PALESTINE LIBERATION ORGANIZATION, PALESTINIAN AUTHORITY, AKA\\n PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY AND OR PALESTINIAN\\n COUNCIL AND OR PALESTINIAN NATIONAL AUTHORITY,\\n\\n Defendants - Appellants - Cross-Appellees,\\n\\n YASSER ARAFAT, MARWIN BIN KHATIB BARGHOUTI, AHMED TALEB MUSTAPHA\\n BARGHOUTI, AKA AL-FARANSI, NASSER MAHMOUD AHMED AWEIS, MAJID AL-\\n MASRI, AKA ABU MOJAHED, MAHMOUD AL-TITI, MOHAMMED ABDEL RAHMAN\\nSALAM MASALAH, AKA ABU SATKHAH, FARAS SADAK MOHAMMED GHANEM, AKA\\n HITAWI, MOHAMMED SAMI IBRAHIM ABDULLAH, ESTATE OF SAID RAMADAN,\\n DECEASED, ABDEL KARIM RATAB YUNIS AWEIS, NASSER JAMAL MOUSA SHAWISH,\\n\\n\\n 2\\n\\f TOUFIK TIRAWI, HUSSEIN AL-SHAYKH, SANA'A MUHAMMED SHEHADEH, KAIRA\\n SAID ALI SADI, ESTATE OF MOHAMMED HASHAIKA, DECEASED, MUNZAR MAHMOUD\\n KHALIL NOOR, ESTATE OF WAFA IDRIS, DECEASED, ESTATE OF MAZAN FARITACH,\\n DECEASED, ESTATE OF MUHANAD ABU HALAWA, DECEASED, JOHN DOES, 1-99,\\n HASSAN ABDEL RAHMAN,\\n\\n Defendants.\\n ___________________________________\\n\\n Before: LEVAL AND DRONEY, Circuit Judges, AND KOELTL, District Judge. *\\n\\n1 On October 8, 2018, shortly after Congress enacted the Anti-Terrorism\\n\\n2 Clarification Act (“ATCA”), the plaintiffs-appellees-cross-appellants\\n\\n3 (“plaintiffs”) moved this Court to recall the mandate issued after this Court’s\\n\\n4 decision holding that the federal courts lacked personal jurisdiction over the\\n\\n5 Palestine Liberation Organization and the Palestinian Authority – the\\n\\n6 defendants-appellants-cross-appellees (“defendants”) – with respect to the\\n\\n7 plaintiffs’ claims. The plaintiffs contend that the newly enacted ATCA provides\\n\\n8 federal courts with jurisdiction over the defendants in this case and thus the\\n\\n9 mandate should be recalled. The extraordinary remedy of recalling a mandate is\\n\\n10 not warranted in this case, and the plaintiffs’ motion is accordingly DENIED.\\n\\n11\\n\\n\\n\\n\\n * Judge John G. Koeltl, of the United States District Court for the Southern District of New\\n York, sitting by designation.\\n 3\\n\\f1 ______________\\n\\n2 KENT A. YALOWITZ AND DAVID C. RUSSELL (Baruch Weiss, Dirk C. Phillips, John\\n3 Robinson, Avishai D. Don, on the brief), Arnold & Porter Kaye Scholer LLP, for\\n4 Plaintiffs-Appellees-Cross-Appellants.\\n5\\n6 GASSAN A. BALOUL (Mitchell R. Berger, Alexandra E. Chopin, Aaron W. Knights,\\n7 on the brief), Squire Patton Boggs (US) LLP, for Defendants-Appellants-Cross-\\n8 Appellees.\\n9 ______________\\n\\n10 PER CURIAM:\\n\\n11 In this case, eleven American families sued the defendants, the Palestine\\n\\n12 Liberation Organization (“PLO”) and the Palestinian Authority (“PA”), under\\n\\n13 the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333(a), for various terror attacks in\\n\\n14 Israel that killed or wounded the plaintiffs or their family members. After a\\n\\n15 seven-week trial, the jury awarded the plaintiffs damages which, after trebling,\\n\\n16 amounted to $655.5 million. On appeal, this Court held that the federal courts\\n\\n17 lacked personal jurisdiction over the defendants with respect to the plaintiffs’\\n\\n18 claims. This Court vacated the judgment of the district court and remanded the\\n\\n19 case with instructions to dismiss the action. The mandate issued on November\\n\\n20 28, 2016, and the Supreme Court denied the plaintiffs’ petition for a writ of\\n\\n21 certiorari on April 2, 2018. The plaintiffs have now moved to recall the mandate\\n\\n22 based on the recently enacted Anti-Terrorism Clarification Act (“ATCA”).\\n\\n 4\\n\\f1 The ATCA became law on October 3, 2018. Pub. L. No. 115-253, 132 Stat\\n\\n2 3183 (2018). Section 4 of the ATCA, which added a subsection (e) to 18 U.S.C.\\n\\n3 § 2334, specifies activities by which certain parties shall be deemed to have\\n\\n4 consented to personal jurisdiction. The provision states that “regardless of the\\n\\n5 date of the occurrence of the act of international terrorism upon which [a] civil\\n\\n6 action [brought under 18 U.S.C. § 2333] was filed,” a defendant shall be deemed\\n\\n7 to have consented to personal jurisdiction in such action if the defendant either\\n\\n8 (a) accepts any of three specified forms of assistance after the date that is 120\\n\\n9 days after Section 4 of the ATCA was enacted or (b) is “benefiting from a waiver\\n\\n10 or suspension of section 1003 of the [ATA]” and, after the date that is 120 days\\n\\n11 after Section 4 of the ATCA was enacted, establishes or continues to maintain\\n\\n12 “any office, headquarters, premises, or other facilities or establishments within\\n\\n13 the jurisdiction of the United States.” 1 18 U.S.C. § 2334(e)(1).\\n\\n\\n 1 Section 1003 of the ATA provides that:\\n It shall be unlawful, if the purpose be to further the interests of the Palestine Liberation\\n Organization or any of its constituent groups, any successor to any of those, or any\\n agents thereof . . .\\n (1) to receive anything of value except informational material from the PLO or any\\n of its constituent groups, any successor thereto, or any agents thereof;\\n (2) to expend funds from the PLO or any of its constituent groups, any successor\\n thereto, or any agents thereof; or\\n (3) notwithstanding any provision of law to the contrary, to establish or maintain\\n an office, headquarters, premises, or other facilities or establishments within the\\n 5\\n\\f1 On October 8, 2018, the plaintiffs filed the present motion to recall the\\n\\n2 mandate issued in this case. They argue that Section 4 of the ATCA provides the\\n\\n3 federal courts with jurisdiction over the defendants with respect to the plaintiffs’\\n\\n4 claims. The defendants counter that the plaintiffs have failed to show\\n\\n5 circumstances that warrant the extraordinary remedy of recalling the mandate\\n\\n6 and that, in any event, Section 4 of the ATCA does not apply retroactively to\\n\\n7 closed cases.\\n\\n8 I.\\n\\n9 The federal courts of appeals “possess an inherent power to recall [a]\\n\\n10 mandate, subject to review for abuse of discretion.” Taylor v. United States, 822\\n\\n11 F.3d 84, 90 (2d Cir. 2016) (quotation marks omitted, alteration in original).\\n\\n12 Recalling a mandate is an extraordinary remedy to be used “sparing[ly].”\\n\\n\\n\\n jurisdiction of the United States at the behest or direction of, or with funds\\n provided by the Palestine Liberation Organization or any of its constituent groups,\\n any successor to any of those, or any agents thereof.\\n 22 U.S.C. § 5202. The President of the United States may waive this provision\\n if the President determines and certifies in writing to the Speaker of the House of\\n Representatives, the President pro tempore of the Senate, and the appropriate\\n congressional committees that the Palestinians have not, after the date of\\n enactment of this Act [either (1) taken certain steps at the U.N. or (2) taken certain\\n actions vis-à-vis the International Criminal Court].\\n Klieman v. Palestinian Auth., --- F.3d ----, 2019 WL 2093018, at *12 (D.C. Cir. May 14, 2019)\\n (alteration and emphasis in Klieman) (quoting Consolidated Appropriations Act, 2016, Pub. L.\\n No. 114-113, 129 Stat 2242, 2780 (2015)).\\n 6\\n\\f1 Calderon v. Thompson, 523 U.S. 538, 550 (1998); Taylor, 822 F.3d at 90. Courts are\\n\\n2 reluctant to recall a mandate because of “the need to preserve finality in judicial\\n\\n3 proceedings.” Sargent v. Columbia Forest Prod., Inc., 75 F.3d 86, 89 (2d Cir.\\n\\n4 1996). Although the passage of a new law might warrant recalling a mandate in\\n\\n5 some circumstances, this is not such a case.\\n\\n6 II.\\n\\n7 A.\\n\\n8 The plaintiffs have not shown that either factual predicate of Section 4 of\\n\\n9 the ATCA has been satisfied. As to the first factual predicate, acceptance of a\\n\\n10 qualifying form of United States assistance, the plaintiffs state only that the\\n\\n11 defendants have accepted qualifying assistance in the past; they do not contend\\n\\n12 that the defendants currently do so. Meanwhile, in Klieman v. Palestinian\\n\\n13 Authority, which was decided on May 14, 2019, the Court of Appeals for the\\n\\n14 District of Columbia Circuit accepted the representation the Department of\\n\\n15 Justice made in an amicus curiae brief that neither the PLO nor the PA accept\\n\\n16 United States assistance. --- F.3d ----, 2019 WL 2093018, at *10 (D.C. Cir. May 14,\\n\\n17 2019). The papers the plaintiffs filed in connection with this motion do not\\n\\n\\n\\n\\n 7\\n\\f1 provide any reason to doubt the Department of Justice’s representation or the\\n\\n2 Klieman court’s adoption of that representation.\\n\\n3 The plaintiffs also fail to show that, in accordance with Section 4’s second\\n\\n4 factual predicate, the defendants benefit from a waiver or suspension of Section\\n\\n5 1003 of the ATA and have established or continued to maintain an office or other\\n\\n6 facility “within the jurisdiction of the United States.” Both conditions are\\n\\n7 necessary under Section 4’s second factual predicate. Klieman, 2019 WL 2093018\\n\\n8 at *10.\\n\\n9 As to the first condition, the plaintiffs have not established that the\\n\\n10 defendants benefit from an express waiver or suspension under Section 1003 of\\n\\n11 the ATA. The plaintiffs contend that an express waiver is not required by Section\\n\\n12 4 of the ATCA, and that the President impliedly suspended Section 1003 of the\\n\\n13 ATA with respect to the defendants by permitting the defendants to engage in\\n\\n14 conduct allowed only if Section 1003 were suspended. But the Klieman court\\n\\n15 persuasively rejected a similar argument, reasoning that allowing implied\\n\\n16 waivers to qualify under Section 4 of the ATCA would “neglect the actual\\n\\n17 language of the legal authorization to issue waivers under [ATA] § 1003, . . .\\n\\n18 which creates legal consequences when the President ‘certifies in writing’ that a\\n\\n\\n\\n 8\\n\\f1 waiver is to be issued.” 2019 WL 2093018 at *12. The plaintiffs in this case have\\n\\n2 not put forth anything that could qualify as, or substitute for, an express waiver\\n\\n3 or suspension under Section 1003 of the ATA.\\n\\n4 Moreover, the plaintiffs in this case have not shown that the defendants\\n\\n5 have established or continued to maintain an office or other facility within the\\n\\n6 jurisdiction of the United States. Although the PLO maintains its United Nations\\n\\n7 Observer Mission in New York, the prohibitions of Section 1003 of the ATA do\\n\\n8 not apply to that office. Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione\\n\\n9 Motonave Achille Lauro, 937 F.2d 44, 46 (2d Cir. 1991); see United States v.\\n\\n10 Palestine Liberation Org., 695 F. Supp. 1456, 1465 (S.D.N.Y. 1988) (finding the\\n\\n11 ATA inapplicable to the PLO Observer Mission). The Observer Mission is not\\n\\n12 considered to be within the jurisdiction of the United States. See Klinghoffer, 937\\n\\n13 F.2d at 51 (“[T]he PLO’s participation in the UN is dependent on the legal fiction\\n\\n14 that the UN Headquarters is not really United States territory at all, but is rather\\n\\n15 neutral ground over which the United States has ceded control.”).\\n\\n16 The plaintiffs point out that, according to Klinghoffer, “activities not\\n\\n17 conducted in furtherance of the PLO’s observer status may properly be\\n\\n18 considered as a basis of jurisdiction.” Id. at 51. But this statement was made in\\n\\n\\n\\n 9\\n\\f1 reference to determining whether such activities conferred personal jurisdiction\\n\\n2 over the PLO under § 301 of the New York Civil Practice Laws and Rules.\\n\\n3 Nothing in Klinghoffer suggests that the PLO’s engaging in activities unrelated\\n\\n4 to its observer status transforms the PLO’s Observer Mission into an office or\\n\\n5 other facility for the PLO “within the jurisdiction of the United States.”\\n\\n6 In sum, the plaintiffs have provided no basis to conclude that a factual\\n\\n7 predicate of Section 4 of the ATCA has been met in this case.\\n\\n8 B.\\n\\n9 This Court’s interest in finality also weighs against recalling the mandate.\\n\\n10 When its factual predicates are met, Section 4 provides jurisdiction over a\\n\\n11 defendant “regardless of the date of the occurrence of the act of international\\n\\n12 terrorism upon which [the relevant] civil action was filed,” 18 U.S.C. § 2334(e)(1),\\n\\n13 providing that the defendant subsequently commits certain acts. But irrespective\\n\\n14 of whether this language suggests that Section 4 applies retroactively to pending\\n\\n15 cases, such as the appeal in Klieman, it does not suggest that courts should\\n\\n16 reopen cases that are no longer pending. Legislation applies prospectively unless\\n\\n17 Congress explicitly provides for retroactive application. Vartelas v. Holder, 566\\n\\n18 U.S. 257, 265–66 (2012); see Landgraf v. USI Film Prods., 511 U.S. 244, 272–73\\n\\n\\n\\n 10\\n\\f1 (1994). And it is well-established that retroactive laws generally do not affect\\n\\n2 valid, final judgments. See Bank Markazi v. Peterson, 136 S. Ct. 1310, 1323 (2016)\\n\\n3 (“Congress . . . may not ‘retroactively comman[d] the federal courts to reopen\\n\\n4 final judgments.’” (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219\\n\\n5 (1995) (alteration in original))). The mandate in this case was issued two and a\\n\\n6 half years ago, and the Supreme Court denied the plaintiffs’ petition for a writ of\\n\\n7 certiorari more than six months before the plaintiffs filed their motion to recall\\n\\n8 the mandate. The ATCA does not provide explicitly or implicitly that closed\\n\\n9 cases can be reopened. Recalling the mandate now would offend “the need to\\n\\n10 preserve finality in judicial proceedings.” Taylor, 822 F.3d at 90 (quotation marks\\n\\n11 omitted). 2\\n\\n12 CONCLUSION\\n\\n13 This case does not warrant invoking the extraordinary remedy of recalling\\n\\n14 a mandate issued two and a half years ago. The Court has considered all the\\n\\n15 arguments of the parties. To the extent not specifically addressed, they are either\\n\\n\\n\\n\\n 2 The plaintiffs in this case have filed a new complaint in the Southern District of New York.\\n Sokolow v. Palestine Liberation Organization, No. 18cv12213 (S.D.N.Y.). To the extent that there\\n are any developments in the activities of the PA or the PLO that may subject them to personal\\n jurisdiction under the ATCA, they can be raised in that case.\\n 11\\n\\f1 moot or without merit. For the reasons explained above, the plaintiffs’ motion to\\n\\n2 recall the mandate is DENIED.\\n\\n\\n\\n\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402814/\", \"author_raw\": \"Judge John G. Koeltl, of the United States District Court for the Southern District of New\"}]}"},"judge1":{"kind":"string","value":"LEVAL"},"judge2":{"kind":"string","value":"DRONEY"},"judge3":{"kind":"string","value":"KOELTL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"LEVAL\": \", Circuit\", \"DRONEY\": \", Circuit\", \"KOELTL\": \", District\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4625561/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Sokolow v. Palestine Liberation Organization\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-06-03\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n15-3135(L)\nSokolow v. Palestine Liberation Organization\n\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SECOND CIRCUIT\n ____________________________________\n\n August Term, 2015\n\nCase Argued: April 12, 2016 Case Decided: August 31, 2016\n Motion Filed: October 8, 2018 Motion Decided: June 3, 2019\n\n Docket Nos. 15-3135-cv (Lead); 15-3151-cv (XAP)\n ____________________________________\n\n EVA WALDMAN, REVITAL BAUER, INDIVIDUALLY AND AS NATURAL GUARDIAN OF\n PLAINTIFFS YEHONATHON BAUER, BINYAMIN BAUER, DANIEL BAUER AND YEHUDA\n BAUER, SHAUL MANDELKORN, NURIT MANDELKORN, OZ JOSEPH GUETTA, MINOR,\n BY HIS NEXT FRIEND AND GUARDIAN VARDA GUETTA, VARDA GUETTA,\n INDIVIDUALLY AND AS NATURAL GUARDIAN OF PLAINTIFF OZ JOSEPH GUETTA,\n NORMAN GRITZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE\n OF DAVID GRITZ, MARK I. SOKOLOW, INDIVIDUALLY AND AS A NATURAL GUARDIAN\n OF PLAINTIFF JAMIE A. SOKOLOW, RENA M. SOKOLOW, INDIVIDUALLY AND AS A\n NATURAL GUARDIAN OF PLAINTIFF JAIME A. SOKOLOW, JAMIE A. SOKOLOW, MINOR,\n BY HER NEXT FRIENDS AND GUARDIAN MARK I. SOKOLOW AND RENA M. SOKOLOW,\n LAUREN M. SOKOLOW, ELANA R. SOKOLOW, SHAYNA EILEEN GOULD, RONALD\n ALLAN GOULD, ELISE JANET GOULD, JESSICA RINE, SHMUEL WALDMAN, HENNA\n NOVACK WALDMAN, MORRIS WALDMAN, ALAN J. BAUER, INDIVIDUALLY AND AS\n NATURAL GUARDIAN OF PLAINTIFFS YEHONATHON BAUER, BINYAMIN BAUER,\n DANIEL BAUER AND YEHUDA BAUER, YEHONATHON BAUER, MINOR, BY HIS NEXT\n FRIEND AND GUARDIANS DR. ALAN J. BAUER AND REVITAL BAUER, BINYAMIN\n BAUER, MINOR, BY HIS NEXT FRIEND AND GUARDIANS DR. ALAN J. BAUER AND\n REVITAL BAUER, DANIEL BAUER, MINOR, BY HIS NEXT FRIEND AND GUARDIANS DR.\n ALAN J. BAUER AND REVITAL BAUER, YEHUDA BAUER, MINOR, BY HIS NEXT FRIEND\n AND GUARDIANS DR. ALAN J. BAUER AND REVITAL BAUER, RABBI LEONARD\n MANDELKORN, KATHERINE BAKER, INDIVIDUALLY AND AS PERSONAL\n REPRESENTATIVE OF THE ESTATE OF BENJAMIN BLUTSTEIN, REBEKAH BLUTSTEIN,\n\n 1\n\f RICHARD BLUTSTEIN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE\n ESTATE OF BENJAMIN BLUTSTEIN, LARRY CARTER, INDIVIDUALLY AND AS PERSONAL\n REPRESENTATIVE OF THE ESTATE OF DIANE (“DINA”) CARTER, SHAUN COFFEL,\n DIANNE COULTER MILLER, ROBERT L COULTER, JR., ROBERT L. COULTER, SR.,\n INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JANIS RUTH\nCOULTER, CHANA BRACHA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN\n KAREN GOLDBERG, ELIEZER SIMCHA GOLDBERG, MINOR, BY HER NEXT FRIEND AND\n GUARDIAN KAREN GOLDBERG, ESTHER ZAHAVA GOLDBERG, MINOR, BY HER NEXT\n FRIEND AND GUARDIAN KAREN GOLDBERG, KAREN GOLDBERG, INDIVIDUALLY, AS\n PERSONAL REPRESENTATIVE OF THE ESTATE OF STUART SCOTT GOLDBERG/NATURAL\nGUARDIAN OF PLAINTIFFS CHANA BRACHA GOLDBERG, ESTHER ZAHAVA GOLDBERG,\n YITZHAK SHALOM GOLDBERG, SHOSHANA MALKA GOLDBERG, ELIEZER SIMCHA\n GOLDBERG, YAAKOV MOSHE GOLDBERG, TZVI YEHOSHUA GOLDBERG, SHOSHANA\nMALKA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG,\n TZVI YEHOSHUA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN\n GOLDBERG, YAAKOV MOSHE GOLDBERG, MINOR, BY HER NEXT FRIEND AND\n GUARDIAN KAREN GOLDBERG, YITZHAK SHALOM GOLDBERG, MINOR, BY HER NEXT\nFRIEND AND GUARDIAN KAREN GOLDBERG, NEVENKA GRITZ, SOLE HEIR OF NORMAN\n GRITZ, DECEASED,\n\n Plaintiffs – Appellees - Cross-Appellants,\n\n —v.—\n\n PALESTINE LIBERATION ORGANIZATION, PALESTINIAN AUTHORITY, AKA\n PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY AND OR PALESTINIAN\n COUNCIL AND OR PALESTINIAN NATIONAL AUTHORITY,\n\n Defendants - Appellants - Cross-Appellees,\n\n YASSER ARAFAT, MARWIN BIN KHATIB BARGHOUTI, AHMED TALEB MUSTAPHA\n BARGHOUTI, AKA AL-FARANSI, NASSER MAHMOUD AHMED AWEIS, MAJID AL-\n MASRI, AKA ABU MOJAHED, MAHMOUD AL-TITI, MOHAMMED ABDEL RAHMAN\nSALAM MASALAH, AKA ABU SATKHAH, FARAS SADAK MOHAMMED GHANEM, AKA\n HITAWI, MOHAMMED SAMI IBRAHIM ABDULLAH, ESTATE OF SAID RAMADAN,\n DECEASED, ABDEL KARIM RATAB YUNIS AWEIS, NASSER JAMAL MOUSA SHAWISH,\n\n\n 2\n\f TOUFIK TIRAWI, HUSSEIN AL-SHAYKH, SANA'A MUHAMMED SHEHADEH, KAIRA\n SAID ALI SADI, ESTATE OF MOHAMMED HASHAIKA, DECEASED, MUNZAR MAHMOUD\n KHALIL NOOR, ESTATE OF WAFA IDRIS, DECEASED, ESTATE OF MAZAN FARITACH,\n DECEASED, ESTATE OF MUHANAD ABU HALAWA, DECEASED, JOHN DOES, 1-99,\n HASSAN ABDEL RAHMAN,\n\n Defendants.\n ___________________________________\n\n Before: LEVAL AND DRONEY, Circuit Judges, AND KOELTL, District Judge. *\n\n1 On October 8, 2018, shortly after Congress enacted the Anti-Terrorism\n\n2 Clarification Act (“ATCA”), the plaintiffs-appellees-cross-appellants\n\n3 (“plaintiffs”) moved this Court to recall the mandate issued after this Court’s\n\n4 decision holding that the federal courts lacked personal jurisdiction over the\n\n5 Palestine Liberation Organization and the Palestinian Authority – the\n\n6 defendants-appellants-cross-appellees (“defendants”) – with respect to the\n\n7 plaintiffs’ claims. The plaintiffs contend that the newly enacted ATCA provides\n\n8 federal courts with jurisdiction over the defendants in this case and thus the\n\n9 mandate should be recalled. The extraordinary remedy of recalling a mandate is\n\n10 not warranted in this case, and the plaintiffs’ motion is accordingly DENIED.\n\n11\n\n\n\n\n * Judge John G. Koeltl, of the United States District Court for the Southern District of New\n York, sitting by designation.\n 3\n\f1 ______________\n\n2 KENT A. YALOWITZ AND DAVID C. RUSSELL (Baruch Weiss, Dirk C. Phillips, John\n3 Robinson, Avishai D. Don, on the brief), Arnold & Porter Kaye Scholer LLP, for\n4 Plaintiffs-Appellees-Cross-Appellants.\n5\n6 GASSAN A. BALOUL (Mitchell R. Berger, Alexandra E. Chopin, Aaron W. Knights,\n7 on the brief), Squire Patton Boggs (US) LLP, for Defendants-Appellants-Cross-\n8 Appellees.\n9 ______________\n\n10 PER CURIAM:\n\n11 In this case, eleven American families sued the defendants, the Palestine\n\n12 Liberation Organization (“PLO”) and the Palestinian Authority (“PA”), under\n\n13 the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333(a), for various terror attacks in\n\n14 Israel that killed or wounded the plaintiffs or their family members. After a\n\n15 seven-week trial, the jury awarded the plaintiffs damages which, after trebling,\n\n16 amounted to $655.5 million. On appeal, this Court held that the federal courts\n\n17 lacked personal jurisdiction over the defendants with respect to the plaintiffs’\n\n18 claims. This Court vacated the judgment of the district court and remanded the\n\n19 case with instructions to dismiss the action. The mandate issued on November\n\n20 28, 2016, and the Supreme Court denied the plaintiffs’ petition for a writ of\n\n21 certiorari on April 2, 2018. The plaintiffs have now moved to recall the mandate\n\n22 based on the recently enacted Anti-Terrorism Clarification Act (“ATCA”).\n\n 4\n\f1 The ATCA became law on October 3, 2018. Pub. L. No. 115-253, 132 Stat\n\n2 3183 (2018). Section 4 of the ATCA, which added a subsection (e) to 18 U.S.C.\n\n3 § 2334, specifies activities by which certain parties shall be deemed to have\n\n4 consented to personal jurisdiction. The provision states that “regardless of the\n\n5 date of the occurrence of the act of international terrorism upon which [a] civil\n\n6 action [brought under 18 U.S.C. § 2333] was filed,” a defendant shall be deemed\n\n7 to have consented to personal jurisdiction in such action if the defendant either\n\n8 (a) accepts any of three specified forms of assistance after the date that is 120\n\n9 days after Section 4 of the ATCA was enacted or (b) is “benefiting from a waiver\n\n10 or suspension of section 1003 of the [ATA]” and, after the date that is 120 days\n\n11 after Section 4 of the ATCA was enacted, establishes or continues to maintain\n\n12 “any office, headquarters, premises, or other facilities or establishments within\n\n13 the jurisdiction of the United States.” 1 18 U.S.C. § 2334(e)(1).\n\n\n 1 Section 1003 of the ATA provides that:\n It shall be unlawful, if the purpose be to further the interests of the Palestine Liberation\n Organization or any of its constituent groups, any successor to any of those, or any\n agents thereof . . .\n (1) to receive anything of value except informational material from the PLO or any\n of its constituent groups, any successor thereto, or any agents thereof;\n (2) to expend funds from the PLO or any of its constituent groups, any successor\n thereto, or any agents thereof; or\n (3) notwithstanding any provision of law to the contrary, to establish or maintain\n an office, headquarters, premises, or other facilities or establishments within the\n 5\n\f1 On October 8, 2018, the plaintiffs filed the present motion to recall the\n\n2 mandate issued in this case. They argue that Section 4 of the ATCA provides the\n\n3 federal courts with jurisdiction over the defendants with respect to the plaintiffs’\n\n4 claims. The defendants counter that the plaintiffs have failed to show\n\n5 circumstances that warrant the extraordinary remedy of recalling the mandate\n\n6 and that, in any event, Section 4 of the ATCA does not apply retroactively to\n\n7 closed cases.\n\n8 I.\n\n9 The federal courts of appeals “possess an inherent power to recall [a]\n\n10 mandate, subject to review for abuse of discretion.” Taylor v. United States, 822\n\n11 F.3d 84, 90 (2d Cir. 2016) (quotation marks omitted, alteration in original).\n\n12 Recalling a mandate is an extraordinary remedy to be used “sparing[ly].”\n\n\n\n jurisdiction of the United States at the behest or direction of, or with funds\n provided by the Palestine Liberation Organization or any of its constituent groups,\n any successor to any of those, or any agents thereof.\n 22 U.S.C. § 5202. The President of the United States may waive this provision\n if the President determines and certifies in writing to the Speaker of the House of\n Representatives, the President pro tempore of the Senate, and the appropriate\n congressional committees that the Palestinians have not, after the date of\n enactment of this Act [either (1) taken certain steps at the U.N. or (2) taken certain\n actions vis-à-vis the International Criminal Court].\n Klieman v. Palestinian Auth., --- F.3d ----, 2019 WL 2093018, at *12 (D.C. Cir. May 14, 2019)\n (alteration and emphasis in Klieman) (quoting Consolidated Appropriations Act, 2016, Pub. L.\n No. 114-113, 129 Stat 2242, 2780 (2015)).\n 6\n\f1 Calderon v. Thompson, 523 U.S. 538, 550 (1998); Taylor, 822 F.3d at 90. Courts are\n\n2 reluctant to recall a mandate because of “the need to preserve finality in judicial\n\n3 proceedings.” Sargent v. Columbia Forest Prod., Inc., 75 F.3d 86, 89 (2d Cir.\n\n4 1996). Although the passage of a new law might warrant recalling a mandate in\n\n5 some circumstances, this is not such a case.\n\n6 II.\n\n7 A.\n\n8 The plaintiffs have not shown that either factual predicate of Section 4 of\n\n9 the ATCA has been satisfied. As to the first factual predicate, acceptance of a\n\n10 qualifying form of United States assistance, the plaintiffs state only that the\n\n11 defendants have accepted qualifying assistance in the past; they do not contend\n\n12 that the defendants currently do so. Meanwhile, in Klieman v. Palestinian\n\n13 Authority, which was decided on May 14, 2019, the Court of Appeals for the\n\n14 District of Columbia Circuit accepted the representation the Department of\n\n15 Justice made in an amicus curiae brief that neither the PLO nor the PA accept\n\n16 United States assistance. --- F.3d ----, 2019 WL 2093018, at *10 (D.C. Cir. May 14,\n\n17 2019). The papers the plaintiffs filed in connection with this motion do not\n\n\n\n\n 7\n\f1 provide any reason to doubt the Department of Justice’s representation or the\n\n2 Klieman court’s adoption of that representation.\n\n3 The plaintiffs also fail to show that, in accordance with Section 4’s second\n\n4 factual predicate, the defendants benefit from a waiver or suspension of Section\n\n5 1003 of the ATA and have established or continued to maintain an office or other\n\n6 facility “within the jurisdiction of the United States.” Both conditions are\n\n7 necessary under Section 4’s second factual predicate. Klieman, 2019 WL 2093018\n\n8 at *10.\n\n9 As to the first condition, the plaintiffs have not established that the\n\n10 defendants benefit from an express waiver or suspension under Section 1003 of\n\n11 the ATA. The plaintiffs contend that an express waiver is not required by Section\n\n12 4 of the ATCA, and that the President impliedly suspended Section 1003 of the\n\n13 ATA with respect to the defendants by permitting the defendants to engage in\n\n14 conduct allowed only if Section 1003 were suspended. But the Klieman court\n\n15 persuasively rejected a similar argument, reasoning that allowing implied\n\n16 waivers to qualify under Section 4 of the ATCA would “neglect the actual\n\n17 language of the legal authorization to issue waivers under [ATA] § 1003, . . .\n\n18 which creates legal consequences when the President ‘certifies in writing’ that a\n\n\n\n 8\n\f1 waiver is to be issued.” 2019 WL 2093018 at *12. The plaintiffs in this case have\n\n2 not put forth anything that could qualify as, or substitute for, an express waiver\n\n3 or suspension under Section 1003 of the ATA.\n\n4 Moreover, the plaintiffs in this case have not shown that the defendants\n\n5 have established or continued to maintain an office or other facility within the\n\n6 jurisdiction of the United States. Although the PLO maintains its United Nations\n\n7 Observer Mission in New York, the prohibitions of Section 1003 of the ATA do\n\n8 not apply to that office. Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione\n\n9 Motonave Achille Lauro, 937 F.2d 44, 46 (2d Cir. 1991); see United States v.\n\n10 Palestine Liberation Org., 695 F. Supp. 1456, 1465 (S.D.N.Y. 1988) (finding the\n\n11 ATA inapplicable to the PLO Observer Mission). The Observer Mission is not\n\n12 considered to be within the jurisdiction of the United States. See Klinghoffer, 937\n\n13 F.2d at 51 (“[T]he PLO’s participation in the UN is dependent on the legal fiction\n\n14 that the UN Headquarters is not really United States territory at all, but is rather\n\n15 neutral ground over which the United States has ceded control.”).\n\n16 The plaintiffs point out that, according to Klinghoffer, “activities not\n\n17 conducted in furtherance of the PLO’s observer status may properly be\n\n18 considered as a basis of jurisdiction.” Id. at 51. But this statement was made in\n\n\n\n 9\n\f1 reference to determining whether such activities conferred personal jurisdiction\n\n2 over the PLO under § 301 of the New York Civil Practice Laws and Rules.\n\n3 Nothing in Klinghoffer suggests that the PLO’s engaging in activities unrelated\n\n4 to its observer status transforms the PLO’s Observer Mission into an office or\n\n5 other facility for the PLO “within the jurisdiction of the United States.”\n\n6 In sum, the plaintiffs have provided no basis to conclude that a factual\n\n7 predicate of Section 4 of the ATCA has been met in this case.\n\n8 B.\n\n9 This Court’s interest in finality also weighs against recalling the mandate.\n\n10 When its factual predicates are met, Section 4 provides jurisdiction over a\n\n11 defendant “regardless of the date of the occurrence of the act of international\n\n12 terrorism upon which [the relevant] civil action was filed,” 18 U.S.C. § 2334(e)(1),\n\n13 providing that the defendant subsequently commits certain acts. But irrespective\n\n14 of whether this language suggests that Section 4 applies retroactively to pending\n\n15 cases, such as the appeal in Klieman, it does not suggest that courts should\n\n16 reopen cases that are no longer pending. Legislation applies prospectively unless\n\n17 Congress explicitly provides for retroactive application. Vartelas v. Holder, 566\n\n18 U.S. 257, 265–66 (2012); see Landgraf v. USI Film Prods., 511 U.S. 244, 272–73\n\n\n\n 10\n\f1 (1994). And it is well-established that retroactive laws generally do not affect\n\n2 valid, final judgments. See Bank Markazi v. Peterson, 136 S. Ct. 1310, 1323 (2016)\n\n3 (“Congress . . . may not ‘retroactively comman[d] the federal courts to reopen\n\n4 final judgments.’” (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219\n\n5 (1995) (alteration in original))). The mandate in this case was issued two and a\n\n6 half years ago, and the Supreme Court denied the plaintiffs’ petition for a writ of\n\n7 certiorari more than six months before the plaintiffs filed their motion to recall\n\n8 the mandate. The ATCA does not provide explicitly or implicitly that closed\n\n9 cases can be reopened. Recalling the mandate now would offend “the need to\n\n10 preserve finality in judicial proceedings.” Taylor, 822 F.3d at 90 (quotation marks\n\n11 omitted). 2\n\n12 CONCLUSION\n\n13 This case does not warrant invoking the extraordinary remedy of recalling\n\n14 a mandate issued two and a half years ago. The Court has considered all the\n\n15 arguments of the parties. To the extent not specifically addressed, they are either\n\n\n\n\n 2 The plaintiffs in this case have filed a new complaint in the Southern District of New York.\n Sokolow v. Palestine Liberation Organization, No. 18cv12213 (S.D.N.Y.). To the extent that there\n are any developments in the activities of the PA or the PLO that may subject them to personal\n jurisdiction under the ATCA, they can be raised in that case.\n 11\n\f1 moot or without merit. For the reasons explained above, the plaintiffs’ motion to\n\n2 recall the mandate is DENIED.\n\n\n\n\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Sokolow v. Palestine Liberation Organization\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-06-03\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n15-3135(L)\\nSokolow v. Palestine Liberation Organization\\n\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n ____________________________________\\n\\n August Term, 2015\\n\\nCase Argued: April 12, 2016 Case Decided: August 31, 2016\\n Motion Filed: October 8, 2018 Motion Decided: June 3, 2019\\n\\n Docket Nos. 15-3135-cv (Lead); 15-3151-cv (XAP)\\n ____________________________________\\n\\n EVA WALDMAN, REVITAL BAUER, INDIVIDUALLY AND AS NATURAL GUARDIAN OF\\n PLAINTIFFS YEHONATHON BAUER, BINYAMIN BAUER, DANIEL BAUER AND YEHUDA\\n BAUER, SHAUL MANDELKORN, NURIT MANDELKORN, OZ JOSEPH GUETTA, MINOR,\\n BY HIS NEXT FRIEND AND GUARDIAN VARDA GUETTA, VARDA GUETTA,\\n INDIVIDUALLY AND AS NATURAL GUARDIAN OF PLAINTIFF OZ JOSEPH GUETTA,\\n NORMAN GRITZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE\\n OF DAVID GRITZ, MARK I. SOKOLOW, INDIVIDUALLY AND AS A NATURAL GUARDIAN\\n OF PLAINTIFF JAMIE A. SOKOLOW, RENA M. SOKOLOW, INDIVIDUALLY AND AS A\\n NATURAL GUARDIAN OF PLAINTIFF JAIME A. SOKOLOW, JAMIE A. SOKOLOW, MINOR,\\n BY HER NEXT FRIENDS AND GUARDIAN MARK I. SOKOLOW AND RENA M. SOKOLOW,\\n LAUREN M. SOKOLOW, ELANA R. SOKOLOW, SHAYNA EILEEN GOULD, RONALD\\n ALLAN GOULD, ELISE JANET GOULD, JESSICA RINE, SHMUEL WALDMAN, HENNA\\n NOVACK WALDMAN, MORRIS WALDMAN, ALAN J. BAUER, INDIVIDUALLY AND AS\\n NATURAL GUARDIAN OF PLAINTIFFS YEHONATHON BAUER, BINYAMIN BAUER,\\n DANIEL BAUER AND YEHUDA BAUER, YEHONATHON BAUER, MINOR, BY HIS NEXT\\n FRIEND AND GUARDIANS DR. ALAN J. BAUER AND REVITAL BAUER, BINYAMIN\\n BAUER, MINOR, BY HIS NEXT FRIEND AND GUARDIANS DR. ALAN J. BAUER AND\\n REVITAL BAUER, DANIEL BAUER, MINOR, BY HIS NEXT FRIEND AND GUARDIANS DR.\\n ALAN J. BAUER AND REVITAL BAUER, YEHUDA BAUER, MINOR, BY HIS NEXT FRIEND\\n AND GUARDIANS DR. ALAN J. BAUER AND REVITAL BAUER, RABBI LEONARD\\n MANDELKORN, KATHERINE BAKER, INDIVIDUALLY AND AS PERSONAL\\n REPRESENTATIVE OF THE ESTATE OF BENJAMIN BLUTSTEIN, REBEKAH BLUTSTEIN,\\n\\n 1\\n\\f RICHARD BLUTSTEIN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE\\n ESTATE OF BENJAMIN BLUTSTEIN, LARRY CARTER, INDIVIDUALLY AND AS PERSONAL\\n REPRESENTATIVE OF THE ESTATE OF DIANE (“DINA”) CARTER, SHAUN COFFEL,\\n DIANNE COULTER MILLER, ROBERT L COULTER, JR., ROBERT L. COULTER, SR.,\\n INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JANIS RUTH\\nCOULTER, CHANA BRACHA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN\\n KAREN GOLDBERG, ELIEZER SIMCHA GOLDBERG, MINOR, BY HER NEXT FRIEND AND\\n GUARDIAN KAREN GOLDBERG, ESTHER ZAHAVA GOLDBERG, MINOR, BY HER NEXT\\n FRIEND AND GUARDIAN KAREN GOLDBERG, KAREN GOLDBERG, INDIVIDUALLY, AS\\n PERSONAL REPRESENTATIVE OF THE ESTATE OF STUART SCOTT GOLDBERG/NATURAL\\nGUARDIAN OF PLAINTIFFS CHANA BRACHA GOLDBERG, ESTHER ZAHAVA GOLDBERG,\\n YITZHAK SHALOM GOLDBERG, SHOSHANA MALKA GOLDBERG, ELIEZER SIMCHA\\n GOLDBERG, YAAKOV MOSHE GOLDBERG, TZVI YEHOSHUA GOLDBERG, SHOSHANA\\nMALKA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG,\\n TZVI YEHOSHUA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN\\n GOLDBERG, YAAKOV MOSHE GOLDBERG, MINOR, BY HER NEXT FRIEND AND\\n GUARDIAN KAREN GOLDBERG, YITZHAK SHALOM GOLDBERG, MINOR, BY HER NEXT\\nFRIEND AND GUARDIAN KAREN GOLDBERG, NEVENKA GRITZ, SOLE HEIR OF NORMAN\\n GRITZ, DECEASED,\\n\\n Plaintiffs – Appellees - Cross-Appellants,\\n\\n —v.—\\n\\n PALESTINE LIBERATION ORGANIZATION, PALESTINIAN AUTHORITY, AKA\\n PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY AND OR PALESTINIAN\\n COUNCIL AND OR PALESTINIAN NATIONAL AUTHORITY,\\n\\n Defendants - Appellants - Cross-Appellees,\\n\\n YASSER ARAFAT, MARWIN BIN KHATIB BARGHOUTI, AHMED TALEB MUSTAPHA\\n BARGHOUTI, AKA AL-FARANSI, NASSER MAHMOUD AHMED AWEIS, MAJID AL-\\n MASRI, AKA ABU MOJAHED, MAHMOUD AL-TITI, MOHAMMED ABDEL RAHMAN\\nSALAM MASALAH, AKA ABU SATKHAH, FARAS SADAK MOHAMMED GHANEM, AKA\\n HITAWI, MOHAMMED SAMI IBRAHIM ABDULLAH, ESTATE OF SAID RAMADAN,\\n DECEASED, ABDEL KARIM RATAB YUNIS AWEIS, NASSER JAMAL MOUSA SHAWISH,\\n\\n\\n 2\\n\\f TOUFIK TIRAWI, HUSSEIN AL-SHAYKH, SANA'A MUHAMMED SHEHADEH, KAIRA\\n SAID ALI SADI, ESTATE OF MOHAMMED HASHAIKA, DECEASED, MUNZAR MAHMOUD\\n KHALIL NOOR, ESTATE OF WAFA IDRIS, DECEASED, ESTATE OF MAZAN FARITACH,\\n DECEASED, ESTATE OF MUHANAD ABU HALAWA, DECEASED, JOHN DOES, 1-99,\\n HASSAN ABDEL RAHMAN,\\n\\n Defendants.\\n ___________________________________\\n\\n Before: LEVAL AND DRONEY, Circuit Judges, AND KOELTL, District Judge. *\\n\\n1 On October 8, 2018, shortly after Congress enacted the Anti-Terrorism\\n\\n2 Clarification Act (“ATCA”), the plaintiffs-appellees-cross-appellants\\n\\n3 (“plaintiffs”) moved this Court to recall the mandate issued after this Court’s\\n\\n4 decision holding that the federal courts lacked personal jurisdiction over the\\n\\n5 Palestine Liberation Organization and the Palestinian Authority – the\\n\\n6 defendants-appellants-cross-appellees (“defendants”) – with respect to the\\n\\n7 plaintiffs’ claims. The plaintiffs contend that the newly enacted ATCA provides\\n\\n8 federal courts with jurisdiction over the defendants in this case and thus the\\n\\n9 mandate should be recalled. The extraordinary remedy of recalling a mandate is\\n\\n10 not warranted in this case, and the plaintiffs’ motion is accordingly DENIED.\\n\\n11\\n\\n\\n\\n\\n * Judge John G. Koeltl, of the United States District Court for the Southern District of New\\n York, sitting by designation.\\n 3\\n\\f1 ______________\\n\\n2 KENT A. YALOWITZ AND DAVID C. RUSSELL (Baruch Weiss, Dirk C. Phillips, John\\n3 Robinson, Avishai D. Don, on the brief), Arnold & Porter Kaye Scholer LLP, for\\n4 Plaintiffs-Appellees-Cross-Appellants.\\n5\\n6 GASSAN A. BALOUL (Mitchell R. Berger, Alexandra E. Chopin, Aaron W. Knights,\\n7 on the brief), Squire Patton Boggs (US) LLP, for Defendants-Appellants-Cross-\\n8 Appellees.\\n9 ______________\\n\\n10 PER CURIAM:\\n\\n11 In this case, eleven American families sued the defendants, the Palestine\\n\\n12 Liberation Organization (“PLO”) and the Palestinian Authority (“PA”), under\\n\\n13 the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333(a), for various terror attacks in\\n\\n14 Israel that killed or wounded the plaintiffs or their family members. After a\\n\\n15 seven-week trial, the jury awarded the plaintiffs damages which, after trebling,\\n\\n16 amounted to $655.5 million. On appeal, this Court held that the federal courts\\n\\n17 lacked personal jurisdiction over the defendants with respect to the plaintiffs’\\n\\n18 claims. This Court vacated the judgment of the district court and remanded the\\n\\n19 case with instructions to dismiss the action. The mandate issued on November\\n\\n20 28, 2016, and the Supreme Court denied the plaintiffs’ petition for a writ of\\n\\n21 certiorari on April 2, 2018. The plaintiffs have now moved to recall the mandate\\n\\n22 based on the recently enacted Anti-Terrorism Clarification Act (“ATCA”).\\n\\n 4\\n\\f1 The ATCA became law on October 3, 2018. Pub. L. No. 115-253, 132 Stat\\n\\n2 3183 (2018). Section 4 of the ATCA, which added a subsection (e) to 18 U.S.C.\\n\\n3 § 2334, specifies activities by which certain parties shall be deemed to have\\n\\n4 consented to personal jurisdiction. The provision states that “regardless of the\\n\\n5 date of the occurrence of the act of international terrorism upon which [a] civil\\n\\n6 action [brought under 18 U.S.C. § 2333] was filed,” a defendant shall be deemed\\n\\n7 to have consented to personal jurisdiction in such action if the defendant either\\n\\n8 (a) accepts any of three specified forms of assistance after the date that is 120\\n\\n9 days after Section 4 of the ATCA was enacted or (b) is “benefiting from a waiver\\n\\n10 or suspension of section 1003 of the [ATA]” and, after the date that is 120 days\\n\\n11 after Section 4 of the ATCA was enacted, establishes or continues to maintain\\n\\n12 “any office, headquarters, premises, or other facilities or establishments within\\n\\n13 the jurisdiction of the United States.” 1 18 U.S.C. § 2334(e)(1).\\n\\n\\n 1 Section 1003 of the ATA provides that:\\n It shall be unlawful, if the purpose be to further the interests of the Palestine Liberation\\n Organization or any of its constituent groups, any successor to any of those, or any\\n agents thereof . . .\\n (1) to receive anything of value except informational material from the PLO or any\\n of its constituent groups, any successor thereto, or any agents thereof;\\n (2) to expend funds from the PLO or any of its constituent groups, any successor\\n thereto, or any agents thereof; or\\n (3) notwithstanding any provision of law to the contrary, to establish or maintain\\n an office, headquarters, premises, or other facilities or establishments within the\\n 5\\n\\f1 On October 8, 2018, the plaintiffs filed the present motion to recall the\\n\\n2 mandate issued in this case. They argue that Section 4 of the ATCA provides the\\n\\n3 federal courts with jurisdiction over the defendants with respect to the plaintiffs’\\n\\n4 claims. The defendants counter that the plaintiffs have failed to show\\n\\n5 circumstances that warrant the extraordinary remedy of recalling the mandate\\n\\n6 and that, in any event, Section 4 of the ATCA does not apply retroactively to\\n\\n7 closed cases.\\n\\n8 I.\\n\\n9 The federal courts of appeals “possess an inherent power to recall [a]\\n\\n10 mandate, subject to review for abuse of discretion.” Taylor v. United States, 822\\n\\n11 F.3d 84, 90 (2d Cir. 2016) (quotation marks omitted, alteration in original).\\n\\n12 Recalling a mandate is an extraordinary remedy to be used “sparing[ly].”\\n\\n\\n\\n jurisdiction of the United States at the behest or direction of, or with funds\\n provided by the Palestine Liberation Organization or any of its constituent groups,\\n any successor to any of those, or any agents thereof.\\n 22 U.S.C. § 5202. The President of the United States may waive this provision\\n if the President determines and certifies in writing to the Speaker of the House of\\n Representatives, the President pro tempore of the Senate, and the appropriate\\n congressional committees that the Palestinians have not, after the date of\\n enactment of this Act [either (1) taken certain steps at the U.N. or (2) taken certain\\n actions vis-à-vis the International Criminal Court].\\n Klieman v. Palestinian Auth., --- F.3d ----, 2019 WL 2093018, at *12 (D.C. Cir. May 14, 2019)\\n (alteration and emphasis in Klieman) (quoting Consolidated Appropriations Act, 2016, Pub. L.\\n No. 114-113, 129 Stat 2242, 2780 (2015)).\\n 6\\n\\f1 Calderon v. Thompson, 523 U.S. 538, 550 (1998); Taylor, 822 F.3d at 90. Courts are\\n\\n2 reluctant to recall a mandate because of “the need to preserve finality in judicial\\n\\n3 proceedings.” Sargent v. Columbia Forest Prod., Inc., 75 F.3d 86, 89 (2d Cir.\\n\\n4 1996). Although the passage of a new law might warrant recalling a mandate in\\n\\n5 some circumstances, this is not such a case.\\n\\n6 II.\\n\\n7 A.\\n\\n8 The plaintiffs have not shown that either factual predicate of Section 4 of\\n\\n9 the ATCA has been satisfied. As to the first factual predicate, acceptance of a\\n\\n10 qualifying form of United States assistance, the plaintiffs state only that the\\n\\n11 defendants have accepted qualifying assistance in the past; they do not contend\\n\\n12 that the defendants currently do so. Meanwhile, in Klieman v. Palestinian\\n\\n13 Authority, which was decided on May 14, 2019, the Court of Appeals for the\\n\\n14 District of Columbia Circuit accepted the representation the Department of\\n\\n15 Justice made in an amicus curiae brief that neither the PLO nor the PA accept\\n\\n16 United States assistance. --- F.3d ----, 2019 WL 2093018, at *10 (D.C. Cir. May 14,\\n\\n17 2019). The papers the plaintiffs filed in connection with this motion do not\\n\\n\\n\\n\\n 7\\n\\f1 provide any reason to doubt the Department of Justice’s representation or the\\n\\n2 Klieman court’s adoption of that representation.\\n\\n3 The plaintiffs also fail to show that, in accordance with Section 4’s second\\n\\n4 factual predicate, the defendants benefit from a waiver or suspension of Section\\n\\n5 1003 of the ATA and have established or continued to maintain an office or other\\n\\n6 facility “within the jurisdiction of the United States.” Both conditions are\\n\\n7 necessary under Section 4’s second factual predicate. Klieman, 2019 WL 2093018\\n\\n8 at *10.\\n\\n9 As to the first condition, the plaintiffs have not established that the\\n\\n10 defendants benefit from an express waiver or suspension under Section 1003 of\\n\\n11 the ATA. The plaintiffs contend that an express waiver is not required by Section\\n\\n12 4 of the ATCA, and that the President impliedly suspended Section 1003 of the\\n\\n13 ATA with respect to the defendants by permitting the defendants to engage in\\n\\n14 conduct allowed only if Section 1003 were suspended. But the Klieman court\\n\\n15 persuasively rejected a similar argument, reasoning that allowing implied\\n\\n16 waivers to qualify under Section 4 of the ATCA would “neglect the actual\\n\\n17 language of the legal authorization to issue waivers under [ATA] § 1003, . . .\\n\\n18 which creates legal consequences when the President ‘certifies in writing’ that a\\n\\n\\n\\n 8\\n\\f1 waiver is to be issued.” 2019 WL 2093018 at *12. The plaintiffs in this case have\\n\\n2 not put forth anything that could qualify as, or substitute for, an express waiver\\n\\n3 or suspension under Section 1003 of the ATA.\\n\\n4 Moreover, the plaintiffs in this case have not shown that the defendants\\n\\n5 have established or continued to maintain an office or other facility within the\\n\\n6 jurisdiction of the United States. Although the PLO maintains its United Nations\\n\\n7 Observer Mission in New York, the prohibitions of Section 1003 of the ATA do\\n\\n8 not apply to that office. Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione\\n\\n9 Motonave Achille Lauro, 937 F.2d 44, 46 (2d Cir. 1991); see United States v.\\n\\n10 Palestine Liberation Org., 695 F. Supp. 1456, 1465 (S.D.N.Y. 1988) (finding the\\n\\n11 ATA inapplicable to the PLO Observer Mission). The Observer Mission is not\\n\\n12 considered to be within the jurisdiction of the United States. See Klinghoffer, 937\\n\\n13 F.2d at 51 (“[T]he PLO’s participation in the UN is dependent on the legal fiction\\n\\n14 that the UN Headquarters is not really United States territory at all, but is rather\\n\\n15 neutral ground over which the United States has ceded control.”).\\n\\n16 The plaintiffs point out that, according to Klinghoffer, “activities not\\n\\n17 conducted in furtherance of the PLO’s observer status may properly be\\n\\n18 considered as a basis of jurisdiction.” Id. at 51. But this statement was made in\\n\\n\\n\\n 9\\n\\f1 reference to determining whether such activities conferred personal jurisdiction\\n\\n2 over the PLO under § 301 of the New York Civil Practice Laws and Rules.\\n\\n3 Nothing in Klinghoffer suggests that the PLO’s engaging in activities unrelated\\n\\n4 to its observer status transforms the PLO’s Observer Mission into an office or\\n\\n5 other facility for the PLO “within the jurisdiction of the United States.”\\n\\n6 In sum, the plaintiffs have provided no basis to conclude that a factual\\n\\n7 predicate of Section 4 of the ATCA has been met in this case.\\n\\n8 B.\\n\\n9 This Court’s interest in finality also weighs against recalling the mandate.\\n\\n10 When its factual predicates are met, Section 4 provides jurisdiction over a\\n\\n11 defendant “regardless of the date of the occurrence of the act of international\\n\\n12 terrorism upon which [the relevant] civil action was filed,” 18 U.S.C. § 2334(e)(1),\\n\\n13 providing that the defendant subsequently commits certain acts. But irrespective\\n\\n14 of whether this language suggests that Section 4 applies retroactively to pending\\n\\n15 cases, such as the appeal in Klieman, it does not suggest that courts should\\n\\n16 reopen cases that are no longer pending. Legislation applies prospectively unless\\n\\n17 Congress explicitly provides for retroactive application. Vartelas v. Holder, 566\\n\\n18 U.S. 257, 265–66 (2012); see Landgraf v. USI Film Prods., 511 U.S. 244, 272–73\\n\\n\\n\\n 10\\n\\f1 (1994). And it is well-established that retroactive laws generally do not affect\\n\\n2 valid, final judgments. See Bank Markazi v. Peterson, 136 S. Ct. 1310, 1323 (2016)\\n\\n3 (“Congress . . . may not ‘retroactively comman[d] the federal courts to reopen\\n\\n4 final judgments.’” (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219\\n\\n5 (1995) (alteration in original))). The mandate in this case was issued two and a\\n\\n6 half years ago, and the Supreme Court denied the plaintiffs’ petition for a writ of\\n\\n7 certiorari more than six months before the plaintiffs filed their motion to recall\\n\\n8 the mandate. The ATCA does not provide explicitly or implicitly that closed\\n\\n9 cases can be reopened. Recalling the mandate now would offend “the need to\\n\\n10 preserve finality in judicial proceedings.” Taylor, 822 F.3d at 90 (quotation marks\\n\\n11 omitted). 2\\n\\n12 CONCLUSION\\n\\n13 This case does not warrant invoking the extraordinary remedy of recalling\\n\\n14 a mandate issued two and a half years ago. The Court has considered all the\\n\\n15 arguments of the parties. To the extent not specifically addressed, they are either\\n\\n\\n\\n\\n 2 The plaintiffs in this case have filed a new complaint in the Southern District of New York.\\n Sokolow v. Palestine Liberation Organization, No. 18cv12213 (S.D.N.Y.). To the extent that there\\n are any developments in the activities of the PA or the PLO that may subject them to personal\\n jurisdiction under the ATCA, they can be raised in that case.\\n 11\\n\\f1 moot or without merit. For the reasons explained above, the plaintiffs’ motion to\\n\\n2 recall the mandate is DENIED.\\n\\n\\n\\n\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2390,"cells":{"id":{"kind":"number","value":4627303,"string":"4,627,303"},"name":{"kind":"string","value":"UNITED STATES of America, Appellee, v. Michael O'BRIEN, AKA Jeremy Soto, AKA Stephen Conte, AKA George Manolas, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. O'Brien"},"decision_date":{"kind":"string","value":"2019-06-07"},"docket_number":{"kind":"string","value":"Docket 17-2087-cr; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Kearse, Livingston, Carney\", \"parties\": \"\", \"opinions\": [{\"author\": \"KEARSE, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17-2087-cr\\n USA v. O'Brien\\n\\n\\n\\n 1 UNITED STATES COURT OF APPEALS\\n\\n 2 FOR THE SECOND CIRCUIT\\n\\n 3 ------\\n\\n 4 August Term, 2018\\n\\n 5 (Argued: November 28, 2018 Decided: June 7, 2019)\\n\\n 6 Docket No. 17-2087-cr\\n\\n 7 _________________________________________________________\\n\\n 8 UNITED STATES OF AMERICA,\\n\\n 9 Appellee,\\n\\n10 - v. -\\n\\n11 MICHAEL O'BRIEN, AKA Jeremy Soto, AKA Stephen Conte, AKA\\n12 George Manolas,\\n\\n13 Defendant-Appellant.*\\n14 _________________________________________________________\\n\\n15 Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.\\n\\n16 Appeal from a judgment of the United States District Court for the\\n\\n\\n\\n * The Clerk of Court is directed to amend the official caption to conform with\\n the above.\\n\\f 1 Eastern District of New York, Roslynn R. Mauskopf, Judge, convicting defendant of\\n\\n 2 importing and possessing with intent to distribute methylone and anabolic steroids,\\n\\n 3 see 21 U.S.C. §§ 952(b), 960(b)(3), 960(b)(5), 841(a)(1), 841(b)(1)(C), and 841(b)(1)(E),\\n\\n 4 and conspiring to do so, see id. §§ 963 and 846; and of operating a stash house, see id.\\n\\n 5 §§ 841(a)(1), 856(a)(1) and 856(b). On appeal, defendant principally challenges (a) the\\n\\n 6 denial of his pretrial motion to suppress evidence on the ground that any statements\\n\\n 7 or consent were unknowing and involuntary because he was incapacitated by being\\n\\n 8 in withdrawal from an addictive substance, and (b) the sufficiency of the trial\\n\\n 9 evidence to establish that he knew what he was dealing with was a controlled\\n\\n10 substance. He also challenges the denial of his posttrial motion to dismiss the\\n\\n11 indictment on the grounds that methylone was designated a controlled substance\\n\\n12 pursuant to an unconstitutional delegation of Congressional power to the United\\n\\n13 States Attorney General, and that the designation process--publication in the Federal\\n\\n14 Register--did not constitute notice sufficient to afford due process. We find no merit\\n\\n15 in his contentions.\\n\\n16 Affirmed.\\n\\n17 MARGARET LEE, Assistant United States Attorney,\\n18 Brooklyn, New York (Richard P. Donoghue, United\\n19 States Attorney for the Eastern District of New York,\\n20 Amy Busa, Assistant United States Attorney,\\n21 Brooklyn, New York, on the brief), for Appellee.\\n\\n 2\\n\\f 1 SUSAN G. KELLMAN, Brooklyn, New York (Sarah\\n 2 Kunstler, Offices of Susan G. Kellman, Brooklyn,\\n 3 New York, on the brief), for Defendant-Appellant.\\n\\n\\n\\n\\n 4 KEARSE, Circuit Judge:\\n\\n 5 Defendant Michael O'Brien appeals from a judgment entered in the\\n\\n 6 United States District Court for the Eastern District of New York following a jury trial\\n\\n 7 before Roslynn R. Mauskopf, Judge, convicting him of five drug trafficking offenses,\\n\\n 8 to wit, importing methylone and anabolic steroids, and conspiring to do so, in\\n\\n 9 violation of 21 U.S.C. §§ 952(b), 960(b)(3), 960(b)(5), and 963 (Counts Two and One);\\n\\n10 possessing with intent to distribute those substances, and conspiring to do so, in\\n\\n11 violation of id. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(E), and 846 (Counts Four and\\n\\n12 Three); and operating a stash house, in violation of id. §§ 841(a)(1), 856(a)(1), and\\n\\n13 856(b) (Count Five); and sentencing him principally to 144 months' imprisonment, to\\n\\n14 be followed by a five-year term of supervised release. On appeal, O'Brien contends\\n\\n15 principally (a) that the district court erred in denying his pretrial motion to suppress,\\n\\n16 on Fourth and Fifth Amendment grounds, his postarrest statements and evidence\\n\\n17 seized from his apartments, arguing that his statements and any consents to search\\n\\n\\n\\n 3\\n\\f 1 were unknowing and involuntary because he was incapacitated by his addiction to\\n\\n 2 and withdrawal from a human growth hormone called Gamma-Hydroxybutyrate\\n\\n 3 (\\\"GHB\\\"); and (b) that the evidence at trial was insufficient to establish that he knew\\n\\n 4 the substances he was importing and possessing for distribution were controlled\\n\\n 5 substances. He also contends that the designation of methylone as a controlled\\n\\n 6 substance, making trafficking in that substance unlawful, was implemented through\\n\\n 7 an unconstitutional delegation of Congress's legislative power to the United States\\n\\n 8 Attorney General, and that the designation process--publication in the Federal\\n\\n 9 Register--did not constitute notice sufficient to afford due process. Finding no merit\\n\\n10 in his contentions, we affirm the judgment.\\n\\n\\n\\n\\n11 I. BACKGROUND\\n\\n\\n\\n\\n12 The present prosecution had its origin in seizures on September 20, 2013,\\n\\n13 by United States Customs and Border Protection (\\\"CBP\\\") officers, of three packages\\n\\n14 at the mail facility of John F. Kennedy International Airport, each addressed to a\\n\\n15 different person--none of them O'Brien--at the locations of different mailbox stores\\n\\n16 in Brooklyn, New York. Each package was field-tested and found to contain\\n\\n\\n 4\\n\\f 1 approximately one kilogram of methylone (commonly referred to as \\\"Molly\\\"). CBP\\n\\n 2 informed agents of Homeland Security Investigation (\\\"HSI\\\"), who took possession of\\n\\n 3 the packages.\\n\\n 4 HSI agents replaced the methylone in each intercepted package with a\\n\\n 5 sham substance, and they conducted controlled deliveries on September 23. One of\\n\\n 6 the addressees, Kimberly Ruud, arrived at the mailbox store to which a seized\\n\\n 7 package had been sent to a different addressee; she picked up that package, along\\n\\n 8 with a nonintercepted package that was addressed to her, and began to drive away.\\n\\n 9 Ruud was stopped and arrested. She consented to a search of her car. In addition to\\n\\n10 the two packages she had just collected, which were in the car's passenger area,\\n\\n11 agents found, inter alia, four packages in the trunk and two cellphones. Although the\\n\\n12 labels on the packages identified their respective contents as various uncontrolled\\n\\n13 substances, the six packages contained a total of nearly three kilograms of methylone\\n\\n14 and nearly three kilograms of anabolic steroids. An ensuing search of Ruud's\\n\\n15 cellphones revealed a series of communications on September 23 with a contact listed\\n\\n16 as \\\"Big,\\\" who was eventually identified as O'Brien.\\n\\n\\n\\n\\n 5\\n\\f 1 A. The October 10, 2013 Arrest of O'Brien\\n\\n 2 On October 10, 2013, pursuant to a 2011 New York State bench warrant\\n\\n 3 issued by the Suffolk County Superior Court (\\\"county court\\\") for the arrest of O'Brien\\n\\n 4 on a firearms charge on which he had pleaded guilty but had become a fugitive,\\n\\n 5 O'Brien was arrested by members of a state-and-federal task force that included HSI\\n\\n 6 Special Agent Vincent Marino and Special Agent Edward Alahverdian of the United\\n\\n 7 States Drug Enforcement Administration (\\\"DEA\\\"). The arrest warrant was executed\\n\\n 8 at O'Brien's apartment on College Point Boulevard in Queens, New York (the \\\"College\\n\\n 9 Point Apartment\\\" or \\\"Apartment\\\").\\n\\n10 As set out in greater detail in Part I.B. below, after O'Brien was arrested\\n\\n11 and handcuffed, he was given Miranda warnings by Alahverdian. O'Brien said that\\n\\n12 he understood his rights and was willing to answer some questions; and when\\n\\n13 Alahverdian asked whether the agents could search the apartment, O'Brien said they\\n\\n14 could look anywhere they wanted. Searching the Apartment pursuant to that\\n\\n15 consent, the agents found, inter alia, several kinds of drug paraphernalia, including\\n\\n16 lists of anabolic steroid chemicals; vials of a liquid labeled \\\"Genzyme\\\" (a steroid brand\\n\\n17 name) and hundreds of sheets of additional \\\"Genzyme\\\" labels; currency-counting\\n\\n18 machines and more than $10,000 in cash; 18 cellphones and 12 laptop computers;\\n\\n\\n 6\\n\\f 1 identification documents in various names, along with blank identification cards and\\n\\n 2 an identification-card printer; applications and receipts for mailbox rentals at mailbox\\n\\n 3 stores throughout Brooklyn; 27 airway bills for packages mailed from China; and a\\n\\n 4 ledger with annotated lists of anabolic steroids, locations, and phone numbers for\\n\\n 5 pick-up.\\n\\n 6 In the meantime, O'Brien was driven to a police precinct in Suffolk\\n\\n 7 County by Alahverdian, Marino, and a Suffolk County police officer. During the\\n\\n 8 drive, O'Brien was talkative, stating that he made purchases of methylone and\\n\\n 9 anabolic steroids from China online (describing the brand and color of the computer\\n\\n10 he used for that operation), and explaining that he had people in the United States\\n\\n11 rent local mailboxes and collect the packages he was importing.\\n\\n12 After their arrival at the precinct, Alahverdian and Marino formally\\n\\n13 interviewed O'Brien. Marino stated that the agents knew O'Brien had a \\\"stash house\\\"\\n\\n14 in an apartment at 132-35 41st Road in Queens (\\\"41st Road\\\"), and asked for his\\n\\n15 consent to search it. After Marino read a Department of Homeland Security, U.S.\\n\\n16 Immigration and Customs Enforcement (\\\"DHS/ICE\\\") consent form aloud and gave\\n\\n17 it to O'Brien to read, O'Brien signed it. The form signed by O'Brien states as follows:\\n\\n18\\n\\n\\n 7\\n\\f 1 I, Michael O'Brien, have been informed by U.S. Immigration and Customs\\n 2 Enforcement (ICE) Special Agent Vincent Marino of my right to refuse to consent to\\n 3 a search of my property, described as: . . .\\n\\n 4 Computer, phones\\n 5 132-35 41st Rd Apt 5E\\n 6 40-22 College Pt. Blvd 3PHR\\n\\n 7 I have also been advised by ICE Special Agent Marino that,\\n 8 if I voluntarily consent to a search of this property, anything\\n 9 discovered during this search may be used against me in criminal,\\n10 civil, or administrative proceedings.\\n\\n11 I have decided to allow ICE Special Agents Vincent Marino\\n12 and Homeland Security Special Agents . . . to conduct a complete\\n13 search of my apartments, located at 40-22 College Point Blvd\\n14 PH3R / 132-35 41st Road, Queens Apt 5E. These ICE Special\\n15 Agents are authorized by me to take any letters, papers, materials\\n16 or other property which they may desire to examine.\\n\\n17 I hereby voluntarily and intentionally consent to allow ICE\\n18 to search my property. My consent is freely given and not the\\n19 result of any promises, threats, coercion or other intimidation. I\\n20 have read the above statement and understand my rights.\\n\\n21 (Consent To Search dated October 10, 2013 (O'Brien's \\\"Written Consent To Search\\\"\\n\\n22 (bolding in original)), attached to Affidavit of Michael O'Brien dated April 30, 2019\\n\\n23 [sic] (\\\"O'Brien Suppression Motion Aff.\\\"), in support of motion to suppress.)\\n\\n24 Based on this written consent, law enforcement agents searched the 41st\\n\\n25 Road apartment and found, inter alia, numerous pills, powders, and jugs of liquid,\\n\\n\\n\\n 8\\n\\f 1 and approximately 11 kilograms of methylone. In addition, pursuant to a search\\n\\n 2 warrant, HSI Special Agent Joshua Schottenfeld, who had participated in the search\\n\\n 3 of the College Point Apartment, searched the computer that O'Brien told Alahverdian\\n\\n 4 and Marino he used to order methylone and anabolic steroids from China. That\\n\\n 5 computer contained receipts and a web browser history of orders from a website\\n\\n 6 offering legal and illegal items, including narcotics.\\n\\n 7 After O'Brien signed the written consent form at the police precinct, he\\n\\n 8 was taken to the county court pursuant to the bench warrant issued for his arrest as\\n\\n 9 a fugitive. In that court proceeding, the prosecutor asked that bail be denied, noting\\n\\n10 that O'Brien apparently had access to large amounts of cash, as the search of his\\n\\n11 apartment at the time of his arrest found \\\"lots of pills\\\" and \\\"kilos of cocaine\\\" (People\\n\\n12 v. O'Brien, No. 2456-2009, Superior Court of the State of New York, County of Suffolk,\\n\\n13 October 10, 2013 (\\\"County Court Transcript\\\"), at 2-3). The court noted that it had\\n\\n14 issued the bench warrant for O'Brien's arrest in May 2011 and that O'Brien had\\n\\n15 remained a fugitive for more than two years, and it ruled that bail would thus be\\n\\n16 denied.\\n\\n17 O'Brien's attorney then informed the court that O'Brien needed medical\\n\\n18 attention because he was addicted to GHB. O'Brien himself stated that the full name\\n\\n\\n 9\\n\\f 1 of GHB was Gamma-Hydroxybutyrate and explained its nature and effects. The\\n\\n 2 proceeding ended with the court's scheduling O'Brien's next appearance.\\n\\n 3 Following that county court proceeding, O'Brien was admitted to a\\n\\n 4 nearby medical center, where he remained for five days, prior to being sent to the\\n\\n 5 Suffolk County Jail. Some days thereafter, he was released on bail.\\n\\n 6 On October 29, 2013, O'Brien was charged in a one-count federal criminal\\n\\n 7 complaint with conspiracy to import methylone and was arrested by federal\\n\\n 8 authorities. He was indicted in November on the present five narcotics trafficking\\n\\n 9 counts.\\n\\n\\n\\n\\n10 B. The Suppression Motion\\n\\n11 In April 2014, O'Brien moved to suppress his October 10, 2013 postarrest\\n\\n12 statements and the items seized in the searches of his apartments. His supporting\\n\\n13 affidavit stated, inter alia, that when he was arrested on October 10, he was under the\\n\\n14 influence of GHB and was addicted to it; that he had so advised the arresting agents;\\n\\n15 and that he repeatedly told them that if he was not promptly taken to a medical\\n\\n16 facility he was in danger of detoxification death. (See O'Brien Aff. ¶ 3.) O'Brien stated\\n\\n17 that he did not remember receiving Miranda warnings on October 10, and that no one\\n\\n\\n 10\\n\\f 1 read those rights to him that day (see id. ¶ 10); that he \\\"ha[d] no recollection of giving\\n\\n 2 [his] consent to law enforcement to search\\\" the College Point Apartment or the 41st\\n\\n 3 Road apartment (id. ¶ 6; see id. ¶ 5); and that because he was in withdrawal from GHB\\n\\n 4 at the time of his arrest, he lacked the capacity to waive his Miranda rights or to\\n\\n 5 consent to searches (see id. ¶ 10). He stated that the signature on the Written Consent\\n\\n 6 To Search form was not his. (See id. ¶ 6.)\\n\\n 7 The district court conducted a hearing on O'Brien's suppression motion\\n\\n 8 on August 13 and 22, 2014. The government called as witnesses Alahverdian and\\n\\n 9 Schottenfeld; O'Brien testified and called Marino as a witness.\\n\\n\\n\\n\\n10 1. The Testimony of Alahverdian\\n\\n11 Alahverdian testified that when he first saw O'Brien on October 10, 2013,\\n\\n12 O'Brien had already been arrested and was in handcuffs, sitting on a couch in his\\n\\n13 living room. Also in the living room was Marino. Alahverdian approached and\\n\\n14 introduced himself to O'Brien, who seemed eager to talk to the two agents.\\n\\n15 Alahverdian said O'Brien would \\\"have to wait\\\" until he received Miranda warnings\\n\\n16 and would have to deal with the local authorities about the state warrant on which\\n\\n17 he had just been arrested. (Hearing Transcript, August 13, 2014 (\\\"Aug. 13 Tr.\\\"),\\n\\n\\n 11\\n\\f 1 at 11-12; see also id. at 14 (Alahverdian told O'Brien \\\"we just have to get through this\\n\\n 2 and then I'm willing to listen to anything you have to say\\\").)\\n\\n 3 Alahverdian, with Marino present, read the Miranda warnings aloud and\\n\\n 4 asked whether O'Brien understood and whether he was willing to answer some\\n\\n 5 questions; O'Brien said yes to both and seemed a little excited. (See id. at 14-15.)\\n\\n 6 When Alahverdian asked whether the agents could search the apartment, \\\"[O'Brien]\\n\\n 7 said, yeah, you can look anywhere you want.\\\" (Id. at 16.)\\n\\n 8 After receiving this oral consent to search, Alahverdian relayed it to his\\n\\n 9 supervising officer and then returned to the living room; at that point, O'Brien told\\n\\n10 Alahverdian and Marino that he was addicted to GHB, that he ingested it daily, and\\n\\n11 he asked to be allowed to take some immediately. (See id. at 17 (\\\"He asked for a cup\\n\\n12 of GHB.\\\").) O'Brien told them that if he did not get his dosage of GHB \\\"he would get\\n\\n13 sick\\\"; but he did not say he needed to be taken to a hospital. (Id. at 46.) Alahverdian\\n\\n14 and Marino told O'Brien that he could not be given GHB because it is a controlled\\n\\n15 substance. (See id. at 17-18, 46.) O'Brien then asked if he could take a Valium pill and\\n\\n16 told Marino where to find one. Alahverdian, after briefly stepping away again to\\n\\n17 confer with his supervisor and returning to the living room, inferred that Marino had\\n\\n18 allowed O'Brien to take a Valium because he heard O'Brien thanking Marino. (See id.\\n\\n\\n 12\\n\\f 1 at 18, 47; see also Hearing Transcript, August 22, 2014 (\\\"Aug. 22 Tr.\\\"), at 12-13.)\\n\\n 2 Alahverdian testified that during the time he and Marino were in the\\n\\n 3 College Point Apartment with O'Brien, O'Brien was \\\"very talkative\\\" and \\\"was very\\n\\n 4 alert.\\\" (Aug. 13 Tr. 18; see id. at 29.) O'Brien was not slurring his words in any way,\\n\\n 5 and Alahverdian saw no indication that he was undergoing withdrawal. (See id.\\n\\n 6 at 19.) During the drive from the Apartment to the police precinct in Suffolk County,\\n\\n 7 O'Brien continued to be talkative, describing \\\"using his black Acer computer\\\" to\\n\\n 8 \\\"order[] Molly\\\" on \\\"websites like Ali Baba and Silk Road,\\\" and have it shipped to the\\n\\n 9 United States. (Id. at 20-21.)\\n\\n10 When they arrived at the precinct, O'Brien asked to have a cigarette and\\n\\n11 was allowed to smoke before entering the building. He thanked Alahverdian and\\n\\n12 Marino for treating him with courtesy and consideration. (See Aug. 13 Tr. 21-22.)\\n\\n13 After entering the precinct, Alahverdian, Marino, and O'Brien went into an interview\\n\\n14 room, where O'Brien was asked for consent to search his 41st Road stash pad. The\\n\\n15 DHS/ICE consent form was read to him, listing items and places to be searched;\\n\\n16 O'Brien did not ask any questions or give any indication that he did not understand.\\n\\n17 (See id. at 26.) He was given the form to read and was told that he had the right to\\n\\n18 refuse consent; he signed the form without indicating that he wished to refuse. (See,\\n\\n\\n 13\\n\\f 1 e.g., id. at 26-29, 52-54, 63-64; see also id. at 54 (after looking at the consent-to-search\\n\\n 2 form, O'Brien signed it, saying \\\"yeah, it's okay or yes\\\").\\n\\n 3 When Alahverdian asked O'Brien what the agents were likely to find in\\n\\n 4 searching the 41st Road premises, O'Brien said there might be some steroids and that\\n\\n 5 there were about 10 kilograms of methylone. When Alahverdian sought details of the\\n\\n 6 operation, O'Brien said that, per kilo, he was buying methylone for about $1,900 and\\n\\n 7 selling it for $30,000. He again described ordering methylone online from China,\\n\\n 8 having it sent to local mailbox store addresses, and then having his people pick up\\n\\n 9 the packages for him. (See Aug. 13 Tr. 27, 29-30.)\\n\\n10 Alahverdian testified that after leaving the College Point Apartment,\\n\\n11 O'Brien had made no further mention of his addiction to GHB nor any mention of\\n\\n12 symptoms of withdrawal. (See id. at 27-29, 31-32, 61.) During his entire conversation\\n\\n13 with Alahverdian and Marino, O'Brien was talkative and pleasant and appeared to\\n\\n14 have no difficulty focusing on the agents' questions, or understanding them, or\\n\\n15 communicating. Alahverdian did not notice anything unusual about O'Brien's\\n\\n16 behavior. (See id. at 32.)\\n\\n\\n\\n\\n 14\\n\\f 1 2. The Testimony of Schottenfeld\\n\\n 2 Schottenfeld testified principally about the evidence found on O'Brien's\\n\\n 3 computer (described in Part I.A. above) and about two recorded statements O'Brien\\n\\n 4 made to persons other than Alahverdian and Marino. First, Schottenfeld read the\\n\\n 5 following part of the October 10 county court transcript that followed the court's\\n\\n 6 refusal to grant O'Brien bail and encompassed the entire discussion of O'Brien's\\n\\n 7 physical condition:\\n\\n 8 Ms. Gearrity [O'Brien's then-attorney]: Judge, he has a\\n 9 serious GHB addiction, so we're going to need medical attention.\\n\\n10 The Court: All right. Medical attention. What's G.H.B.?\\n\\n11 The Defendant: Um, your Honor, it's--it's detrimental, it's\\n12 fatal.\\n\\n13 Ms. Gearrity: What's the name of it?\\n\\n14 The Defendant: Gamma hydroxybutyrate. It's a chemical\\n15 that goes in the body and reduces your dopamine levels. When\\n16 coming off of it, it will actually start firing dopamine, increasing\\n17 my heart rate and I'll go into cardiac arrest if I don't get the proper\\n18 treatment.\\n\\n19 The Court: All right. I'll mark it medical attention.\\n\\n20 (Aug. 13 Tr. 82 (see County Court Oct. 10 Transcript at 3-4).)\\n\\n\\n\\n\\n 15\\n\\f 1 Second, Schottenfeld testified that he had listened to consensually\\n\\n 2 recorded telephone calls made by O'Brien from the county jail. Schottenfeld\\n\\n 3 identified a \\\"CD [that] comes from the jail stating it's Mr. O'Brien\\\" (Aug. 13 Tr. 87),\\n\\n 4 which contained an October 16, 2013 conversation between O'Brien and a woman\\n\\n 5 later identified as his ex-fiancée (see Aug. 22 Tr. 68). The CD was introduced and\\n\\n 6 played for the court. (See Aug. 13 Tr. 83-84.) Although it does not appear that the\\n\\n 7 record contains a transcript of the CD, O'Brien's own testimony--on cross-examination\\n\\n 8 at the August 22 session of the suppression hearing--as to what he said in that\\n\\n 9 recorded conversation was, in part, as follows:\\n\\n10 Q. You told her that the agents came in, and they were like,\\n11 well, we don't actually have a search warrant for your house, so,\\n12 but we could get one. So you know, you want to let us look\\n13 around. And I said, go ahead, feel free, I said, go ahead take a look. Is\\n14 that correct?\\n\\n15 A. That's correct.\\n\\n16 Q. And is that an accurate reflection of what happened in your\\n17 apartment?\\n\\n18 A. I would say so.\\n\\n19 Q. That they told you, that they didn't have a search warrant,\\n20 and asked for permission to search and you said, go ahead; is that\\n21 correct?\\n\\n\\n\\n 16\\n\\f 1 A. That's correct.\\n\\n 2 (Aug. 22 Tr. 68-69 (emphases added).)\\n\\n\\n\\n\\n 3 3. The Testimony of Marino\\n\\n 4 Marino, called as a witness by O'Brien, testified principally as follows.\\n\\n 5 When Marino first saw O'Brien at the College Point Apartment on October 10, O'Brien\\n\\n 6 had already been handcuffed. (See Aug. 22 Tr. 6-7.) After Marino and Alahverdian\\n\\n 7 introduced themselves as federal officers, O'Brien responded \\\"Okay\\\" and said that he\\n\\n 8 was prepared to help, which Marino understood to mean that O'Brien sought to avoid\\n\\n 9 imprisonment by providing information. (See id. at 29.) Alahverdian then read\\n\\n10 O'Brien the Miranda warnings; O'Brien said he understood those rights. (See id. at 30.)\\n\\n11 O'Brien said he was willing to speak to the agents, and he orally gave consent for the\\n\\n12 search of the Apartment. (See id. at 10 (\\\"I asked him if we were okay to search and he\\n\\n13 said go right ahead.\\\").)\\n\\n14 After O'Brien \\\"had given [the agents] consent to search the apartment,\\n\\n15 . . . then he advised that he was addicted to the Ghb and the anabolic steroids.\\\" (Id.\\n\\n16 at 10.) O'Brien also \\\"advised [the agents] he was very eager to assist us in the\\n\\n17 investigations\\\" (id. at 11-12), and expressed his eagerness to stay out of jail, reiterating\\n\\n\\n 17\\n\\f 1 \\\"throughout the course of the day\\\" that \\\"in order to most help out law enforcement,\\\"\\n\\n 2 \\\"he would need to be out in the street\\\" (id. at 34).\\n\\n 3 As to his addiction, O'Brien said he had taken GHB that morning and\\n\\n 4 asked whether he could take more. When Marino replied that that would not be\\n\\n 5 permitted, O'Brien said that \\\"if that d[id]n't happen, [he] c[ould] get very sick\\\";\\n\\n 6 Marino testified, \\\"I don't know if he used the word 'die,' but\\\" it was either \\\"'sick' or\\n\\n 7 'die'.\\\" (Id. at 12.) O'Brien did not, however, say he was experiencing any symptoms\\n\\n 8 at that time (see id. at 32), and Marino understood him to be saying that he would\\n\\n 9 have problems in the future (see id. at 13). O'Brien asked, if he would not be allowed\\n\\n10 more GHB, whether Marino would let him have a Valium--and pointed to a pill next\\n\\n11 to a prescription bottle--explaining that Valium would help in \\\"counteracting\\\" the\\n\\n12 GHB (id. at 12). Marino testified that although it was certainly not standard\\n\\n13 procedure, he let O'Brien have a Valium pill because O'Brien seemed \\\"sincere.\\\" (Id.\\n\\n14 at 13 (\\\"It sounded like he was legitimate.\\\").)\\n\\n15 When O'Brien disclosed his GHB addiction, he did not elaborate and\\n\\n16 \\\"[h]e was not complaining of anything\\\"; \\\"[h]e was fine.\\\" (Id. at 17.) He was calm, was\\n\\n17 not slurring his words, and was having no difficulty speaking. (See id. at 30-32.) He\\n\\n18 also exhibited no difficulty in understanding the agents' questions, or focusing, or\\n\\n\\n 18\\n\\f 1 staying awake. (See id. 29, 39.) Although O'Brien's hands were \\\"slightly shaking\\\" at\\n\\n 2 the outset, Marino testified that he attributed that simply to O'Brien's being arrested;\\n\\n 3 he \\\"asked [O'Brien] a couple of times throughout the interview if he was feeling okay\\n\\n 4 and he said he was fine. . . . There was nothing out of the ordinary.\\\" (Id. at 33.)\\n\\n 5 There was no point in the day when O'Brien did not appear to be lucid,\\n\\n 6 or when he did not understand what was going on, or when the agents had any\\n\\n 7 difficulty communicating with him. (See id. at 36-37.) After the agents and O'Brien\\n\\n 8 left the Apartment and were on the way to the police precinct in Suffolk County,\\n\\n 9 O'Brien did not exhibit any symptoms of possible withdrawal or intoxication and was\\n\\n10 speaking freely (see id. at 34), giving the agents details about his drug importation\\n\\n11 operation.\\n\\n12 He advised that he had a black Acer computer that had on the\\n13 computer all his information from the purchases he made from\\n14 China because he was selling large amounts of Molly . . . . He said\\n15 that he also used websites such as Ali Baba and Silk Road and\\n16 there would be conversations and receipts on that computer. He\\n17 also admitted to having paid an individual [named] Wagner $200\\n18 for every time he picked up a box of Molly from a mailbox store\\n19 [that O'Brien had had him open] in [Wagner's] name.\\n\\n20 (Id. at 15-16.)\\n\\n\\n\\n\\n 19\\n\\f 1 In the interview room at the police precinct, Marino told O'Brien that the\\n\\n 2 agents knew about O'Brien's stash house at 41st Road: \\\"I said we knew about the\\n\\n 3 stash house and the location. I said I would like to search it. He said okay.\\\" (Id. at 19\\n\\n 4 (emphases added).) Asked what the agents would find in that search, O'Brien\\n\\n 5 responded, \\\"[m]ultiple vials of steroids and probably about 10 keys of Molly.\\\" (Id.;\\n\\n 6 see also Aug. 13 Tr. 30 (\\\"key\\\" is used as slang for kilogram).)\\n\\n 7 Marino then filled out the DHS/ICE consent form (quoted in full in Part\\n\\n 8 I.A. above), read it to O'Brien and went over it with him. Marino informed O'Brien\\n\\n 9 \\\"that he had a right to refuse to consent to search his computer, his phones, the\\n\\n10 apartment at 41st Road and the College Point Boulevard apartment.\\\" (Aug. 22 Tr. 21.)\\n\\n11 O'Brien did not in any way indicate that he wished to refuse consent. (See id. at 35.)\\n\\n\\n\\n\\n12 4. The Testimony of O'Brien\\n\\n13 O'Brien testified at the suppression hearing and largely denied that he\\n\\n14 had given the above consents to search. He said that when he met Marino, he\\n\\n15 immediately told the agents that they needed to get him to a hospital within four\\n\\n16 hours or he would die. He also testified that he told the agents of his need for\\n\\n17 medical attention three times during the approximately 20 minutes they were in the\\n\\n\\n 20\\n\\f 1 College Point Apartment, and that later that day he so informed the county court.\\n\\n 2 O'Brien testified that he remembered speaking to Marino, but he did not\\n\\n 3 remember speaking to, or even seeing, Alahverdian that day. (See Aug. 22 Tr. at 43,\\n\\n 4 63.) O'Brien did not remember, inter alia, receiving Miranda warnings (see id. at 45, 67)\\n\\n 5 or signing the DHS/ICE consent form attached to his Suppression Motion Affidavit\\n\\n 6 (see id. at 51). Notwithstanding his claimed inability to remember several events of\\n\\n 7 October 10, O'Brien said \\\"I can testify . . . , swear up and down,\\\" that \\\"I have never\\n\\n 8 had a conversation about th[e DHS/ICE] form.\\\" (Id.) O'Brien noted that his arrest on\\n\\n 9 October 10, 2013, was pursuant to a state warrant, and he testified that at \\\"[n]o time\\n\\n10 did [he] invite [Marino] to go collecting evidence on an outside case.\\\" (Id. at 44; see\\n\\n11 id. at 51 (\\\"The only consent that I gave, was to look around the College Point location,\\n\\n12 they were asking about guns. I told them there are no guns in this property. You can\\n\\n13 look around.\\\"); but see id. at 67 (O'Brien \\\"d[id]n't remember giving them consent to\\n\\n14 search [the College Point Apartment]\\\").)\\n\\n15 O'Brien denied signing the Written Consent To Search form at the police\\n\\n16 precinct as Marino and Alahverdian described. First, O'Brien testified that in fact he\\n\\n17 was not taken to a precinct but had instead been driven from the Apartment directly\\n\\n18 to the county courthouse. (See id. at 47.) In addition, he testified that he never gave\\n\\n\\n 21\\n\\f 1 a written consent to search. (See id. at 45, 53; see also O'Brien Aff. ¶ 6 (the \\\"signature\\\"\\n\\n 2 on the \\\"Consent to Search Form . . . . is not mine\\\").) However, he also testified to\\n\\n 3 having a \\\"fuzzy\\\" recollection of being visited by Marino and Alahverdian in the\\n\\n 4 hospital while he was \\\"in and out of\\\" a \\\"coma,\\\" and he \\\"deduce[d] that that is where\\n\\n 5 they had me sign the consent to search form\\\" (Aug. 22 Tr. 49-50).\\n\\n 6 O'Brien admitted that in the postarrest car ride from the College Point\\n\\n 7 Apartment he told the agents he had a black Acer computer at the Apartment. He\\n\\n 8 also admitted that he had in fact used the Ali Baba website; but he denied that he so\\n\\n 9 told the agents. (See id. at 75-76.) O'Brien also admitted that during that drive he told\\n\\n10 the agents about the 41st Road stash pad. \\\"I told them there were steroids there and\\n\\n11 . . . maybe some molly . . . .\\\" (Id. at 53.) However, he testified that \\\"at no time did the[\\n\\n12 agents] ask [him] for consent to search the [41st Road] apartment\\\" and that he \\\"never\\n\\n13 gave consent.\\\" (Id.)\\n\\n14 As to his physical condition, O'Brien testified that, although he could\\n\\n15 normally sleep 3-4 hours without being awakened by GHB withdrawal symptoms (see\\n\\n16 id. at 42, 77-78), on October 10 he began experiencing GHB withdrawal symptoms\\n\\n17 when he was being taken down in the elevator from the Apartment, which was some\\n\\n18 30-35 minutes after he had last taken GHB (see, e.g., id. at 60 (his \\\"arrest . . . was about\\n\\n\\n 22\\n\\f 1 15 minutes [after his] last dose\\\")). He said he was taken to the county courthouse, a\\n\\n 2 trip that took about 1½ hours, and that when they arrived he could not walk without\\n\\n 3 staggering (see id. at 47). O'Brien testified \\\"seizure was running through my body, my\\n\\n 4 entire body was shaking, my hands shaking\\\" \\\"as [he was] standing before the Suffolk\\n\\n 5 County Judge\\\" (id. at 58).\\n\\n 6 O'Brien acknowledged that his then-attorney said nothing to the court\\n\\n 7 early in the hearing about his addiction or any withdrawal symptoms. It was not\\n\\n 8 until the court said that bail would be denied that she raised that subject. (See Aug.\\n\\n 9 22 Tr. 79-80.) He said that after the county court denied him bail,\\n\\n10 I asked for medical attention there, in the Court, in the courtroom.\\n11 Judge Efman had to finish my sentence for me as I was asking for\\n12 medical attention, because I was seizure-ing. I could not come out\\n13 with the words. Judge finished the sentence, you need medical\\n14 attention, I said, yes, sir.\\n\\n15 (Id. at 48.) He testified that \\\"despite the clarity of the [county court] transcripts,\\\" he\\n\\n16 \\\"had a massive seizure\\\" on October 10 \\\"right there in open court.\\\" (Id. at 47-48.)\\n\\n17 While claiming to have been unable to find the words \\\"medical\\n\\n18 attention,\\\" O'Brien did not dispute that he had been able to tell the court that GHB\\n\\n19 stood for \\\"Gamma Hydroxybutyrate\\\" and to explain its chemical effects on the body\\n\\n20 (id. at 80; see id. at 81-82). O'Brien admitted that had been \\\"able to understand\\\" with\\n\\n\\n 23\\n\\f 1 \\\"no difficulty . . . what was going on\\\" in that proceeding; and he acknowledged that\\n\\n 2 the transcript contains no indication that he was shaking, staggering, falling, having\\n\\n 3 a seizure, or unable to articulate. (Id. at 81-82.)\\n\\n\\n\\n\\n 4 5. The District Court's Decision\\n\\n 5 In a decision announced on the record on March 20, 2015, the district\\n\\n 6 court denied O'Brien's suppression motion. (See Status Conference Transcript March\\n\\n 7 20, 2015 (\\\"Suppression Motion Decision\\\").) The court concluded, based on the totality\\n\\n 8 of the circumstances credibly shown by the record, that the government had carried\\n\\n 9 its burden of proving that on October 10, 2013, O'Brien made the various statements\\n\\n10 attributed to him pursuant to valid Miranda waivers; that the searches at issue were\\n\\n11 authorized by O'Brien's voluntary consent, first oral and then written; and that while\\n\\n12 the Written Consent To Search was not a model of clarity, even read in the light most\\n\\n13 favorable to O'Brien it encompassed everything found in his two apartments,\\n\\n14 including his computers and phones.\\n\\n15 The court found that the agents who testified at the suppression hearing\\n\\n16 were credible witnesses, based principally on their demeanor, their experience, and\\n\\n17 the content of their testimony. In addition, the court found that Marino's credibility\\n\\n\\n 24\\n\\f 1 was enhanced by his candor in admitting that he had allowed O'Brien to take a\\n\\n 2 Valium, an admission that \\\"was . . . not necessarily in [Marino's] best interest,\\\" id. at 4.\\n\\n 3 The court found that Miranda warnings were properly administered at the College\\n\\n 4 Point Apartment; it credited the testimony of Alahverdian and Marino that O'Brien\\n\\n 5 appeared to be calm, lucid, talkative, and \\\"cogently answering questions, giving the\\n\\n 6 agents detailed information\\\" in \\\"wanting to help get himself out of this situation,\\\" and\\n\\n 7 that the agents saw no signs that O'Brien was undergoing withdrawal. Id. at 8.\\n\\n 8 The district court rejected O'Brien's claim that he had been incapable of\\n\\n 9 consenting to searches of his properties on October 10 because of withdrawal from\\n\\n10 GHB. It found that his testimony lacked credibility \\\"in significant part, if not in\\n\\n11 whole,\\\" id. at 4; see id. at 5-6 (\\\"much of his testimony was belied by every other piece\\n\\n12 of evidence in the case,\\\" including being inconsistent with \\\"his premotion affidavit\\\"\\n\\n13 and with \\\"the jail call that he made to his girlfriend\\\"). The court also noted that the\\n\\n14 transcript of O'Brien's October 10 appearance in county court showed that O'Brien\\n\\n15 was in control of his faculties [and] was explaining in detail to\\n16 Judge Ef[]man the potential [e]ffects of GHB withdrawal . . .\\n17 [O'Brien] was being his own very effective advocate . . . which\\n18 demonstrates now probably hours after [his] last hit of GHB that\\n19 he was not suffering in any way, shape, or form from any type . . .\\n20 of withdrawal that could affect his ability to knowingly and\\n21 voluntarily waive his Miranda rights or consent to any of the\\n22 searches.\\n\\n 25\\n\\f 1 Id. at 8-9. The court rejected as \\\"incredible\\\" O'Brien's assertion that he had a seizure\\n\\n 2 right after the court reporter stopped recording the proceedings. Id. at 9.\\n\\n 3 The court also found \\\"no evidence in the hospital records to corroborate\\n\\n 4 [O'Brien's] story\\\" that he had a seizure, went into a coma, and was largely\\n\\n 5 unconscious for the next several days. Id. at 10. It noted that those medical records\\n\\n 6 themselves commented \\\"that his stay was, quote, unremarkable.\\\" Id. The court found\\n\\n 7 that O'Brien's \\\"notion that the consent form was signed at the hospital while [he] was\\n\\n 8 in a coma\\\" was belied by all of the other evidence in the case, as well as being\\n\\n 9 \\\"completely implausible.\\\" Id. at 5.\\n\\n10 In sum, the district court stated, \\\"I find that the [e]ffects of GHB,\\n\\n11 whatever they were on the defendant, did not in any way undermine the defendant's\\n\\n12 knowing and voluntary consent to search, the oral consent at College Point, and the\\n\\n13 written consent for both College Point and 41st Road, or the waiver of his Miranda\\n\\n14 rights,\\\" id. at 10.\\n\\n\\n\\n\\n15 C. The Trial, and O'Brien's Posttrial Motions\\n\\n16 In May 2015, with the start of his trial about two months away, O'Brien,\\n\\n17 who had been represented by counsel throughout the pretrial proceedings, elected\\n\\n\\n 26\\n\\f 1 to represent himself at trial. The court, after conducting a Faretta inquiry, see Faretta\\n\\n 2 v. California, 422 U.S. 806, 835 (1975), allowed him to proceed pro se, with standby\\n\\n 3 counsel. On July 28, 2015, the sixth day of trial, the jury found O'Brien guilty on all\\n\\n 4 five of the counts against him.\\n\\n 5 After the jury verdict, O'Brien decided that he no longer wanted to\\n\\n 6 proceed pro se, and counsel was appointed to represent him. However, on August 11,\\n\\n 7 2015, O'Brien again decided that he wanted to proceed pro se; and again, after\\n\\n 8 appropriate Faretta warnings, he was allowed to do so with standby counsel. In this\\n\\n 9 new pro se period, O'Brien unsuccessfully moved for acquittal on the ground that the\\n\\n10 evidence was insufficient to show that he had any connection to the 41st Road\\n\\n11 apartment in which, inter alia, 11 kilograms of methylone had been found. Thereafter,\\n\\n12 while still pro se, O'Brien also moved, as discussed in Part II.C. below, for acquittal on\\n\\n13 the ground that methylone was designated a controlled substance pursuant to an\\n\\n14 unconstitutional delegation of Congress's legislative power. That motion too was\\n\\n15 denied.\\n\\n16 In June 2017, O'Brien decided that he wished to be represented by\\n\\n17 counsel again, and counsel was appointed to represent him in connection with\\n\\n18 sentencing.\\n\\n\\n 27\\n\\f 1 II. DISCUSSION\\n\\n\\n\\n\\n 2 On appeal, O'Brien principally challenges (A) the district court's denial\\n\\n 3 of his pretrial motion to suppress his postarrest statements and the physical evidence\\n\\n 4 that was seized, (B) the sufficiency of the trial evidence to show that he knew\\n\\n 5 methylone was a controlled substance, and (C) the denial of his posttrial motion to\\n\\n 6 dismiss the indictment on the ground that the process that led to the designation of\\n\\n 7 methylone as a controlled substance was unconstitutional. For the reasons that\\n\\n 8 follow, we reject all of his contentions.\\n\\n\\n\\n\\n 9 A. The Denial of O'Brien's Motion To Suppress\\n\\n10 O'Brien contends that his October 10, 2013 postarrest statements should\\n\\n11 have been suppressed on the ground that, as he was undergoing withdrawal from\\n\\n12 GHB, he was incapable of knowingly or voluntarily waiving his Fifth Amendment\\n\\n13 privilege against self-incrimination. He contends that the physical evidence seized\\n\\n14 in searching his College Point and 41st Road apartments should have been\\n\\n15 suppressed as violative of his rights under the Fourth Amendment on the ground that\\n\\n16 he did not give voluntary consent for those searches, either because of his claimed\\n\\n\\n 28\\n\\f 1 incapacitation by GHB withdrawal or because, he contends, the actions of the agents\\n\\n 2 were coercive and he was not informed of his right to refuse consent to search.\\n\\n 3 In considering challenges to the denial of a suppression motion, we\\n\\n 4 review the district court's conclusions of law de novo and its findings of fact for clear\\n\\n 5 error. See, e.g., United States v. Medunjanin, 752 F.3d 576, 584 (2d Cir.) (\\\"Medunjanin\\\"),\\n\\n 6 cert. denied, 135 S. Ct. 301 (2014). In conducting clear-error review, \\\"[w]e are not\\n\\n 7 allowed to second-guess the [court's] credibility assessments, and '[w]here there are\\n\\n 8 two permissible views of the evidence, the [court's] choice between them cannot be\\n\\n 9 clearly erroneous.'\\\" Id. (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985));\\n\\n10 see, e.g., United States v. Isiofia, 370 F.3d 226, 232 (2d Cir. 2004) (\\\"Isiofia\\\"). In reviewing\\n\\n11 the denial of a defendant's motion to suppress, we view the record in the light most\\n\\n12 favorable to the government. See, e.g., United States v. Moore, 670 F.3d 222, 226 (2d Cir.\\n\\n13 2012) (denial of motion to suppress postarrest statements); United States v. Moreno, 701\\n\\n14 F.3d 64, 72 (2d Cir. 2012) (denial of motion to suppress evidence seized in a search\\n\\n15 premised on consent). We see no error in the district court's denial of O'Brien's\\n\\n16 suppression motion.\\n\\n\\n\\n\\n 29\\n\\f 1 1. O'Brien's Postarrest Statements\\n\\n 2 \\\"Once Miranda warnings have been given, if the individual indicates 'that\\n\\n 3 he wishes to remain silent, the interrogation must cease.'\\\" Medunjanin, 752 F.3d at 585\\n\\n 4 (quoting Miranda v. Arizona, 384 U.S. 436, 473-74 (1966)); see also Berghuis v. Thompkins,\\n\\n 5 560 U.S. 370, 386 (2010) (\\\"Police are not required to rewarn suspects from time to\\n\\n 6 time.\\\" (emphasis added)). In order to require that questioning cease, the accused\\n\\n 7 must assert his right affirmatively and unambiguously. See, e.g., id. at 381 (accused's\\n\\n 8 merely remaining \\\"[l]argely silent\\\" for some three hours did not invoke his privilege\\n\\n 9 to remain silent sufficiently to require that the officers refrain from questioning him\\n\\n10 (internal quotation marks omitted)). Where the accused \\\"did not\\\" say unambiguously\\n\\n11 either \\\"that he wanted to remain silent or that he did not want to talk with the police,\\n\\n12 . . . . he did not invoke his right to remain silent.\\\" Id. at 382.\\n\\n13 Nonetheless, an \\\"accused's statement during a custodial interrogation is\\n\\n14 inadmissable at trial unless the prosecution can establish that the accused 'in fact\\n\\n15 knowingly and voluntarily waived his [Miranda] rights' when making the statement.\\\"\\n\\n16 Id. (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). Such a \\\"waiver must be\\n\\n17 'voluntary in the sense that it was the product of a free and deliberate choice rather\\n\\n18 than intimidation, coercion, or deception,'\\\" and must be \\\"knowing[]\\\" in the sense that\\n\\n\\n 30\\n\\f 1 it was \\\"'made with a full awareness of both the nature of the right being abandoned and the\\n\\n 2 consequences of the decision to abandon it.'\\\" Berghuis, 560 U.S. at 382-83 (quoting\\n\\n 3 Moran v. Burbine, 475 U.S. 412, 421 (1986) (\\\"Burbine\\\") (emphasis ours)). \\\"'[A]s Miranda\\n\\n 4 holds, full comprehension of the rights to remain silent and request an attorney [is]\\n\\n 5 sufficient to dispel whatever coercion is inherent in the interrogation process.'\\\"\\n\\n 6 Berghuis, 560 U.S. at 382 (quoting Burbine, 475 U.S. at 427).\\n\\n 7 The waiver need not have been express; \\\"courts can infer a waiver of\\n\\n 8 Miranda rights 'from the actions and words of the person interrogated.'\\\" Berghuis, 560\\n\\n 9 U.S. at 387 (quoting Butler, 441 U.S. at 373). The prosecution need prove waiver only\\n\\n10 \\\"by a preponderance of the evidence,\\\" and it may be inferred \\\"from all the\\n\\n11 circumstances.\\\" Berghuis, 560 U.S. at 384. \\\"[A] suspect who has received and\\n\\n12 understood the Miranda warnings, and has not invoked his Miranda rights, waives the\\n\\n13 right to remain silent by making an uncoerced statement to the police.\\\" Id. at 388-89.\\n\\n14 In the present case, as described in Part I.B.5. above, the district court--\\n\\n15 crediting the hearing testimony of Alahverdian and Marino, as it was entitled to do--\\n\\n16 found that proper Miranda warnings were administered to O'Brien at the College\\n\\n17 Point Apartment, that he understood his rights, and that he knowingly and\\n\\n18 voluntarily waived them. The finding as to O'Brien's comprehension of the Miranda\\n\\n 31\\n\\f 1 warnings was supported by, inter alia, the agents' testimony that O'Brien was alert,\\n\\n 2 focused, and never evinced any difficulty understanding the agents or\\n\\n 3 communicating with them, and that he said he understood those rights when they\\n\\n 4 were read to him.\\n\\n 5 The evidence supporting the finding that O'Brien's ensuing statements\\n\\n 6 were voluntary included the testimony of the agents, described in Parts I.B.1. and\\n\\n 7 I.B.3. above, that (a) after receiving his Miranda warnings O'Brien said he was willing\\n\\n 8 to talk with the agents, (b) he had in fact expressed eagerness to provide them with\\n\\n 9 information immediately upon meeting them and was temporarily halted only\\n\\n10 because Alahverdian insisted on giving him Miranda warnings first, and (c) after\\n\\n11 receiving his Miranda warnings, O'Brien was extremely talkative and informative,\\n\\n12 freely giving the agents numerous details about the workings of his methylone and\\n\\n13 anabolic steroids operation. O'Brien himself has never asserted--in his affidavit, or\\n\\n14 in his suppression hearing testimony, or in his brief on appeal--that he ever told the\\n\\n15 agents he wished to remain silent or he did not want to talk with them.\\n\\n16 The court was not required to reach contrary conclusions on the basis of\\n\\n17 O'Brien's testimony that he did not remember being given Miranda warnings on\\n\\n18 October 10. The court found it clear that the warnings had in fact been given, see\\n\\n\\n 32\\n\\f 1 Suppression Motion Decision at 7; and O'Brien's professed inability to remember the\\n\\n 2 reading of Miranda warnings--which had interrupted his initial attempt to cooperate\\n\\n 3 in an effort to avoid imprisonment--was implausible at best. The court noted that\\n\\n 4 O'Brien's similar assertions that he did not remember giving permission that day to\\n\\n 5 search the College Point Apartment (see Aug. 22 Tr. 67; O'Brien Aff. ¶ 6) were not\\n\\n 6 credible in light of his recorded October 16 telephone call from jail to his ex-fiancée\\n\\n 7 (see Suppression Motion Decision at 5-6), in which O'Brien said that the agents had\\n\\n 8 asked for permission to search the Apartment and he had said, \\\"go ahead\\\" (Aug. 13\\n\\n 9 Tr. 83-84).\\n\\n10 The present record also fully supports the court's finding that O'Brien's\\n\\n11 ability to understand his Fifth Amendment rights and forgo them voluntarily was not\\n\\n12 impeded by his addiction to GHB. O'Brien's reliance on this Court's decision in\\n\\n13 United States v. Taylor, 745 F.3d 15 (2d Cir. 2014), for the contrary conclusion is\\n\\n14 misplaced. In that case, in which the defendant apparently had attempted to commit\\n\\n15 suicide by ingesting a large number of pills as he was arrested, we reversed the denial\\n\\n16 of a suppression motion where the record showed, inter alia, that \\\"Taylor was largely\\n\\n17 stupefied when he made his post-arrest statements, as confirmed by the testimony of the\\n\\n18 law enforcement agents and the pretrial services officer who interviewed him, and by the\\n\\n\\n 33\\n\\f 1 evaluations of staff psychologists at the Metropolitan Correctional Center,\\\" id. at 20\\n\\n 2 (emphases added); that \\\"all the witnesses support[ed] the account that Taylor was\\n\\n 3 actually slipping in and out of consciousness during [his first] interview, and immediately\\n\\n 4 before and after the [second] interview,\\\" id. at 26 n.3 (emphases added); and that it\\n\\n 5 was \\\"clear to the officers (as their testimony confirm[ed]) that Taylor was in and out of\\n\\n 6 consciousness while giving his statement, and in a trance or a stupor most of the time\\n\\n 7 when not actually asleep,\\\" id. at 25 (emphases added).\\n\\n 8 Here, in contrast, no one testified that O'Brien was somnolent or in a\\n\\n 9 stupor or not fully conscious during his dealings with Alahverdian and Marino. The\\n\\n10 agents testified squarely to the contrary. (See, e.g., Aug. 22 Tr. 34 (Marino: O'Brien\\n\\n11 did not appear to have had any difficulty staying awake); Aug. 13 Tr. 29\\n\\n12 (Alahverdian: O'Brien appeared to have no difficulty at all focusing on or\\n\\n13 understanding the agents' questions).) Alahverdian also testified that O'Brien was\\n\\n14 \\\"very talkative\\\" and \\\"very alert\\\" (Aug. 13 Tr. 18); and Marino testified that O'Brien\\n\\n15 was calm and coherent, speaking freely, and was lucid throughout the day (Aug. 22\\n\\n16 Tr. 12, 31-32, 36).\\n\\n17 O'Brien's own representations as to his condition were inconsistent. For\\n\\n18 example, in his affidavit, O'Brien said he was in withdrawal from GHB at the time of\\n\\n\\n 34\\n\\f 1 his arrest. (See O'Brien Aff. ¶ 10.) Yet there is no dispute that after O'Brien's arrest,\\n\\n 2 Alahverdian and Marino were in O'Brien's College Point Apartment for some 20\\n\\n 3 minutes before taking him downstairs for the drive to Suffolk County; and O'Brien\\n\\n 4 testified at the suppression hearing \\\"not until I went downstairs, that is when the\\n\\n 5 withdrawal began\\\" (Aug. 22 Tr. 65; see id. (\\\"Q. When you were speaking with agents\\n\\n 6 in your apartment, you were not going through withdrawal; is that correct? A. That's\\n\\n 7 correct.\\\")).\\n\\n 8 Both Alahverdian and Marino testified that O'Brien gave no appearance\\n\\n 9 of being in withdrawal--and said nothing about needing immediate medical\\n\\n10 attention--either at the Apartment or during the drive to the Suffolk County police\\n\\n11 precinct. (See, e.g., Aug. 13 Tr. 19, 27-29, 31-32, 46, 61; Aug. 22 Tr. 17, 32-34.) And\\n\\n12 although at the end of the interview at the police precinct O'Brien told the agents that\\n\\n13 he felt ill, the transcript of his ensuing county court proceeding--in which O'Brien\\n\\n14 himself explained the workings and effect of GHB, telling the court that the actual\\n\\n15 name of GHB is \\\"Gamma-Hydroxybutyrate\\\"--counters his claim that his cognitive\\n\\n16 powers were impaired. Indeed, at the suppression hearing O'Brien admitted that in\\n\\n17 the county court proceeding he in fact \\\"had no difficulty understanding what was\\n\\n18 going on\\\" (Aug. 22 Tr. 82).\\n\\n\\n 35\\n\\f 1 The district court discredited, as it was entitled to, O'Brien's claim that,\\n\\n 2 when he arrived at the county court, he was having a seizure. That claim is belied by\\n\\n 3 the undisputed facts that he and his attorney made no mention of his physical\\n\\n 4 condition until late in that court proceeding; and that when his attorney introduced\\n\\n 5 the fact of his addiction, there was no mention whatever of a seizure--either by the\\n\\n 6 attorney or by O'Brien himself. As the district court found, the county court\\n\\n 7 transcript of O'Brien's responses--some hours after his last ingestion of GHB--reveals\\n\\n 8 that O'Brien acted in that proceeding as a capable and articulate advocate for himself\\n\\n 9 and negates any inference that he was impaired when he agreed to speak with the\\n\\n10 agents earlier.\\n\\n11 In sum, the circumstances as a whole, as reflected in the present record,\\n\\n12 reveal no error either in the district court's findings that O'Brien received proper\\n\\n13 Miranda warnings, fully understood them, and voluntarily made statements to the\\n\\n14 agents, or in the court's conclusion that he thus waived his Fifth Amendment right to\\n\\n15 remain silent.\\n\\n\\n\\n\\n16 2. O'Brien's Consents To Search\\n\\n17 \\\"It is . . . well settled that one of the specifically established exceptions\\\"\\n\\n\\n 36\\n\\f 1 to the Fourth Amendment requirements that private property not be searched\\n\\n 2 without a search warrant issued upon probable cause \\\"is a search that is conducted\\n\\n 3 pursuant to consent.\\\" Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). When the\\n\\n 4 \\\"'prosecut[ion] seeks to rely upon consent to justify the lawfulness of a search, [it] has\\n\\n 5 the burden of proving that the consent was, in fact, freely and voluntarily given.'\\\" Id.\\n\\n 6 at 222 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).\\n\\n 7 The analysis required to determine whether consent to search was given\\n\\n 8 freely and voluntarily, however, differs somewhat from the above Fifth Amendment\\n\\n 9 analysis as to whether the postarrest right to remain silent was \\\"knowingly\\\" and\\n\\n10 voluntarily waived, for \\\"[t]here is a vast difference between those [Fifth Amendment\\n\\n11 truth-seeking] rights that protect a fair criminal trial and the rights guaranteed under\\n\\n12 the Fourth Amendment.\\\" Schneckloth, 412 U.S. at 241. Whereas \\\"[a] strict standard of\\n\\n13 waiver has been applied to those [Fifth Amendment] rights guaranteed to a criminal\\n\\n14 defendant to insure that\\\" he \\\"has not unknowingly relinquished the basic protections\\n\\n15 . . . thought indispensable to a fair trial,\\\" id. at 242, the Fourth Amendment's focus is\\n\\n16 not on truth-seeking at trial but rather on \\\"protect[ing] the 'security of one's privacy\\n\\n17 against arbitrary intrusion by the police,'\\\" id. (quoting Wolf v. Colorado, 338 U.S. 25, 27\\n\\n18 (1949)).\\n\\n\\n 37\\n\\f 1 Thus, focusing on what constitutes a valid consent for Fourth\\n\\n 2 Amendment purposes, the Schneckloth Court concluded that the considerations\\n\\n 3 informing the Miranda rule--that knowledge of a right to refuse to speak is an\\n\\n 4 indispensable element of a valid waiver of the privilege against self-incrimination--\\n\\n 5 \\\"are simply inapplicable\\\" to requests for a relaxation of one's insistence on the right\\n\\n 6 to privacy. Id. at 246. It ruled that the appropriate Fourth Amendment question is\\n\\n 7 \\\"whether a consent to a search was in fact 'voluntary' or was the product of duress or\\n\\n 8 coercion, express or implied.\\\" Id. at 227. Finding \\\"no reason . . . in the area of consent\\n\\n 9 searches\\\" to deviate \\\"from the traditional definition of 'voluntariness,'\\\" id. at 229, the\\n\\n10 Court stated that voluntariness \\\"is a question of fact to be determined from the\\n\\n11 totality of all the circumstances,\\\" id. at 227. And \\\"[w]hile knowledge of the right to\\n\\n12 refuse consent is one factor to be taken into account, the government need not\\n\\n13 establish such knowledge as the sine qua non of an effective consent.\\\" Id.; see also id.\\n\\n14 at 248-49; Edwards v. Arizona, 451 U.S. 477, 484 (1981) (\\\"Schneckloth . . . thus\\n\\n15 emphasized that the voluntariness of a consent or an admission on the one hand, and\\n\\n16 a knowing and intelligent waiver on the other, are discrete inquiries.\\\").\\n\\n17 Schneckloth announced its test in the context of the prosecution's reliance\\n\\n18 on consent given by the subject of the search who was not in custody. In United States\\n\\n 38\\n\\f 1 v. Watson, 423 U.S. 411 (1976), the Court held that the fact that consent was given by\\n\\n 2 the subject of the search while he was in custody does not change the test; custody is\\n\\n 3 a factor to be considered, but not one that is dispositive. Id. at 424 (\\\"the fact of\\n\\n 4 custody alone has never been enough in itself to demonstrate a coerced confession or\\n\\n 5 consent to search\\\"; \\\"under Schneckloth, the absence of proof that [the defendant] knew\\n\\n 6 he could withhold his consent, though it may be a factor in the overall judgment, is\\n\\n 7 not to be given controlling significance\\\").\\n\\n 8 As \\\"[t]he touchstone of the Fourth Amendment is reasonableness,\\\" Florida\\n\\n 9 v. Jimeno, 500 U.S. 248, 250 (1991), \\\"[t]he standard for measuring the scope of a\\n\\n10 suspect's consent under the Fourth Amendment is that of 'objective' reasonableness--\\n\\n11 what would the typical reasonable person have understood by the exchange between\\n\\n12 the officer and the suspect?\\\" Id. at 251. Thus, \\\"the ultimate question presented is\\n\\n13 whether the officer had a reasonable basis for believing that there had been consent\\n\\n14 to the search.\\\" United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995) (internal\\n\\n15 quotation marks omitted).\\n\\n\\n\\n\\n16 In the present case, the district court correctly determined that O'Brien\\n\\n17 consented to the searches of his College Point and 41st Road apartments and that his\\n\\n\\n 39\\n\\f 1 consents were not the product of duress or coercion, express or implied. While\\n\\n 2 O'Brien insists that his consent was involuntary because he was not informed that he\\n\\n 3 could refuse to give consent, that contention is legally and factually flawed. As\\n\\n 4 discussed above, Fourth Amendment standards do not make it mandatory to advise\\n\\n 5 a suspect of his right to refuse consent to search. And in any event, the Written\\n\\n 6 Consent To Search signed by O'Brien stated that he had in fact been informed that he\\n\\n 7 could refuse to consent to the search of his properties. O'Brien's testimony, varying\\n\\n 8 between, inter alia, claiming no recollection that he received appropriate warnings and\\n\\n 9 asserting categorically that he did not, provides no basis for overturning the district\\n\\n10 court's finding.\\n\\n11 Nor does the record support O'Brien's contention that the circumstances\\n\\n12 of his arrest on October 10 were inherently \\\"coercive\\\" (O'Brien brief on appeal at 42).\\n\\n13 O'Brien's effort to liken his case to Isiofia, 370 F.3d 226, in which we affirmed the grant\\n\\n14 of a suppression motion, falls woefully short. In Isiofia, the district court had\\n\\n15 plausibly found that a defendant's consent to search his apartment, computer, and car\\n\\n16 was not voluntary when it was given only after, inter alia, (a) agents entered Isiofia's\\n\\n17 apartment unlawfully, (b) eight agents remained in the living room with him for up\\n\\n18 to an hour and a quarter without a valid reason to remain there, (c) the agents did not\\n\\n\\n 40\\n\\f 1 tell him with what crime he was being charged, and (d) they gave Isiofia--who lacked\\n\\n 2 fluency in English--two consent-to-search forms that did not describe the nature of\\n\\n 3 the objects to be seized (one leaving that detail \\\"blank\\\" and the other being \\\"helplessly\\n\\n 4 vague\\\"). See id. at 231 (internal quotation marks omitted); id. at 234.\\n\\n 5 While O'Brien claims parallel circumstances by stating that he was\\n\\n 6 arrested and \\\"surrounded\\\" by a team of 10 or more officers from different agencies\\n\\n 7 (O'Brien brief on appeal at 43), the similarity ends with the fact that a large number\\n\\n 8 of officers entered O'Brien's home. Here, there was no illegal entry; the officers had\\n\\n 9 a well-founded fugitive warrant for his arrest, which allowed them to enter his\\n\\n10 Apartment to execute the arrest, see, e.g., Steagald v. United States, 451 U.S. 204, 221\\n\\n11 (1981). After O'Brien was arrested and seated on a couch in his living room, he was\\n\\n12 not surrounded by officers; only Alahverdian and Marino were there with him; the\\n\\n13 other officers were conducting a security sweep elsewhere in the apartment.\\n\\n14 Similarly, at the Suffolk County police precinct, the only officers in the interview\\n\\n15 room with O'Brien were Alahverdian and Marino. Further, O'Brien's own statements\\n\\n16 and explanations in the record in this case foreclose any suggestion that O'Brien was\\n\\n17 not fluent in the English language. And not only did the agents testify that they and\\n\\n18 O'Brien had no difficulty understanding each other; O'Brien--while saying that he\\n\\n\\n 41\\n\\f 1 remembered meeting Marino but not Alahverdian in the Apartment--testified that he\\n\\n 2 \\\"had no difficulty communicating with [Marino]\\\" (Aug. 22 Tr. 65).\\n\\n 3 Nor does the record indicate that either Alahverdian or Marino engaged\\n\\n 4 in any coercion or intimidation. Marino testified that they did not (see Aug. 22 Tr. 36);\\n\\n 5 they were in the Apartment for only some 20 minutes, part of that time being needed\\n\\n 6 to allow O'Brien to get dressed (see id. at 14). And O'Brien did not describe any\\n\\n 7 threatening or coercive statements or conduct by the officers.\\n\\n 8 The record also belies any notion that O'Brien felt intimidated. For\\n\\n 9 example, \\\"throughout the course of the day\\\" O'Brien sought to bargain with the\\n\\n10 agents by offering to provide information to assist their investigation if it might keep\\n\\n11 him out of jail (Aug. 22 Tr. 34). Marino described O'Brien as calm, lucid, and\\n\\n12 speaking freely (see, e.g., id. at 31-33, 34); Alahverdian described the conversation with\\n\\n13 O'Brien during the ride to the Suffolk County police precinct as \\\"pleasant\\\" (Aug. 13\\n\\n14 Tr. 29). And in O'Brien's own description to his ex-fiancée on October 16, 2013, of his\\n\\n15 October 10 consent to search the Apartment, he sounded anything but intimidated.\\n\\n16 He admitted telling her that when they asked if they could search, he said \\\"go ahead,\\\"\\n\\n17 \\\"take a look,\\\" \\\"feel free\\\" (Aug. 22 Tr. 69).\\n\\n\\n\\n\\n 42\\n\\f 1 Alahverdian also testified that in the Apartment, O'Brien thanked Marino\\n\\n 2 for granting his plea for a Valium; when they arrived at the precinct, O'Brien thanked\\n\\n 3 the agents for their considerate treatment in general. (Aug. 13 Tr. 18, 47, 21-22.) And\\n\\n 4 O'Brien himself testified that the agents had proceeded expeditiously on October 10\\n\\n 5 because \\\"they took it seriously that I needed medical attention.\\\" (Aug. 22 Tr. 57; see\\n\\n 6 also id. at 102 (Marino testifying that when they \\\"were concluding the interview\\\" at the\\n\\n 7 precinct, O'Brien \\\"said he wasn't feeling well and he wanted to see a doctor. The\\n\\n 8 interview stopped, I advised Suffolk County,\\\" and turned O'Brien over to the local\\n\\n 9 officers.).)\\n\\n10 O'Brien's contention that he was incapable of giving consent voluntarily\\n\\n11 because he was experiencing withdrawal from GHB is refuted by the record\\n\\n12 discussed in Part II.A.1. above, supporting the district court's permissible finding that\\n\\n13 O'Brien's cognitive and volitional functions were not impaired by his withdrawal\\n\\n14 from GHB.\\n\\n15 Finally, we reject O'Brien's additional suggestion that his ability to refuse\\n\\n16 consent was overborne by Marino's acceding to his request to alleviate the effects of\\n\\n17 GHB withdrawal by taking a Valium (see O'Brien brief on appeal at 43 (being \\\"given\\n\\n18 a Valium . . . could have only served to increase his impairment\\\"); see also id. at 38)).\\n\\n\\n 43\\n\\f 1 O'Brien points to no evidence to support this supposition. In contrast, the evidence\\n\\n 2 includes medical records showing that when O'Brien arrived at the hospital\\n\\n 3 complaining of GHB withdrawal, one of the medicines he was immediately given was\\n\\n 4 Valium. (See, e.g., Hospital Discharge Summary at 1 (when O'Brien arrived at the\\n\\n 5 hospital and \\\"stated that he was using GHB,\\\" had been \\\"taking GHB for the last few\\n\\n 6 years, every 2-3 hours[,] and presented with tachycardia, disphoresis, and\\n\\n 7 tremulousness,\\\" \\\"[h]e was given Valium 5 IV, Librium 50 p.o., and a bolus of normal\\n\\n 8 saline, to which he responded and a decision was made not to place him in the ICU\\n\\n 9 for further monitoring.\\\" (emphasis added)).\\n\\n10 In sum, we see no error of fact or law in the district court's denial of\\n\\n11 O'Brien's motion to suppress the evidence discovered in the searches to which he\\n\\n12 consented.\\n\\n\\n\\n\\n13 B. O'Brien's Insufficiency Argument\\n\\n14 The Controlled Substances Act (\\\"CSA\\\") provides, inter alia, that it is\\n\\n15 \\\"unlawful for any person knowingly or intentionally . . . to . . . possess with intent to\\n\\n16 . . . distribute . . . a controlled substance.\\\" 21 U.S.C. § 841(a)(1). It is also unlawful for\\n\\n17 any person \\\"knowingly or intentionally\\\" to \\\"import[] . . . a controlled substance\\\" into\\n\\n\\n 44\\n\\f 1 the United States. 21 U.S.C. §§ 960, 952. The indictment charged O'Brien with\\n\\n 2 violating these sections by knowingly importing and possessing with intent to\\n\\n 3 distribute methylone and anabolic steroids; with violating 21 U.S.C. §§ 963 and 846,\\n\\n 4 respectively, by conspiring to import and to possess with intent to distribute those\\n\\n 5 substances; and with violating 21 U.S.C. § 856 by knowingly and intentionally renting\\n\\n 6 and maintaining premises for the purpose of distributing methylone, a controlled\\n\\n 7 substance. O'Brien argues that he was entitled to acquittals on the ground that the\\n\\n 8 government did not prove that he knew methylone was a controlled substance. We\\n\\n 9 disagree.\\n\\n10 Knowledge that the commodity being imported or possessed for\\n\\n11 distribution was a controlled substance is an element of each of the above offenses;\\n\\n12 and in order to convict, the government must establish that knowledge beyond a\\n\\n13 reasonable doubt. See, e.g., United States v. Abdulle, 564 F.3d 119, 125 (2d Cir. 2009)\\n\\n14 (\\\"Abdulle\\\") (§§ 841(a)(1) and 846); United States v. Hassan, 578 F.3d 108, 121 (2d Cir.\\n\\n15 2008) (§§ 952 and 963); United States v. Hamilton, 334 F.3d 170, 180 (2d Cir. 2003)\\n\\n16 (\\\"Hamilton\\\") (§ 856), cert. denied, 540 U.S. 985 (2003). See also McFadden v. United States,\\n\\n17 135 S. Ct. 2298, 2304 (2015) (the CSA requires only that the defendant know that the\\n\\n18 substance he is dealing with is listed on the federal drug schedules, not that he know\\n\\n\\n 45\\n\\f 1 precisely what the substance is); Abdulle, 564 F.3d at 126 (\\\"A defendant may be\\n\\n 2 convicted of a violation of 21 U.S.C. § 846 without knowing the exact type of drug\\n\\n 3 involved. The government need only prove that the defendant was aware that some\\n\\n 4 controlled substance was involved.\\\" (internal quotation marks omitted)).\\n\\n 5 It is seldom possible to present direct evidence of a person's state of\\n\\n 6 mind. His knowledge may, however, be inferable from outward manifestations such\\n\\n 7 as his statements or his conduct, or from the circumstances surrounding or attendant\\n\\n 8 upon the fact he is alleged to have known. See, e.g., United States v. Nersesian, 824 F.2d\\n\\n 9 1294, 1314 (2d Cir. 1987). Efforts a defendant has made toward concealment, for\\n\\n10 example, of either the nature of an activity or his participation in it, may support an\\n\\n11 inference that he knew the activity was unlawful. See, e.g., Abdulle, 564 F.3d at 129 (\\\"a\\n\\n12 rational jury could have found that [the defendant in question] possessed and\\n\\n13 intended to deal in a controlled substance by inferring that he and the others\\n\\n14 expedited [its] importation . . . and concealed its contents in order to minimize the\\n\\n15 possibility that their illicit activities would be detected\\\").\\n\\n16 In challenging the sufficiency of the evidence to support his conviction,\\n\\n17 a defendant bears a heavy burden. See, e.g., United States v. Romano, 794 F.3d 317, 335\\n\\n18 (2d Cir. 2015); United States v. Leonard, 529 F.3d 83, 87 (2d Cir. 2008) (\\\"Leonard\\\"); United\\n\\n\\n 46\\n\\f 1 States v. Morgan, 385 F.3d 196, 204 (2d Cir. 2004); Hamilton, 334 F.3d at 179. In\\n\\n 2 assessing such a challenge, we are required to view all of the evidence--whether direct\\n\\n 3 or circumstantial--in the light most favorable to the government. See, e.g., Glasser v.\\n\\n 4 United States, 315 U.S. 60, 80 (1942), overruled on other grounds by Bourjaily v. United\\n\\n 5 States, 483 U.S. 171, 181 (1987); United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008)\\n\\n 6 (\\\"Eppolito\\\"), cert. denied, 555 U.S. 1148 (2009); Leonard, 529 F.3d at 87. We consider\\n\\n 7 items of evidence not in isolation but in conjunction, see, e.g., United States v. Autuori,\\n\\n 8 212 F.3d 105, 114 (2d Cir. 2000); United States v. Podlog, 35 F.3d 699, 705 (2d Cir. 1994),\\n\\n 9 cert. denied, 513 U.S. 1135 (1995); we defer to the jury's evident assessments of the\\n\\n10 credibility of the witnesses and its resolution of the weight of the evidence, see, e.g.,\\n\\n11 United States v. Coté, 544 F.3d 88, 99 (2d Cir. 2008) (\\\"giv[ing] full play to the right of the\\n\\n12 jury to determine credibility\\\"); United States v. Miller, 116 F.3d 641, 676 (2d Cir. 1997),\\n\\n13 cert. denied, 524 U.S. 905 (1998); United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998);\\n\\n14 we credit every inference that the jury could have drawn in the government's favor,\\n\\n15 see, e.g., Eppolito, 543 F.3d at 45; Leonard, 529 F.3d at 87; and we must affirm the\\n\\n16 conviction so long as, from the inferences reasonably drawn, the jury might fairly\\n\\n17 have concluded guilt beyond a reasonable doubt, see, e.g., Eppolito, 543 F.3d at 45-46;\\n\\n18 United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003).\\n\\n 47\\n\\f 1 In sum, the conviction must be upheld if \\\"any rational trier of fact could\\n\\n 2 have found the essential elements of the crime beyond a reasonable doubt.\\\" Jackson\\n\\n 3 v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). This standard,\\n\\n 4 reemphasized in the Supreme Court's recent opinions, makes \\\"clear\\\" that \\\"on direct\\n\\n 5 appeal, 'it is the responsibility of the jury--not the court--to decide what conclusions\\n\\n 6 should be drawn from evidence admitted at trial. A reviewing court may set aside\\n\\n 7 the jury's verdict on the ground of insufficient evidence only if no rational trier of fact\\n\\n 8 could have agreed with the jury.'\\\" Coleman v. Johnson, 566 U.S. 650, 651 (2012) (quoting\\n\\n 9 Cavazos v. Smith, 565 U.S. 1, 2 (2011)).\\n\\n10 The jury in this case was properly instructed that in order to convict\\n\\n11 O'Brien on any of the counts against him, it was required to find that he knew the\\n\\n12 products he was importing and possessing with intent to distribute were controlled\\n\\n13 substances. There was no question that O'Brien knew that the substances he was\\n\\n14 importing were methylone and anabolic steroids. He admitted to Alahverdian and\\n\\n15 Marino that he ordered methylone and anabolic steroids online from sellers he knew\\n\\n16 were in China. And, as described in Part I.A. above, the search of O'Brien's College\\n\\n17 Point Apartment turned up dozens of airway bills for packages mailed from China.\\n\\n18 Contrary to O'Brien's repeated statement in his pro se opening to the jury that he had\\n\\n\\n 48\\n\\f 1 \\\"nothing to hide,\\\" the many steps he took to conceal the contents of those packages\\n\\n 2 and his connection to them provided fertile ground for the inference that he knew\\n\\n 3 that dealing in those substances was unlawful.\\n\\n 4 First, rather than going through traditional banking channels, O'Brien\\n\\n 5 paid for his orders of these substances using bitcoins and multiple money remitter\\n\\n 6 services. This enabled him to, inter alia, make his purchases without using his own\\n\\n 7 name. (See generally Trial Transcript (\\\"Trial Tr.\\\") at 117, 280-82, 288-90.)\\n\\n 8 Second, O'Brien never had his purchases of methylone and anabolic\\n\\n 9 steroids addressed to himself or sent to his apartments. He hired people to rent mail\\n\\n10 boxes in their own names--or in false names--at mailbox stores throughout Brooklyn.\\n\\n11 As described in Part I.A. above, the items found in the search of O'Brien's College\\n\\n12 Point Apartment included not only applications and receipts for mailbox rental\\n\\n13 agreements at multiple mailbox store locations (see Trial Tr. 214), but also a cache of\\n\\n14 false identification cards, along with blank ID cards and a printer that could create\\n\\n15 more. O'Brien had the packages of methylone and anabolic steroids he ordered from\\n\\n16 China addressed to the persons who rented the mailboxes and sent to the various\\n\\n17 mailbox store locations. When the packages arrived, O'Brien had the persons he had\\n\\n18 hired retrieve them. For example, he told the agents on October 10 that he had had\\n\\n\\n 49\\n\\f 1 his friend Michael Wagner rent a mailbox in Wagner's name, and he paid Wagner\\n\\n 2 $200 each time he picked up a box of Molly from a mailbox store and brought it to\\n\\n 3 O'Brien. (See Trial Tr. 117.)\\n\\n 4 In addition, the packages containing O'Brien's purchases were\\n\\n 5 themselves fraudulently labeled. The intercepted packages that led to O'Brien's\\n\\n 6 eventual arrest on the present charges bore labels that misrepresented their contents\\n\\n 7 as various uncontrolled substances, when in fact they contained methylone and\\n\\n 8 anabolic steroids that O'Brien had ordered.\\n\\n 9 Lastly, after the drugs ordered from China arrived and had been picked\\n\\n10 up by O'Brien's retrievers and given to O'Brien, O'Brien stored them in Apartment 5E\\n\\n11 on 41st Road--identified in his Written Consent To Search as one of \\\"my\\n\\n12 apartment[s].\\\" To rent that apartment O'Brien had used the alias \\\"George Manolas.\\\"\\n\\n13 In the district court, O'Brien moved for acquittal under Fed. R. Crim. P.\\n\\n14 29 on the principal ground that the government had failed to establish that he was the\\n\\n15 lessor of the 41st Road apartment in the name George Manolas. The district court\\n\\n16 denied that motion. See United States v. O'Brien, No. 13-CR-586 (RRM), 2017 WL\\n\\n17 2371159 (E.D.N.Y. May 31, 2017) (\\\"Rule 29 Decision\\\"). O'Brien has not challenged that\\n\\n18 decision on appeal, and any further argument that \\\"George Manolas\\\" was not one of\\n\\n\\n 50\\n\\f 1 O'Brien's aliases has been waived.\\n\\n 2 In any event, the government's contention that the \\\"George Manolas\\\"\\n\\n 3 who leased the apartment at 41st Road was O'Brien was amply supported by several\\n\\n 4 categories of circumstantial evidence, including (a) trial testimony of Alahverdian\\n\\n 5 and/or Marino that O'Brien admitted that the 41st Road apartment was his stash\\n\\n 6 house, supplied the exact number of the apartment (5-E) when Marino said the agents\\n\\n 7 knew it was on the fourth or fifth floor, and reasonably accurately described what the\\n\\n 8 agents would find inside that apartment, see Rule 29 Decision, 2017 WL 2371159,\\n\\n 9 at *10 (citing Trial Tr. 119-25, 683); (b) recordings of two telephone calls by O'Brien in\\n\\n10 October 2013 from the county jail to his then-girlfriend, instructing her to open the\\n\\n11 mail at his College Point Apartment addressed to George Manolas, see Rule 29\\n\\n12 Decision, 2017 WL 2371159, at *11 (citing Trial Tr. 250, 253); and (c) testimony by\\n\\n13 Schottenfeld describing the batches of false identification documents found in the\\n\\n14 search of the College Point Apartment, including birth certificates, social security\\n\\n15 cards, and police identification cards in names other than O'Brien's, including the\\n\\n16 names Jeremy Soto, Stephen Conte, and George Manolas, with some of the Conte and\\n\\n17 Soto identification documents bearing photographs of O'Brien (see Trial Tr. 193-99).\\n\\n\\n\\n\\n 51\\n\\f 1 In sum, O'Brien contrived to order and pay for methylone and anabolic\\n\\n 2 steroids without using his real name; to have the drug packages labeled as containing\\n\\n 3 uncontrolled substances; to have the packages addressed to persons other than\\n\\n 4 himself, sent to addresses other than his, and retrieved by other persons without\\n\\n 5 mention of his name; and to have the drugs warehoused in a place he leased under\\n\\n 6 an alias. Such precautions lent themselves easily to a rational inference that O'Brien\\n\\n 7 was aware that the drugs in which he dealt were controlled substances.\\n\\n 8 Finally, O'Brien also explicitly evinced his wariness of the law\\n\\n 9 enforcement tactic of apprehending drug traffickers by subjecting intercepted\\n\\n10 suspicious packages to controlled deliveries. In an O'Brien message that was read to\\n\\n11 the jury--apparently an email to a supplier, saying \\\"'65k is a very appealing offer.\\n\\n12 Okay,'\\\"--O'Brien indicated that his staff had previously been caught in such a\\n\\n13 maneuver, saying:\\n\\n14 \\\"Here is the problem with why i am so nervous about the current\\n15 shipment--keep in mind i am very experienced... [T]his tracking\\n16 number . . . says they made an attempt to deliver. [T]hat is\\n17 IMPOSSIBLE. [I]t is a mailbox rental store and there is ALWAYS\\n18 a person there to receive parcels--it's simply what they are in\\n19 business to do... [T]hey rent mailboxes. [N]ot to mention that I\\n20 receive parcels there every week from China with no\\n21 problems. . . . [I]n my unfortunate experience in the past, along with\\n22 the other wholesalers I know, this is a trap. I send my worker in to\\n23 sign for the package and they arrest them on the spot.\\\"\\n\\n 52\\n\\f 1 (Trial Tr. 291-92 (quoting Government Exh. 413) (emphases ours).)\\n\\n 2 We conclude that the evidence as a whole was ample for the jury to infer\\n\\n 3 that O'Brien knew that the substances in which he knowingly dealt, methylone and\\n\\n 4 anabolic steroids, were in fact controlled substances.\\n\\n\\n\\n\\n 5 C. O'Brien's Challenges to the Scheduling of Methylone as a Controlled Substance\\n\\n 6 Finally, O'Brien contends that the district court erred in denying his\\n\\n 7 posttrial motion for acquittal on the ground that the indictment charging him with\\n\\n 8 unlawful conduct with respect to methylone was constitutionally flawed because the\\n\\n 9 scheduling of methylone as a controlled substance was accomplished through (a) an\\n\\n10 impermissible delegation of congressional power to the United States Attorney\\n\\n11 General, and (b) the Attorney General's subdelegation of that power to the DEA. He\\n\\n12 also argues that the scheduling process was insufficient to afford him the notice\\n\\n13 mandated by principles of due process. We reject these contentions because such\\n\\n14 challenges were required to be made prior to trial and because, in any event, they lack\\n\\n15 merit.\\n\\n\\n\\n\\n 53\\n\\f 1 1. Untimeliness\\n\\n 2 The Federal Rules of Criminal Procedure provide that certain types of\\n\\n 3 objections to a prosecution \\\"must be raised by pretrial motion if the basis for the\\n\\n 4 motion is then reasonably available and the motion can be determined without a trial\\n\\n 5 on the merits.\\\" Fed. R. Crim. P. 12(b)(3) (2014). This requirement serves a number of\\n\\n 6 purposes, including sparing the court, the witnesses, and the parties \\\"the burden and\\n\\n 7 expense of a trial,\\\" Davis v. United States, 411 U.S. 233, 241 (1973) (discussing 1944\\n\\n 8 version of Rule 12), and \\\"insuring that indictments are not routinely challenged (and\\n\\n 9 dismissed) after the jury has been seated and sworn, a result that would . . . force\\n\\n10 courts frequently to confront complex Double Jeopardy questions,\\\" United States v.\\n\\n11 Spero, 331 F.3d 57, 62 (2d Cir. 2003) (discussing 2002 version of Rule 12) (internal\\n\\n12 quotation marks omitted).\\n\\n13 The categories of motions that must be made before trial are those that\\n\\n14 assert \\\"a defect in instituting the prosecution,\\\" Fed. R. Crim. P. 12(b)(3)(A) (2014), or\\n\\n15 assert \\\"a defect in the indictment,\\\" id. Rule 12(b)(3)(B). As amended in 2014, Rule\\n\\n16 12(b)(3) provides \\\"a nonexclusive list of commonly raised claims under each\\n\\n17 category.\\\" Advisory Committee Note (2014) (\\\"2014 Advisory Note\\\"). The examples\\n\\n18 include \\\"an error in the grand-jury proceeding,\\\" Rule 12(b)(3)(A)(v), and the\\n\\n\\n 54\\n\\f 1 indictment's \\\"failure to state an offense,\\\" id. Rule 12(b)(3)(B)(v). See also 2014 Advisory\\n\\n 2 Note (noting that prior language allowing a motion to dismiss for failure to state an\\n\\n 3 offense to be made at any time, on the theory that that failure was \\\"jurisdictional,\\\" was\\n\\n 4 removed in light of the Supreme Court's decision in United States v. Cotton, 535 U.S.\\n\\n 5 625, 629-31 (2002), that such a flaw does not implicate the court's jurisdiction).\\n\\n 6 If a motion falling within Rule 12(b)(3) is not made before trial (or before\\n\\n 7 such pretrial deadline as may be set by the court for such motions), it is \\\"untimely.\\\"\\n\\n 8 Fed. R. Crim. P. 12(c)(3) (2014). If the motion is untimely, the court may nonetheless\\n\\n 9 entertain it if the movant shows \\\"good cause\\\" for his failure to make it prior to the\\n\\n10 deadline. Id. Such provisions, albeit with slight variations in wording and\\n\\n11 numbering, have been included in Rule 12 since its inception in 1944. See, e.g., Davis,\\n\\n12 411 U.S. at 236 (discussing the original version of Rule 12, which stated in pertinent\\n\\n13 part, that \\\"'[d]efenses and objections based on defects in the institution of the\\n\\n14 prosecution or in the indictment . . . may be raised only by motion before trial,' and\\n\\n15 that failure to present such defenses or objections 'constitutes a waiver thereof, but\\n\\n16 the court for cause shown may grant relief from the waiver'\\\" (quoting Fed. R. Crim.\\n\\n17 P. 12(b)(2) (1944)); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 362 (1963)\\n\\n18 (\\\"Shotwell\\\") (same).\\n\\n\\n 55\\n\\f 1 Both Davis and Shotwell dealt with posttrial claims that the prosecutions\\n\\n 2 had been defectively instituted because their respective grand juries had been\\n\\n 3 convened pursuant to selection methods not designed to draw from a cross-section\\n\\n 4 of the community. See, e.g., Davis, 411 U.S. at 235; Shotwell, 371 U.S. at 460-61. In both\\n\\n 5 cases, the Supreme Court concluded that the Rule 12 waiver provision \\\"precludes\\n\\n 6 untimely challenges to grand jury arrays, even when such challenges are on\\n\\n 7 constitutional grounds.\\\" Davis, 411 U.S. at 238 (citing Shotwell, 371 U.S. at 363).\\n\\n 8 In Shotwell, the Court upheld findings that no \\\"cause\\\" sufficient to\\n\\n 9 \\\"warrant relief from\\\" Rule 12's waiver provision was shown where \\\"the facts\\n\\n10 [underlying the challenge] were notorious and available to petitioners in the exercise\\n\\n11 of due diligence before the trial.\\\" 371 U.S. at 363. In Davis, the Court similarly upheld\\n\\n12 the finding of no \\\"cause\\\" where the belatedly challenged system had been in use \\\"for\\n\\n13 years,\\\" and \\\"[n]o reason ha[d] been suggested why petitioner or his attorney could\\n\\n14 not have ascertained all of the facts necessary to present objection to the court prior\\n\\n15 to trial.\\\" 411 U.S. at 243.\\n\\n16 We reach the same conclusions with respect to O'Brien's impermissible-\\n\\n17 delegation challenge, given the fundamental nature of the asserted defects. The\\n\\n18 contention that a federal grand jury was chosen through a process that was not\\n\\n\\n 56\\n\\f 1 designed to draw from a cross-section of the community is a contention that the\\n\\n 2 ensuing indictments were issued by an entity that was not constitutionally authorized\\n\\n 3 to accuse any person of any crime; such a contention posits a defect in the institution\\n\\n 4 of the prosecution. Likewise, a challenge to Congress's delegation to members of the\\n\\n 5 Executive Branch of authorization to designate substances as controlled substances\\n\\n 6 posits that the targeted conduct has been designated a crime by an entity not\\n\\n 7 constitutionally authorized to say that any person may be prosecuted for that\\n\\n 8 conduct. A prosecution for conduct that has been defined as criminal only by an\\n\\n 9 entity without legitimate authorization to do so would be defective either in its\\n\\n10 institution or in its failure to charge a cognizable offense. If a defendant wishes to\\n\\n11 assert such a flaw, he must make his motion prior to trial if the basis for his assertion\\n\\n12 is then reasonably available.\\n\\n13 In the present case, O'Brien's trial began on July 20, 2015. His claim that\\n\\n14 methylone had been unconstitutionally designated a controlled substance was not\\n\\n15 asserted prior to trial; it was not raised until November 2016, more than a year after\\n\\n16 he had been tried and found guilty of the charges against him. It is clear that the facts\\n\\n17 on which his motion was premised had been available to him throughout his pretrial\\n\\n18 period. As to the delegation process itself, the CSA, in which Congress authorized\\n\\n\\n 57\\n\\f 1 the Attorney General to, inter alia, add substances to controlled substance schedules\\n\\n 2 under 21 U.S.C. § 811(a), was enacted in 1970, see Pub. L. 91-513, 84 Stat. 1242\\n\\n 3 (codified at 21 U.S.C. § 801 et seq.). The Attorney General's regulations delegating\\n\\n 4 authority to the DEA to schedule controlled substances on a temporary basis were\\n\\n 5 promulgated in 1990. See 28 C.F.R. § 0.100(b) (1990). And the particulars of the\\n\\n 6 delegation process were described in detail by the Supreme Court in 1991 in Touby\\n\\n 7 v. United States, 500 U.S. 160, 162 (1991), which rejected an impermissible-delegation\\n\\n 8 challenge to convictions for manufacture and conspiracy to manufacture\\n\\n 9 4-methylaminorex, more commonly known as \\\"Euphoria.\\\"\\n\\n10 The designation of methylone as a controlled substance occurred well\\n\\n11 before O'Brien's October 29, 2013 arrest in this case. Notice of Intent to designate\\n\\n12 methylone as such a substance temporarily was published in the Federal Register on\\n\\n13 September 8, 2011, see 76 Fed. Reg. 55616; Notice of Proposed Rulemaking to make\\n\\n14 its placement in Schedule I permanent was published in the Federal Register on\\n\\n15 October 17, 2012, see 77 Fed. Reg. 63766; and the permanent scheduling of methylone\\n\\n16 was published in the Federal Register on April 12, 2013, see 78 Fed. Reg. 21818.\\n\\n17 O'Brien was thus arrested on the present charges of unlawfully dealing\\n\\n18 in methylone more than six months after the publication of notice that methylone was\\n\\n\\n 58\\n\\f 1 permanently scheduled as a controlled substance, and more than two years after\\n\\n 2 publication of its temporary designation as a controlled substance. Thus, the\\n\\n 3 components of O'Brien's impermissible-delegation challenge were available to\\n\\n 4 O'Brien prior to his July 2015 trial. They were matters of public record.\\n\\n 5 The only excuse offered by O'Brien for the failure to make his delegation\\n\\n 6 challenge prior to trial was that he was proceeding pro se, stating that \\\"it's a lot for a\\n\\n 7 regular defendant to know and to learn\\\" (Sentencing Transcript January 20, 2017,\\n\\n 8 at 17). This explanation was specious at best. Even assuming that a defendant's pro\\n\\n 9 se status could be accepted as \\\"good cause\\\" for his failure to make a timely challenge\\n\\n10 to long-established procedures, that excuse would have no validity in this case.\\n\\n11 O'Brien's citation of his pro se status ignored the fact that he did not become pro se\\n\\n12 until about two months before his trial; for the preceding 19 months of the\\n\\n13 prosecution, O'Brien had been represented by counsel. There had been ample\\n\\n14 opportunity and expertise to allow for the making of an impermissible-delegation\\n\\n15 challenge prior to trial, if one had been warranted.\\n\\n\\n\\n\\n16 2. Lack of Merit\\n\\n17 In Touby, the Supreme Court considered contentions that Congress, in\\n\\n\\n 59\\n\\f 1 authorizing the Attorney General to add, remove, and transfer substances across the\\n\\n 2 controlled substance schedules under 21 U.S.C. § 811(a), \\\"unconstitutionally\\n\\n 3 delegate[d] legislative power to the Attorney General,\\\" 500 U.S. at 162, as well as\\n\\n 4 contentions that the Attorney General could not permissibly subdelegate that\\n\\n 5 authority to the DEA, see id. at 169. The Court rejected those contentions in the\\n\\n 6 context of the scheduling of 4-methylaminorex. See id. at 165-69. We see no\\n\\n 7 principled basis on which to reach a different conclusion with respect to O'Brien's\\n\\n 8 parallel challenges to the scheduling of methylone. Whether timely or not, those\\n\\n 9 challenges lacked merit.\\n\\n10 O'Brien also contends that publication of the intended and actual\\n\\n11 scheduling of methylone as a controlled substance in the Federal Register was\\n\\n12 insufficient to provide notice that dealing in methylone was unlawful. However,\\n\\n13 Congress requires that \\\"documents having general applicability and legal effect\\\"--\\n\\n14 which includes \\\"every document or order which prescribes a penalty\\\"--\\\"shall be\\n\\n15 published in the Federal Register,\\\" 44 U.S.C. § 1505(a); and it has provided that\\n\\n16 proper publication of a document in the Federal Register \\\"is sufficient to give notice\\n\\n17 of the contents of the document to a person subject to or affected by it,\\\" id. § 1507.\\n\\n18 Accordingly, when \\\"regulations, which are given the force of law, are published in\\n\\n\\n 60\\n\\f 1 the Federal Register, . . . constructive notice of their contents is thus given all persons\\n\\n 2 affected by them.\\\" Yakus v. United States, 321 U.S. 414, 435 (1944); see, e.g., United States\\n\\n 3 v. Kelly, 874 F.3d 1037, 1048 (9th Cir. 2017) (after making the requisite findings, the\\n\\n 4 DEA temporarily scheduled ethylone, and \\\"[w]hen the DEA filed the Notice and\\n\\n 5 Order in the Federal Register, Kelly received fair notice that ethylone was a controlled\\n\\n 6 substance\\\" (internal quotation marks omitted), cert. denied, 138 S. Ct. 2038 (2018)).\\n\\n 7 As set out above, the intended and actual scheduling of methylone as a\\n\\n 8 controlled substance were published in the Federal Register. We thus reject O'Brien's\\n\\n 9 lack-of-notice argument.\\n\\n10 We note also that, as discussed in Part II.B. above, the statutory\\n\\n11 provisions under which O'Brien was prosecuted made his conduct unlawful only if\\n\\n12 he \\\"knew\\\" he was dealing with a controlled substance. There is no dispute that\\n\\n13 O'Brien knew that he was dealing in methylone; and, as discussed, the properly\\n\\n14 instructed jury found beyond a reasonable doubt, based on ample evidence, that\\n\\n15 O'Brien knew methylone was a controlled substance.\\n\\n\\n\\n\\n 61\\n\\f1 CONCLUSION\\n\\n\\n\\n\\n2 We have considered all of O'Brien's contentions on this appeal and have\\n\\n3 found them to be without merit. The judgment of the district court is affirmed.\\n\\n\\n\\n\\n 62\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4404556/\", \"author_raw\": \"KEARSE, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KEARSE"},"judge2":{"kind":"string","value":"LIVINGSTON"},"judge3":{"kind":"string","value":"CARNEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4627303/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Michael O'BRIEN, AKA Jeremy Soto, AKA Stephen Conte, AKA George Manolas, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-06-07\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-2087-cr\n USA v. O'Brien\n\n\n\n 1 UNITED STATES COURT OF APPEALS\n\n 2 FOR THE SECOND CIRCUIT\n\n 3 ------\n\n 4 August Term, 2018\n\n 5 (Argued: November 28, 2018 Decided: June 7, 2019)\n\n 6 Docket No. 17-2087-cr\n\n 7 _________________________________________________________\n\n 8 UNITED STATES OF AMERICA,\n\n 9 Appellee,\n\n10 - v. -\n\n11 MICHAEL O'BRIEN, AKA Jeremy Soto, AKA Stephen Conte, AKA\n12 George Manolas,\n\n13 Defendant-Appellant.*\n14 _________________________________________________________\n\n15 Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.\n\n16 Appeal from a judgment of the United States District Court for the\n\n\n\n * The Clerk of Court is directed to amend the official caption to conform with\n the above.\n\f 1 Eastern District of New York, Roslynn R. Mauskopf, Judge, convicting defendant of\n\n 2 importing and possessing with intent to distribute methylone and anabolic steroids,\n\n 3 see 21 U.S.C. §§ 952(b), 960(b)(3), 960(b)(5), 841(a)(1), 841(b)(1)(C), and 841(b)(1)(E),\n\n 4 and conspiring to do so, see id. §§ 963 and 846; and of operating a stash house, see id.\n\n 5 §§ 841(a)(1), 856(a)(1) and 856(b). On appeal, defendant principally challenges (a) the\n\n 6 denial of his pretrial motion to suppress evidence on the ground that any statements\n\n 7 or consent were unknowing and involuntary because he was incapacitated by being\n\n 8 in withdrawal from an addictive substance, and (b) the sufficiency of the trial\n\n 9 evidence to establish that he knew what he was dealing with was a controlled\n\n10 substance. He also challenges the denial of his posttrial motion to dismiss the\n\n11 indictment on the grounds that methylone was designated a controlled substance\n\n12 pursuant to an unconstitutional delegation of Congressional power to the United\n\n13 States Attorney General, and that the designation process--publication in the Federal\n\n14 Register--did not constitute notice sufficient to afford due process. We find no merit\n\n15 in his contentions.\n\n16 Affirmed.\n\n17 MARGARET LEE, Assistant United States Attorney,\n18 Brooklyn, New York (Richard P. Donoghue, United\n19 States Attorney for the Eastern District of New York,\n20 Amy Busa, Assistant United States Attorney,\n21 Brooklyn, New York, on the brief), for Appellee.\n\n 2\n\f 1 SUSAN G. KELLMAN, Brooklyn, New York (Sarah\n 2 Kunstler, Offices of Susan G. Kellman, Brooklyn,\n 3 New York, on the brief), for Defendant-Appellant.\n\n\n\n\n 4 KEARSE, Circuit Judge:\n\n 5 Defendant Michael O'Brien appeals from a judgment entered in the\n\n 6 United States District Court for the Eastern District of New York following a jury trial\n\n 7 before Roslynn R. Mauskopf, Judge, convicting him of five drug trafficking offenses,\n\n 8 to wit, importing methylone and anabolic steroids, and conspiring to do so, in\n\n 9 violation of 21 U.S.C. §§ 952(b), 960(b)(3), 960(b)(5), and 963 (Counts Two and One);\n\n10 possessing with intent to distribute those substances, and conspiring to do so, in\n\n11 violation of id. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(E), and 846 (Counts Four and\n\n12 Three); and operating a stash house, in violation of id. §§ 841(a)(1), 856(a)(1), and\n\n13 856(b) (Count Five); and sentencing him principally to 144 months' imprisonment, to\n\n14 be followed by a five-year term of supervised release. On appeal, O'Brien contends\n\n15 principally (a) that the district court erred in denying his pretrial motion to suppress,\n\n16 on Fourth and Fifth Amendment grounds, his postarrest statements and evidence\n\n17 seized from his apartments, arguing that his statements and any consents to search\n\n\n\n 3\n\f 1 were unknowing and involuntary because he was incapacitated by his addiction to\n\n 2 and withdrawal from a human growth hormone called Gamma-Hydroxybutyrate\n\n 3 (\"GHB\"); and (b) that the evidence at trial was insufficient to establish that he knew\n\n 4 the substances he was importing and possessing for distribution were controlled\n\n 5 substances. He also contends that the designation of methylone as a controlled\n\n 6 substance, making trafficking in that substance unlawful, was implemented through\n\n 7 an unconstitutional delegation of Congress's legislative power to the United States\n\n 8 Attorney General, and that the designation process--publication in the Federal\n\n 9 Register--did not constitute notice sufficient to afford due process. Finding no merit\n\n10 in his contentions, we affirm the judgment.\n\n\n\n\n11 I. BACKGROUND\n\n\n\n\n12 The present prosecution had its origin in seizures on September 20, 2013,\n\n13 by United States Customs and Border Protection (\"CBP\") officers, of three packages\n\n14 at the mail facility of John F. Kennedy International Airport, each addressed to a\n\n15 different person--none of them O'Brien--at the locations of different mailbox stores\n\n16 in Brooklyn, New York. Each package was field-tested and found to contain\n\n\n 4\n\f 1 approximately one kilogram of methylone (commonly referred to as \"Molly\"). CBP\n\n 2 informed agents of Homeland Security Investigation (\"HSI\"), who took possession of\n\n 3 the packages.\n\n 4 HSI agents replaced the methylone in each intercepted package with a\n\n 5 sham substance, and they conducted controlled deliveries on September 23. One of\n\n 6 the addressees, Kimberly Ruud, arrived at the mailbox store to which a seized\n\n 7 package had been sent to a different addressee; she picked up that package, along\n\n 8 with a nonintercepted package that was addressed to her, and began to drive away.\n\n 9 Ruud was stopped and arrested. She consented to a search of her car. In addition to\n\n10 the two packages she had just collected, which were in the car's passenger area,\n\n11 agents found, inter alia, four packages in the trunk and two cellphones. Although the\n\n12 labels on the packages identified their respective contents as various uncontrolled\n\n13 substances, the six packages contained a total of nearly three kilograms of methylone\n\n14 and nearly three kilograms of anabolic steroids. An ensuing search of Ruud's\n\n15 cellphones revealed a series of communications on September 23 with a contact listed\n\n16 as \"Big,\" who was eventually identified as O'Brien.\n\n\n\n\n 5\n\f 1 A. The October 10, 2013 Arrest of O'Brien\n\n 2 On October 10, 2013, pursuant to a 2011 New York State bench warrant\n\n 3 issued by the Suffolk County Superior Court (\"county court\") for the arrest of O'Brien\n\n 4 on a firearms charge on which he had pleaded guilty but had become a fugitive,\n\n 5 O'Brien was arrested by members of a state-and-federal task force that included HSI\n\n 6 Special Agent Vincent Marino and Special Agent Edward Alahverdian of the United\n\n 7 States Drug Enforcement Administration (\"DEA\"). The arrest warrant was executed\n\n 8 at O'Brien's apartment on College Point Boulevard in Queens, New York (the \"College\n\n 9 Point Apartment\" or \"Apartment\").\n\n10 As set out in greater detail in Part I.B. below, after O'Brien was arrested\n\n11 and handcuffed, he was given Miranda warnings by Alahverdian. O'Brien said that\n\n12 he understood his rights and was willing to answer some questions; and when\n\n13 Alahverdian asked whether the agents could search the apartment, O'Brien said they\n\n14 could look anywhere they wanted. Searching the Apartment pursuant to that\n\n15 consent, the agents found, inter alia, several kinds of drug paraphernalia, including\n\n16 lists of anabolic steroid chemicals; vials of a liquid labeled \"Genzyme\" (a steroid brand\n\n17 name) and hundreds of sheets of additional \"Genzyme\" labels; currency-counting\n\n18 machines and more than $10,000 in cash; 18 cellphones and 12 laptop computers;\n\n\n 6\n\f 1 identification documents in various names, along with blank identification cards and\n\n 2 an identification-card printer; applications and receipts for mailbox rentals at mailbox\n\n 3 stores throughout Brooklyn; 27 airway bills for packages mailed from China; and a\n\n 4 ledger with annotated lists of anabolic steroids, locations, and phone numbers for\n\n 5 pick-up.\n\n 6 In the meantime, O'Brien was driven to a police precinct in Suffolk\n\n 7 County by Alahverdian, Marino, and a Suffolk County police officer. During the\n\n 8 drive, O'Brien was talkative, stating that he made purchases of methylone and\n\n 9 anabolic steroids from China online (describing the brand and color of the computer\n\n10 he used for that operation), and explaining that he had people in the United States\n\n11 rent local mailboxes and collect the packages he was importing.\n\n12 After their arrival at the precinct, Alahverdian and Marino formally\n\n13 interviewed O'Brien. Marino stated that the agents knew O'Brien had a \"stash house\"\n\n14 in an apartment at 132-35 41st Road in Queens (\"41st Road\"), and asked for his\n\n15 consent to search it. After Marino read a Department of Homeland Security, U.S.\n\n16 Immigration and Customs Enforcement (\"DHS/ICE\") consent form aloud and gave\n\n17 it to O'Brien to read, O'Brien signed it. The form signed by O'Brien states as follows:\n\n18\n\n\n 7\n\f 1 I, Michael O'Brien, have been informed by U.S. Immigration and Customs\n 2 Enforcement (ICE) Special Agent Vincent Marino of my right to refuse to consent to\n 3 a search of my property, described as: . . .\n\n 4 Computer, phones\n 5 132-35 41st Rd Apt 5E\n 6 40-22 College Pt. Blvd 3PHR\n\n 7 I have also been advised by ICE Special Agent Marino that,\n 8 if I voluntarily consent to a search of this property, anything\n 9 discovered during this search may be used against me in criminal,\n10 civil, or administrative proceedings.\n\n11 I have decided to allow ICE Special Agents Vincent Marino\n12 and Homeland Security Special Agents . . . to conduct a complete\n13 search of my apartments, located at 40-22 College Point Blvd\n14 PH3R / 132-35 41st Road, Queens Apt 5E. These ICE Special\n15 Agents are authorized by me to take any letters, papers, materials\n16 or other property which they may desire to examine.\n\n17 I hereby voluntarily and intentionally consent to allow ICE\n18 to search my property. My consent is freely given and not the\n19 result of any promises, threats, coercion or other intimidation. I\n20 have read the above statement and understand my rights.\n\n21 (Consent To Search dated October 10, 2013 (O'Brien's \"Written Consent To Search\"\n\n22 (bolding in original)), attached to Affidavit of Michael O'Brien dated April 30, 2019\n\n23 [sic] (\"O'Brien Suppression Motion Aff.\"), in support of motion to suppress.)\n\n24 Based on this written consent, law enforcement agents searched the 41st\n\n25 Road apartment and found, inter alia, numerous pills, powders, and jugs of liquid,\n\n\n\n 8\n\f 1 and approximately 11 kilograms of methylone. In addition, pursuant to a search\n\n 2 warrant, HSI Special Agent Joshua Schottenfeld, who had participated in the search\n\n 3 of the College Point Apartment, searched the computer that O'Brien told Alahverdian\n\n 4 and Marino he used to order methylone and anabolic steroids from China. That\n\n 5 computer contained receipts and a web browser history of orders from a website\n\n 6 offering legal and illegal items, including narcotics.\n\n 7 After O'Brien signed the written consent form at the police precinct, he\n\n 8 was taken to the county court pursuant to the bench warrant issued for his arrest as\n\n 9 a fugitive. In that court proceeding, the prosecutor asked that bail be denied, noting\n\n10 that O'Brien apparently had access to large amounts of cash, as the search of his\n\n11 apartment at the time of his arrest found \"lots of pills\" and \"kilos of cocaine\" (People\n\n12 v. O'Brien, No. 2456-2009, Superior Court of the State of New York, County of Suffolk,\n\n13 October 10, 2013 (\"County Court Transcript\"), at 2-3). The court noted that it had\n\n14 issued the bench warrant for O'Brien's arrest in May 2011 and that O'Brien had\n\n15 remained a fugitive for more than two years, and it ruled that bail would thus be\n\n16 denied.\n\n17 O'Brien's attorney then informed the court that O'Brien needed medical\n\n18 attention because he was addicted to GHB. O'Brien himself stated that the full name\n\n\n 9\n\f 1 of GHB was Gamma-Hydroxybutyrate and explained its nature and effects. The\n\n 2 proceeding ended with the court's scheduling O'Brien's next appearance.\n\n 3 Following that county court proceeding, O'Brien was admitted to a\n\n 4 nearby medical center, where he remained for five days, prior to being sent to the\n\n 5 Suffolk County Jail. Some days thereafter, he was released on bail.\n\n 6 On October 29, 2013, O'Brien was charged in a one-count federal criminal\n\n 7 complaint with conspiracy to import methylone and was arrested by federal\n\n 8 authorities. He was indicted in November on the present five narcotics trafficking\n\n 9 counts.\n\n\n\n\n10 B. The Suppression Motion\n\n11 In April 2014, O'Brien moved to suppress his October 10, 2013 postarrest\n\n12 statements and the items seized in the searches of his apartments. His supporting\n\n13 affidavit stated, inter alia, that when he was arrested on October 10, he was under the\n\n14 influence of GHB and was addicted to it; that he had so advised the arresting agents;\n\n15 and that he repeatedly told them that if he was not promptly taken to a medical\n\n16 facility he was in danger of detoxification death. (See O'Brien Aff. ¶ 3.) O'Brien stated\n\n17 that he did not remember receiving Miranda warnings on October 10, and that no one\n\n\n 10\n\f 1 read those rights to him that day (see id. ¶ 10); that he \"ha[d] no recollection of giving\n\n 2 [his] consent to law enforcement to search\" the College Point Apartment or the 41st\n\n 3 Road apartment (id. ¶ 6; see id. ¶ 5); and that because he was in withdrawal from GHB\n\n 4 at the time of his arrest, he lacked the capacity to waive his Miranda rights or to\n\n 5 consent to searches (see id. ¶ 10). He stated that the signature on the Written Consent\n\n 6 To Search form was not his. (See id. ¶ 6.)\n\n 7 The district court conducted a hearing on O'Brien's suppression motion\n\n 8 on August 13 and 22, 2014. The government called as witnesses Alahverdian and\n\n 9 Schottenfeld; O'Brien testified and called Marino as a witness.\n\n\n\n\n10 1. The Testimony of Alahverdian\n\n11 Alahverdian testified that when he first saw O'Brien on October 10, 2013,\n\n12 O'Brien had already been arrested and was in handcuffs, sitting on a couch in his\n\n13 living room. Also in the living room was Marino. Alahverdian approached and\n\n14 introduced himself to O'Brien, who seemed eager to talk to the two agents.\n\n15 Alahverdian said O'Brien would \"have to wait\" until he received Miranda warnings\n\n16 and would have to deal with the local authorities about the state warrant on which\n\n17 he had just been arrested. (Hearing Transcript, August 13, 2014 (\"Aug. 13 Tr.\"),\n\n\n 11\n\f 1 at 11-12; see also id. at 14 (Alahverdian told O'Brien \"we just have to get through this\n\n 2 and then I'm willing to listen to anything you have to say\").)\n\n 3 Alahverdian, with Marino present, read the Miranda warnings aloud and\n\n 4 asked whether O'Brien understood and whether he was willing to answer some\n\n 5 questions; O'Brien said yes to both and seemed a little excited. (See id. at 14-15.)\n\n 6 When Alahverdian asked whether the agents could search the apartment, \"[O'Brien]\n\n 7 said, yeah, you can look anywhere you want.\" (Id. at 16.)\n\n 8 After receiving this oral consent to search, Alahverdian relayed it to his\n\n 9 supervising officer and then returned to the living room; at that point, O'Brien told\n\n10 Alahverdian and Marino that he was addicted to GHB, that he ingested it daily, and\n\n11 he asked to be allowed to take some immediately. (See id. at 17 (\"He asked for a cup\n\n12 of GHB.\").) O'Brien told them that if he did not get his dosage of GHB \"he would get\n\n13 sick\"; but he did not say he needed to be taken to a hospital. (Id. at 46.) Alahverdian\n\n14 and Marino told O'Brien that he could not be given GHB because it is a controlled\n\n15 substance. (See id. at 17-18, 46.) O'Brien then asked if he could take a Valium pill and\n\n16 told Marino where to find one. Alahverdian, after briefly stepping away again to\n\n17 confer with his supervisor and returning to the living room, inferred that Marino had\n\n18 allowed O'Brien to take a Valium because he heard O'Brien thanking Marino. (See id.\n\n\n 12\n\f 1 at 18, 47; see also Hearing Transcript, August 22, 2014 (\"Aug. 22 Tr.\"), at 12-13.)\n\n 2 Alahverdian testified that during the time he and Marino were in the\n\n 3 College Point Apartment with O'Brien, O'Brien was \"very talkative\" and \"was very\n\n 4 alert.\" (Aug. 13 Tr. 18; see id. at 29.) O'Brien was not slurring his words in any way,\n\n 5 and Alahverdian saw no indication that he was undergoing withdrawal. (See id.\n\n 6 at 19.) During the drive from the Apartment to the police precinct in Suffolk County,\n\n 7 O'Brien continued to be talkative, describing \"using his black Acer computer\" to\n\n 8 \"order[] Molly\" on \"websites like Ali Baba and Silk Road,\" and have it shipped to the\n\n 9 United States. (Id. at 20-21.)\n\n10 When they arrived at the precinct, O'Brien asked to have a cigarette and\n\n11 was allowed to smoke before entering the building. He thanked Alahverdian and\n\n12 Marino for treating him with courtesy and consideration. (See Aug. 13 Tr. 21-22.)\n\n13 After entering the precinct, Alahverdian, Marino, and O'Brien went into an interview\n\n14 room, where O'Brien was asked for consent to search his 41st Road stash pad. The\n\n15 DHS/ICE consent form was read to him, listing items and places to be searched;\n\n16 O'Brien did not ask any questions or give any indication that he did not understand.\n\n17 (See id. at 26.) He was given the form to read and was told that he had the right to\n\n18 refuse consent; he signed the form without indicating that he wished to refuse. (See,\n\n\n 13\n\f 1 e.g., id. at 26-29, 52-54, 63-64; see also id. at 54 (after looking at the consent-to-search\n\n 2 form, O'Brien signed it, saying \"yeah, it's okay or yes\").\n\n 3 When Alahverdian asked O'Brien what the agents were likely to find in\n\n 4 searching the 41st Road premises, O'Brien said there might be some steroids and that\n\n 5 there were about 10 kilograms of methylone. When Alahverdian sought details of the\n\n 6 operation, O'Brien said that, per kilo, he was buying methylone for about $1,900 and\n\n 7 selling it for $30,000. He again described ordering methylone online from China,\n\n 8 having it sent to local mailbox store addresses, and then having his people pick up\n\n 9 the packages for him. (See Aug. 13 Tr. 27, 29-30.)\n\n10 Alahverdian testified that after leaving the College Point Apartment,\n\n11 O'Brien had made no further mention of his addiction to GHB nor any mention of\n\n12 symptoms of withdrawal. (See id. at 27-29, 31-32, 61.) During his entire conversation\n\n13 with Alahverdian and Marino, O'Brien was talkative and pleasant and appeared to\n\n14 have no difficulty focusing on the agents' questions, or understanding them, or\n\n15 communicating. Alahverdian did not notice anything unusual about O'Brien's\n\n16 behavior. (See id. at 32.)\n\n\n\n\n 14\n\f 1 2. The Testimony of Schottenfeld\n\n 2 Schottenfeld testified principally about the evidence found on O'Brien's\n\n 3 computer (described in Part I.A. above) and about two recorded statements O'Brien\n\n 4 made to persons other than Alahverdian and Marino. First, Schottenfeld read the\n\n 5 following part of the October 10 county court transcript that followed the court's\n\n 6 refusal to grant O'Brien bail and encompassed the entire discussion of O'Brien's\n\n 7 physical condition:\n\n 8 Ms. Gearrity [O'Brien's then-attorney]: Judge, he has a\n 9 serious GHB addiction, so we're going to need medical attention.\n\n10 The Court: All right. Medical attention. What's G.H.B.?\n\n11 The Defendant: Um, your Honor, it's--it's detrimental, it's\n12 fatal.\n\n13 Ms. Gearrity: What's the name of it?\n\n14 The Defendant: Gamma hydroxybutyrate. It's a chemical\n15 that goes in the body and reduces your dopamine levels. When\n16 coming off of it, it will actually start firing dopamine, increasing\n17 my heart rate and I'll go into cardiac arrest if I don't get the proper\n18 treatment.\n\n19 The Court: All right. I'll mark it medical attention.\n\n20 (Aug. 13 Tr. 82 (see County Court Oct. 10 Transcript at 3-4).)\n\n\n\n\n 15\n\f 1 Second, Schottenfeld testified that he had listened to consensually\n\n 2 recorded telephone calls made by O'Brien from the county jail. Schottenfeld\n\n 3 identified a \"CD [that] comes from the jail stating it's Mr. O'Brien\" (Aug. 13 Tr. 87),\n\n 4 which contained an October 16, 2013 conversation between O'Brien and a woman\n\n 5 later identified as his ex-fiancée (see Aug. 22 Tr. 68). The CD was introduced and\n\n 6 played for the court. (See Aug. 13 Tr. 83-84.) Although it does not appear that the\n\n 7 record contains a transcript of the CD, O'Brien's own testimony--on cross-examination\n\n 8 at the August 22 session of the suppression hearing--as to what he said in that\n\n 9 recorded conversation was, in part, as follows:\n\n10 Q. You told her that the agents came in, and they were like,\n11 well, we don't actually have a search warrant for your house, so,\n12 but we could get one. So you know, you want to let us look\n13 around. And I said, go ahead, feel free, I said, go ahead take a look. Is\n14 that correct?\n\n15 A. That's correct.\n\n16 Q. And is that an accurate reflection of what happened in your\n17 apartment?\n\n18 A. I would say so.\n\n19 Q. That they told you, that they didn't have a search warrant,\n20 and asked for permission to search and you said, go ahead; is that\n21 correct?\n\n\n\n 16\n\f 1 A. That's correct.\n\n 2 (Aug. 22 Tr. 68-69 (emphases added).)\n\n\n\n\n 3 3. The Testimony of Marino\n\n 4 Marino, called as a witness by O'Brien, testified principally as follows.\n\n 5 When Marino first saw O'Brien at the College Point Apartment on October 10, O'Brien\n\n 6 had already been handcuffed. (See Aug. 22 Tr. 6-7.) After Marino and Alahverdian\n\n 7 introduced themselves as federal officers, O'Brien responded \"Okay\" and said that he\n\n 8 was prepared to help, which Marino understood to mean that O'Brien sought to avoid\n\n 9 imprisonment by providing information. (See id. at 29.) Alahverdian then read\n\n10 O'Brien the Miranda warnings; O'Brien said he understood those rights. (See id. at 30.)\n\n11 O'Brien said he was willing to speak to the agents, and he orally gave consent for the\n\n12 search of the Apartment. (See id. at 10 (\"I asked him if we were okay to search and he\n\n13 said go right ahead.\").)\n\n14 After O'Brien \"had given [the agents] consent to search the apartment,\n\n15 . . . then he advised that he was addicted to the Ghb and the anabolic steroids.\" (Id.\n\n16 at 10.) O'Brien also \"advised [the agents] he was very eager to assist us in the\n\n17 investigations\" (id. at 11-12), and expressed his eagerness to stay out of jail, reiterating\n\n\n 17\n\f 1 \"throughout the course of the day\" that \"in order to most help out law enforcement,\"\n\n 2 \"he would need to be out in the street\" (id. at 34).\n\n 3 As to his addiction, O'Brien said he had taken GHB that morning and\n\n 4 asked whether he could take more. When Marino replied that that would not be\n\n 5 permitted, O'Brien said that \"if that d[id]n't happen, [he] c[ould] get very sick\";\n\n 6 Marino testified, \"I don't know if he used the word 'die,' but\" it was either \"'sick' or\n\n 7 'die'.\" (Id. at 12.) O'Brien did not, however, say he was experiencing any symptoms\n\n 8 at that time (see id. at 32), and Marino understood him to be saying that he would\n\n 9 have problems in the future (see id. at 13). O'Brien asked, if he would not be allowed\n\n10 more GHB, whether Marino would let him have a Valium--and pointed to a pill next\n\n11 to a prescription bottle--explaining that Valium would help in \"counteracting\" the\n\n12 GHB (id. at 12). Marino testified that although it was certainly not standard\n\n13 procedure, he let O'Brien have a Valium pill because O'Brien seemed \"sincere.\" (Id.\n\n14 at 13 (\"It sounded like he was legitimate.\").)\n\n15 When O'Brien disclosed his GHB addiction, he did not elaborate and\n\n16 \"[h]e was not complaining of anything\"; \"[h]e was fine.\" (Id. at 17.) He was calm, was\n\n17 not slurring his words, and was having no difficulty speaking. (See id. at 30-32.) He\n\n18 also exhibited no difficulty in understanding the agents' questions, or focusing, or\n\n\n 18\n\f 1 staying awake. (See id. 29, 39.) Although O'Brien's hands were \"slightly shaking\" at\n\n 2 the outset, Marino testified that he attributed that simply to O'Brien's being arrested;\n\n 3 he \"asked [O'Brien] a couple of times throughout the interview if he was feeling okay\n\n 4 and he said he was fine. . . . There was nothing out of the ordinary.\" (Id. at 33.)\n\n 5 There was no point in the day when O'Brien did not appear to be lucid,\n\n 6 or when he did not understand what was going on, or when the agents had any\n\n 7 difficulty communicating with him. (See id. at 36-37.) After the agents and O'Brien\n\n 8 left the Apartment and were on the way to the police precinct in Suffolk County,\n\n 9 O'Brien did not exhibit any symptoms of possible withdrawal or intoxication and was\n\n10 speaking freely (see id. at 34), giving the agents details about his drug importation\n\n11 operation.\n\n12 He advised that he had a black Acer computer that had on the\n13 computer all his information from the purchases he made from\n14 China because he was selling large amounts of Molly . . . . He said\n15 that he also used websites such as Ali Baba and Silk Road and\n16 there would be conversations and receipts on that computer. He\n17 also admitted to having paid an individual [named] Wagner $200\n18 for every time he picked up a box of Molly from a mailbox store\n19 [that O'Brien had had him open] in [Wagner's] name.\n\n20 (Id. at 15-16.)\n\n\n\n\n 19\n\f 1 In the interview room at the police precinct, Marino told O'Brien that the\n\n 2 agents knew about O'Brien's stash house at 41st Road: \"I said we knew about the\n\n 3 stash house and the location. I said I would like to search it. He said okay.\" (Id. at 19\n\n 4 (emphases added).) Asked what the agents would find in that search, O'Brien\n\n 5 responded, \"[m]ultiple vials of steroids and probably about 10 keys of Molly.\" (Id.;\n\n 6 see also Aug. 13 Tr. 30 (\"key\" is used as slang for kilogram).)\n\n 7 Marino then filled out the DHS/ICE consent form (quoted in full in Part\n\n 8 I.A. above), read it to O'Brien and went over it with him. Marino informed O'Brien\n\n 9 \"that he had a right to refuse to consent to search his computer, his phones, the\n\n10 apartment at 41st Road and the College Point Boulevard apartment.\" (Aug. 22 Tr. 21.)\n\n11 O'Brien did not in any way indicate that he wished to refuse consent. (See id. at 35.)\n\n\n\n\n12 4. The Testimony of O'Brien\n\n13 O'Brien testified at the suppression hearing and largely denied that he\n\n14 had given the above consents to search. He said that when he met Marino, he\n\n15 immediately told the agents that they needed to get him to a hospital within four\n\n16 hours or he would die. He also testified that he told the agents of his need for\n\n17 medical attention three times during the approximately 20 minutes they were in the\n\n\n 20\n\f 1 College Point Apartment, and that later that day he so informed the county court.\n\n 2 O'Brien testified that he remembered speaking to Marino, but he did not\n\n 3 remember speaking to, or even seeing, Alahverdian that day. (See Aug. 22 Tr. at 43,\n\n 4 63.) O'Brien did not remember, inter alia, receiving Miranda warnings (see id. at 45, 67)\n\n 5 or signing the DHS/ICE consent form attached to his Suppression Motion Affidavit\n\n 6 (see id. at 51). Notwithstanding his claimed inability to remember several events of\n\n 7 October 10, O'Brien said \"I can testify . . . , swear up and down,\" that \"I have never\n\n 8 had a conversation about th[e DHS/ICE] form.\" (Id.) O'Brien noted that his arrest on\n\n 9 October 10, 2013, was pursuant to a state warrant, and he testified that at \"[n]o time\n\n10 did [he] invite [Marino] to go collecting evidence on an outside case.\" (Id. at 44; see\n\n11 id. at 51 (\"The only consent that I gave, was to look around the College Point location,\n\n12 they were asking about guns. I told them there are no guns in this property. You can\n\n13 look around.\"); but see id. at 67 (O'Brien \"d[id]n't remember giving them consent to\n\n14 search [the College Point Apartment]\").)\n\n15 O'Brien denied signing the Written Consent To Search form at the police\n\n16 precinct as Marino and Alahverdian described. First, O'Brien testified that in fact he\n\n17 was not taken to a precinct but had instead been driven from the Apartment directly\n\n18 to the county courthouse. (See id. at 47.) In addition, he testified that he never gave\n\n\n 21\n\f 1 a written consent to search. (See id. at 45, 53; see also O'Brien Aff. ¶ 6 (the \"signature\"\n\n 2 on the \"Consent to Search Form . . . . is not mine\").) However, he also testified to\n\n 3 having a \"fuzzy\" recollection of being visited by Marino and Alahverdian in the\n\n 4 hospital while he was \"in and out of\" a \"coma,\" and he \"deduce[d] that that is where\n\n 5 they had me sign the consent to search form\" (Aug. 22 Tr. 49-50).\n\n 6 O'Brien admitted that in the postarrest car ride from the College Point\n\n 7 Apartment he told the agents he had a black Acer computer at the Apartment. He\n\n 8 also admitted that he had in fact used the Ali Baba website; but he denied that he so\n\n 9 told the agents. (See id. at 75-76.) O'Brien also admitted that during that drive he told\n\n10 the agents about the 41st Road stash pad. \"I told them there were steroids there and\n\n11 . . . maybe some molly . . . .\" (Id. at 53.) However, he testified that \"at no time did the[\n\n12 agents] ask [him] for consent to search the [41st Road] apartment\" and that he \"never\n\n13 gave consent.\" (Id.)\n\n14 As to his physical condition, O'Brien testified that, although he could\n\n15 normally sleep 3-4 hours without being awakened by GHB withdrawal symptoms (see\n\n16 id. at 42, 77-78), on October 10 he began experiencing GHB withdrawal symptoms\n\n17 when he was being taken down in the elevator from the Apartment, which was some\n\n18 30-35 minutes after he had last taken GHB (see, e.g., id. at 60 (his \"arrest . . . was about\n\n\n 22\n\f 1 15 minutes [after his] last dose\")). He said he was taken to the county courthouse, a\n\n 2 trip that took about 1½ hours, and that when they arrived he could not walk without\n\n 3 staggering (see id. at 47). O'Brien testified \"seizure was running through my body, my\n\n 4 entire body was shaking, my hands shaking\" \"as [he was] standing before the Suffolk\n\n 5 County Judge\" (id. at 58).\n\n 6 O'Brien acknowledged that his then-attorney said nothing to the court\n\n 7 early in the hearing about his addiction or any withdrawal symptoms. It was not\n\n 8 until the court said that bail would be denied that she raised that subject. (See Aug.\n\n 9 22 Tr. 79-80.) He said that after the county court denied him bail,\n\n10 I asked for medical attention there, in the Court, in the courtroom.\n11 Judge Efman had to finish my sentence for me as I was asking for\n12 medical attention, because I was seizure-ing. I could not come out\n13 with the words. Judge finished the sentence, you need medical\n14 attention, I said, yes, sir.\n\n15 (Id. at 48.) He testified that \"despite the clarity of the [county court] transcripts,\" he\n\n16 \"had a massive seizure\" on October 10 \"right there in open court.\" (Id. at 47-48.)\n\n17 While claiming to have been unable to find the words \"medical\n\n18 attention,\" O'Brien did not dispute that he had been able to tell the court that GHB\n\n19 stood for \"Gamma Hydroxybutyrate\" and to explain its chemical effects on the body\n\n20 (id. at 80; see id. at 81-82). O'Brien admitted that had been \"able to understand\" with\n\n\n 23\n\f 1 \"no difficulty . . . what was going on\" in that proceeding; and he acknowledged that\n\n 2 the transcript contains no indication that he was shaking, staggering, falling, having\n\n 3 a seizure, or unable to articulate. (Id. at 81-82.)\n\n\n\n\n 4 5. The District Court's Decision\n\n 5 In a decision announced on the record on March 20, 2015, the district\n\n 6 court denied O'Brien's suppression motion. (See Status Conference Transcript March\n\n 7 20, 2015 (\"Suppression Motion Decision\").) The court concluded, based on the totality\n\n 8 of the circumstances credibly shown by the record, that the government had carried\n\n 9 its burden of proving that on October 10, 2013, O'Brien made the various statements\n\n10 attributed to him pursuant to valid Miranda waivers; that the searches at issue were\n\n11 authorized by O'Brien's voluntary consent, first oral and then written; and that while\n\n12 the Written Consent To Search was not a model of clarity, even read in the light most\n\n13 favorable to O'Brien it encompassed everything found in his two apartments,\n\n14 including his computers and phones.\n\n15 The court found that the agents who testified at the suppression hearing\n\n16 were credible witnesses, based principally on their demeanor, their experience, and\n\n17 the content of their testimony. In addition, the court found that Marino's credibility\n\n\n 24\n\f 1 was enhanced by his candor in admitting that he had allowed O'Brien to take a\n\n 2 Valium, an admission that \"was . . . not necessarily in [Marino's] best interest,\" id. at 4.\n\n 3 The court found that Miranda warnings were properly administered at the College\n\n 4 Point Apartment; it credited the testimony of Alahverdian and Marino that O'Brien\n\n 5 appeared to be calm, lucid, talkative, and \"cogently answering questions, giving the\n\n 6 agents detailed information\" in \"wanting to help get himself out of this situation,\" and\n\n 7 that the agents saw no signs that O'Brien was undergoing withdrawal. Id. at 8.\n\n 8 The district court rejected O'Brien's claim that he had been incapable of\n\n 9 consenting to searches of his properties on October 10 because of withdrawal from\n\n10 GHB. It found that his testimony lacked credibility \"in significant part, if not in\n\n11 whole,\" id. at 4; see id. at 5-6 (\"much of his testimony was belied by every other piece\n\n12 of evidence in the case,\" including being inconsistent with \"his premotion affidavit\"\n\n13 and with \"the jail call that he made to his girlfriend\"). The court also noted that the\n\n14 transcript of O'Brien's October 10 appearance in county court showed that O'Brien\n\n15 was in control of his faculties [and] was explaining in detail to\n16 Judge Ef[]man the potential [e]ffects of GHB withdrawal . . .\n17 [O'Brien] was being his own very effective advocate . . . which\n18 demonstrates now probably hours after [his] last hit of GHB that\n19 he was not suffering in any way, shape, or form from any type . . .\n20 of withdrawal that could affect his ability to knowingly and\n21 voluntarily waive his Miranda rights or consent to any of the\n22 searches.\n\n 25\n\f 1 Id. at 8-9. The court rejected as \"incredible\" O'Brien's assertion that he had a seizure\n\n 2 right after the court reporter stopped recording the proceedings. Id. at 9.\n\n 3 The court also found \"no evidence in the hospital records to corroborate\n\n 4 [O'Brien's] story\" that he had a seizure, went into a coma, and was largely\n\n 5 unconscious for the next several days. Id. at 10. It noted that those medical records\n\n 6 themselves commented \"that his stay was, quote, unremarkable.\" Id. The court found\n\n 7 that O'Brien's \"notion that the consent form was signed at the hospital while [he] was\n\n 8 in a coma\" was belied by all of the other evidence in the case, as well as being\n\n 9 \"completely implausible.\" Id. at 5.\n\n10 In sum, the district court stated, \"I find that the [e]ffects of GHB,\n\n11 whatever they were on the defendant, did not in any way undermine the defendant's\n\n12 knowing and voluntary consent to search, the oral consent at College Point, and the\n\n13 written consent for both College Point and 41st Road, or the waiver of his Miranda\n\n14 rights,\" id. at 10.\n\n\n\n\n15 C. The Trial, and O'Brien's Posttrial Motions\n\n16 In May 2015, with the start of his trial about two months away, O'Brien,\n\n17 who had been represented by counsel throughout the pretrial proceedings, elected\n\n\n 26\n\f 1 to represent himself at trial. The court, after conducting a Faretta inquiry, see Faretta\n\n 2 v. California, 422 U.S. 806, 835 (1975), allowed him to proceed pro se, with standby\n\n 3 counsel. On July 28, 2015, the sixth day of trial, the jury found O'Brien guilty on all\n\n 4 five of the counts against him.\n\n 5 After the jury verdict, O'Brien decided that he no longer wanted to\n\n 6 proceed pro se, and counsel was appointed to represent him. However, on August 11,\n\n 7 2015, O'Brien again decided that he wanted to proceed pro se; and again, after\n\n 8 appropriate Faretta warnings, he was allowed to do so with standby counsel. In this\n\n 9 new pro se period, O'Brien unsuccessfully moved for acquittal on the ground that the\n\n10 evidence was insufficient to show that he had any connection to the 41st Road\n\n11 apartment in which, inter alia, 11 kilograms of methylone had been found. Thereafter,\n\n12 while still pro se, O'Brien also moved, as discussed in Part II.C. below, for acquittal on\n\n13 the ground that methylone was designated a controlled substance pursuant to an\n\n14 unconstitutional delegation of Congress's legislative power. That motion too was\n\n15 denied.\n\n16 In June 2017, O'Brien decided that he wished to be represented by\n\n17 counsel again, and counsel was appointed to represent him in connection with\n\n18 sentencing.\n\n\n 27\n\f 1 II. DISCUSSION\n\n\n\n\n 2 On appeal, O'Brien principally challenges (A) the district court's denial\n\n 3 of his pretrial motion to suppress his postarrest statements and the physical evidence\n\n 4 that was seized, (B) the sufficiency of the trial evidence to show that he knew\n\n 5 methylone was a controlled substance, and (C) the denial of his posttrial motion to\n\n 6 dismiss the indictment on the ground that the process that led to the designation of\n\n 7 methylone as a controlled substance was unconstitutional. For the reasons that\n\n 8 follow, we reject all of his contentions.\n\n\n\n\n 9 A. The Denial of O'Brien's Motion To Suppress\n\n10 O'Brien contends that his October 10, 2013 postarrest statements should\n\n11 have been suppressed on the ground that, as he was undergoing withdrawal from\n\n12 GHB, he was incapable of knowingly or voluntarily waiving his Fifth Amendment\n\n13 privilege against self-incrimination. He contends that the physical evidence seized\n\n14 in searching his College Point and 41st Road apartments should have been\n\n15 suppressed as violative of his rights under the Fourth Amendment on the ground that\n\n16 he did not give voluntary consent for those searches, either because of his claimed\n\n\n 28\n\f 1 incapacitation by GHB withdrawal or because, he contends, the actions of the agents\n\n 2 were coercive and he was not informed of his right to refuse consent to search.\n\n 3 In considering challenges to the denial of a suppression motion, we\n\n 4 review the district court's conclusions of law de novo and its findings of fact for clear\n\n 5 error. See, e.g., United States v. Medunjanin, 752 F.3d 576, 584 (2d Cir.) (\"Medunjanin\"),\n\n 6 cert. denied, 135 S. Ct. 301 (2014). In conducting clear-error review, \"[w]e are not\n\n 7 allowed to second-guess the [court's] credibility assessments, and '[w]here there are\n\n 8 two permissible views of the evidence, the [court's] choice between them cannot be\n\n 9 clearly erroneous.'\" Id. (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985));\n\n10 see, e.g., United States v. Isiofia, 370 F.3d 226, 232 (2d Cir. 2004) (\"Isiofia\"). In reviewing\n\n11 the denial of a defendant's motion to suppress, we view the record in the light most\n\n12 favorable to the government. See, e.g., United States v. Moore, 670 F.3d 222, 226 (2d Cir.\n\n13 2012) (denial of motion to suppress postarrest statements); United States v. Moreno, 701\n\n14 F.3d 64, 72 (2d Cir. 2012) (denial of motion to suppress evidence seized in a search\n\n15 premised on consent). We see no error in the district court's denial of O'Brien's\n\n16 suppression motion.\n\n\n\n\n 29\n\f 1 1. O'Brien's Postarrest Statements\n\n 2 \"Once Miranda warnings have been given, if the individual indicates 'that\n\n 3 he wishes to remain silent, the interrogation must cease.'\" Medunjanin, 752 F.3d at 585\n\n 4 (quoting Miranda v. Arizona, 384 U.S. 436, 473-74 (1966)); see also Berghuis v. Thompkins,\n\n 5 560 U.S. 370, 386 (2010) (\"Police are not required to rewarn suspects from time to\n\n 6 time.\" (emphasis added)). In order to require that questioning cease, the accused\n\n 7 must assert his right affirmatively and unambiguously. See, e.g., id. at 381 (accused's\n\n 8 merely remaining \"[l]argely silent\" for some three hours did not invoke his privilege\n\n 9 to remain silent sufficiently to require that the officers refrain from questioning him\n\n10 (internal quotation marks omitted)). Where the accused \"did not\" say unambiguously\n\n11 either \"that he wanted to remain silent or that he did not want to talk with the police,\n\n12 . . . . he did not invoke his right to remain silent.\" Id. at 382.\n\n13 Nonetheless, an \"accused's statement during a custodial interrogation is\n\n14 inadmissable at trial unless the prosecution can establish that the accused 'in fact\n\n15 knowingly and voluntarily waived his [Miranda] rights' when making the statement.\"\n\n16 Id. (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). Such a \"waiver must be\n\n17 'voluntary in the sense that it was the product of a free and deliberate choice rather\n\n18 than intimidation, coercion, or deception,'\" and must be \"knowing[]\" in the sense that\n\n\n 30\n\f 1 it was \"'made with a full awareness of both the nature of the right being abandoned and the\n\n 2 consequences of the decision to abandon it.'\" Berghuis, 560 U.S. at 382-83 (quoting\n\n 3 Moran v. Burbine, 475 U.S. 412, 421 (1986) (\"Burbine\") (emphasis ours)). \"'[A]s Miranda\n\n 4 holds, full comprehension of the rights to remain silent and request an attorney [is]\n\n 5 sufficient to dispel whatever coercion is inherent in the interrogation process.'\"\n\n 6 Berghuis, 560 U.S. at 382 (quoting Burbine, 475 U.S. at 427).\n\n 7 The waiver need not have been express; \"courts can infer a waiver of\n\n 8 Miranda rights 'from the actions and words of the person interrogated.'\" Berghuis, 560\n\n 9 U.S. at 387 (quoting Butler, 441 U.S. at 373). The prosecution need prove waiver only\n\n10 \"by a preponderance of the evidence,\" and it may be inferred \"from all the\n\n11 circumstances.\" Berghuis, 560 U.S. at 384. \"[A] suspect who has received and\n\n12 understood the Miranda warnings, and has not invoked his Miranda rights, waives the\n\n13 right to remain silent by making an uncoerced statement to the police.\" Id. at 388-89.\n\n14 In the present case, as described in Part I.B.5. above, the district court--\n\n15 crediting the hearing testimony of Alahverdian and Marino, as it was entitled to do--\n\n16 found that proper Miranda warnings were administered to O'Brien at the College\n\n17 Point Apartment, that he understood his rights, and that he knowingly and\n\n18 voluntarily waived them. The finding as to O'Brien's comprehension of the Miranda\n\n 31\n\f 1 warnings was supported by, inter alia, the agents' testimony that O'Brien was alert,\n\n 2 focused, and never evinced any difficulty understanding the agents or\n\n 3 communicating with them, and that he said he understood those rights when they\n\n 4 were read to him.\n\n 5 The evidence supporting the finding that O'Brien's ensuing statements\n\n 6 were voluntary included the testimony of the agents, described in Parts I.B.1. and\n\n 7 I.B.3. above, that (a) after receiving his Miranda warnings O'Brien said he was willing\n\n 8 to talk with the agents, (b) he had in fact expressed eagerness to provide them with\n\n 9 information immediately upon meeting them and was temporarily halted only\n\n10 because Alahverdian insisted on giving him Miranda warnings first, and (c) after\n\n11 receiving his Miranda warnings, O'Brien was extremely talkative and informative,\n\n12 freely giving the agents numerous details about the workings of his methylone and\n\n13 anabolic steroids operation. O'Brien himself has never asserted--in his affidavit, or\n\n14 in his suppression hearing testimony, or in his brief on appeal--that he ever told the\n\n15 agents he wished to remain silent or he did not want to talk with them.\n\n16 The court was not required to reach contrary conclusions on the basis of\n\n17 O'Brien's testimony that he did not remember being given Miranda warnings on\n\n18 October 10. The court found it clear that the warnings had in fact been given, see\n\n\n 32\n\f 1 Suppression Motion Decision at 7; and O'Brien's professed inability to remember the\n\n 2 reading of Miranda warnings--which had interrupted his initial attempt to cooperate\n\n 3 in an effort to avoid imprisonment--was implausible at best. The court noted that\n\n 4 O'Brien's similar assertions that he did not remember giving permission that day to\n\n 5 search the College Point Apartment (see Aug. 22 Tr. 67; O'Brien Aff. ¶ 6) were not\n\n 6 credible in light of his recorded October 16 telephone call from jail to his ex-fiancée\n\n 7 (see Suppression Motion Decision at 5-6), in which O'Brien said that the agents had\n\n 8 asked for permission to search the Apartment and he had said, \"go ahead\" (Aug. 13\n\n 9 Tr. 83-84).\n\n10 The present record also fully supports the court's finding that O'Brien's\n\n11 ability to understand his Fifth Amendment rights and forgo them voluntarily was not\n\n12 impeded by his addiction to GHB. O'Brien's reliance on this Court's decision in\n\n13 United States v. Taylor, 745 F.3d 15 (2d Cir. 2014), for the contrary conclusion is\n\n14 misplaced. In that case, in which the defendant apparently had attempted to commit\n\n15 suicide by ingesting a large number of pills as he was arrested, we reversed the denial\n\n16 of a suppression motion where the record showed, inter alia, that \"Taylor was largely\n\n17 stupefied when he made his post-arrest statements, as confirmed by the testimony of the\n\n18 law enforcement agents and the pretrial services officer who interviewed him, and by the\n\n\n 33\n\f 1 evaluations of staff psychologists at the Metropolitan Correctional Center,\" id. at 20\n\n 2 (emphases added); that \"all the witnesses support[ed] the account that Taylor was\n\n 3 actually slipping in and out of consciousness during [his first] interview, and immediately\n\n 4 before and after the [second] interview,\" id. at 26 n.3 (emphases added); and that it\n\n 5 was \"clear to the officers (as their testimony confirm[ed]) that Taylor was in and out of\n\n 6 consciousness while giving his statement, and in a trance or a stupor most of the time\n\n 7 when not actually asleep,\" id. at 25 (emphases added).\n\n 8 Here, in contrast, no one testified that O'Brien was somnolent or in a\n\n 9 stupor or not fully conscious during his dealings with Alahverdian and Marino. The\n\n10 agents testified squarely to the contrary. (See, e.g., Aug. 22 Tr. 34 (Marino: O'Brien\n\n11 did not appear to have had any difficulty staying awake); Aug. 13 Tr. 29\n\n12 (Alahverdian: O'Brien appeared to have no difficulty at all focusing on or\n\n13 understanding the agents' questions).) Alahverdian also testified that O'Brien was\n\n14 \"very talkative\" and \"very alert\" (Aug. 13 Tr. 18); and Marino testified that O'Brien\n\n15 was calm and coherent, speaking freely, and was lucid throughout the day (Aug. 22\n\n16 Tr. 12, 31-32, 36).\n\n17 O'Brien's own representations as to his condition were inconsistent. For\n\n18 example, in his affidavit, O'Brien said he was in withdrawal from GHB at the time of\n\n\n 34\n\f 1 his arrest. (See O'Brien Aff. ¶ 10.) Yet there is no dispute that after O'Brien's arrest,\n\n 2 Alahverdian and Marino were in O'Brien's College Point Apartment for some 20\n\n 3 minutes before taking him downstairs for the drive to Suffolk County; and O'Brien\n\n 4 testified at the suppression hearing \"not until I went downstairs, that is when the\n\n 5 withdrawal began\" (Aug. 22 Tr. 65; see id. (\"Q. When you were speaking with agents\n\n 6 in your apartment, you were not going through withdrawal; is that correct? A. That's\n\n 7 correct.\")).\n\n 8 Both Alahverdian and Marino testified that O'Brien gave no appearance\n\n 9 of being in withdrawal--and said nothing about needing immediate medical\n\n10 attention--either at the Apartment or during the drive to the Suffolk County police\n\n11 precinct. (See, e.g., Aug. 13 Tr. 19, 27-29, 31-32, 46, 61; Aug. 22 Tr. 17, 32-34.) And\n\n12 although at the end of the interview at the police precinct O'Brien told the agents that\n\n13 he felt ill, the transcript of his ensuing county court proceeding--in which O'Brien\n\n14 himself explained the workings and effect of GHB, telling the court that the actual\n\n15 name of GHB is \"Gamma-Hydroxybutyrate\"--counters his claim that his cognitive\n\n16 powers were impaired. Indeed, at the suppression hearing O'Brien admitted that in\n\n17 the county court proceeding he in fact \"had no difficulty understanding what was\n\n18 going on\" (Aug. 22 Tr. 82).\n\n\n 35\n\f 1 The district court discredited, as it was entitled to, O'Brien's claim that,\n\n 2 when he arrived at the county court, he was having a seizure. That claim is belied by\n\n 3 the undisputed facts that he and his attorney made no mention of his physical\n\n 4 condition until late in that court proceeding; and that when his attorney introduced\n\n 5 the fact of his addiction, there was no mention whatever of a seizure--either by the\n\n 6 attorney or by O'Brien himself. As the district court found, the county court\n\n 7 transcript of O'Brien's responses--some hours after his last ingestion of GHB--reveals\n\n 8 that O'Brien acted in that proceeding as a capable and articulate advocate for himself\n\n 9 and negates any inference that he was impaired when he agreed to speak with the\n\n10 agents earlier.\n\n11 In sum, the circumstances as a whole, as reflected in the present record,\n\n12 reveal no error either in the district court's findings that O'Brien received proper\n\n13 Miranda warnings, fully understood them, and voluntarily made statements to the\n\n14 agents, or in the court's conclusion that he thus waived his Fifth Amendment right to\n\n15 remain silent.\n\n\n\n\n16 2. O'Brien's Consents To Search\n\n17 \"It is . . . well settled that one of the specifically established exceptions\"\n\n\n 36\n\f 1 to the Fourth Amendment requirements that private property not be searched\n\n 2 without a search warrant issued upon probable cause \"is a search that is conducted\n\n 3 pursuant to consent.\" Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). When the\n\n 4 \"'prosecut[ion] seeks to rely upon consent to justify the lawfulness of a search, [it] has\n\n 5 the burden of proving that the consent was, in fact, freely and voluntarily given.'\" Id.\n\n 6 at 222 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).\n\n 7 The analysis required to determine whether consent to search was given\n\n 8 freely and voluntarily, however, differs somewhat from the above Fifth Amendment\n\n 9 analysis as to whether the postarrest right to remain silent was \"knowingly\" and\n\n10 voluntarily waived, for \"[t]here is a vast difference between those [Fifth Amendment\n\n11 truth-seeking] rights that protect a fair criminal trial and the rights guaranteed under\n\n12 the Fourth Amendment.\" Schneckloth, 412 U.S. at 241. Whereas \"[a] strict standard of\n\n13 waiver has been applied to those [Fifth Amendment] rights guaranteed to a criminal\n\n14 defendant to insure that\" he \"has not unknowingly relinquished the basic protections\n\n15 . . . thought indispensable to a fair trial,\" id. at 242, the Fourth Amendment's focus is\n\n16 not on truth-seeking at trial but rather on \"protect[ing] the 'security of one's privacy\n\n17 against arbitrary intrusion by the police,'\" id. (quoting Wolf v. Colorado, 338 U.S. 25, 27\n\n18 (1949)).\n\n\n 37\n\f 1 Thus, focusing on what constitutes a valid consent for Fourth\n\n 2 Amendment purposes, the Schneckloth Court concluded that the considerations\n\n 3 informing the Miranda rule--that knowledge of a right to refuse to speak is an\n\n 4 indispensable element of a valid waiver of the privilege against self-incrimination--\n\n 5 \"are simply inapplicable\" to requests for a relaxation of one's insistence on the right\n\n 6 to privacy. Id. at 246. It ruled that the appropriate Fourth Amendment question is\n\n 7 \"whether a consent to a search was in fact 'voluntary' or was the product of duress or\n\n 8 coercion, express or implied.\" Id. at 227. Finding \"no reason . . . in the area of consent\n\n 9 searches\" to deviate \"from the traditional definition of 'voluntariness,'\" id. at 229, the\n\n10 Court stated that voluntariness \"is a question of fact to be determined from the\n\n11 totality of all the circumstances,\" id. at 227. And \"[w]hile knowledge of the right to\n\n12 refuse consent is one factor to be taken into account, the government need not\n\n13 establish such knowledge as the sine qua non of an effective consent.\" Id.; see also id.\n\n14 at 248-49; Edwards v. Arizona, 451 U.S. 477, 484 (1981) (\"Schneckloth . . . thus\n\n15 emphasized that the voluntariness of a consent or an admission on the one hand, and\n\n16 a knowing and intelligent waiver on the other, are discrete inquiries.\").\n\n17 Schneckloth announced its test in the context of the prosecution's reliance\n\n18 on consent given by the subject of the search who was not in custody. In United States\n\n 38\n\f 1 v. Watson, 423 U.S. 411 (1976), the Court held that the fact that consent was given by\n\n 2 the subject of the search while he was in custody does not change the test; custody is\n\n 3 a factor to be considered, but not one that is dispositive. Id. at 424 (\"the fact of\n\n 4 custody alone has never been enough in itself to demonstrate a coerced confession or\n\n 5 consent to search\"; \"under Schneckloth, the absence of proof that [the defendant] knew\n\n 6 he could withhold his consent, though it may be a factor in the overall judgment, is\n\n 7 not to be given controlling significance\").\n\n 8 As \"[t]he touchstone of the Fourth Amendment is reasonableness,\" Florida\n\n 9 v. Jimeno, 500 U.S. 248, 250 (1991), \"[t]he standard for measuring the scope of a\n\n10 suspect's consent under the Fourth Amendment is that of 'objective' reasonableness--\n\n11 what would the typical reasonable person have understood by the exchange between\n\n12 the officer and the suspect?\" Id. at 251. Thus, \"the ultimate question presented is\n\n13 whether the officer had a reasonable basis for believing that there had been consent\n\n14 to the search.\" United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995) (internal\n\n15 quotation marks omitted).\n\n\n\n\n16 In the present case, the district court correctly determined that O'Brien\n\n17 consented to the searches of his College Point and 41st Road apartments and that his\n\n\n 39\n\f 1 consents were not the product of duress or coercion, express or implied. While\n\n 2 O'Brien insists that his consent was involuntary because he was not informed that he\n\n 3 could refuse to give consent, that contention is legally and factually flawed. As\n\n 4 discussed above, Fourth Amendment standards do not make it mandatory to advise\n\n 5 a suspect of his right to refuse consent to search. And in any event, the Written\n\n 6 Consent To Search signed by O'Brien stated that he had in fact been informed that he\n\n 7 could refuse to consent to the search of his properties. O'Brien's testimony, varying\n\n 8 between, inter alia, claiming no recollection that he received appropriate warnings and\n\n 9 asserting categorically that he did not, provides no basis for overturning the district\n\n10 court's finding.\n\n11 Nor does the record support O'Brien's contention that the circumstances\n\n12 of his arrest on October 10 were inherently \"coercive\" (O'Brien brief on appeal at 42).\n\n13 O'Brien's effort to liken his case to Isiofia, 370 F.3d 226, in which we affirmed the grant\n\n14 of a suppression motion, falls woefully short. In Isiofia, the district court had\n\n15 plausibly found that a defendant's consent to search his apartment, computer, and car\n\n16 was not voluntary when it was given only after, inter alia, (a) agents entered Isiofia's\n\n17 apartment unlawfully, (b) eight agents remained in the living room with him for up\n\n18 to an hour and a quarter without a valid reason to remain there, (c) the agents did not\n\n\n 40\n\f 1 tell him with what crime he was being charged, and (d) they gave Isiofia--who lacked\n\n 2 fluency in English--two consent-to-search forms that did not describe the nature of\n\n 3 the objects to be seized (one leaving that detail \"blank\" and the other being \"helplessly\n\n 4 vague\"). See id. at 231 (internal quotation marks omitted); id. at 234.\n\n 5 While O'Brien claims parallel circumstances by stating that he was\n\n 6 arrested and \"surrounded\" by a team of 10 or more officers from different agencies\n\n 7 (O'Brien brief on appeal at 43), the similarity ends with the fact that a large number\n\n 8 of officers entered O'Brien's home. Here, there was no illegal entry; the officers had\n\n 9 a well-founded fugitive warrant for his arrest, which allowed them to enter his\n\n10 Apartment to execute the arrest, see, e.g., Steagald v. United States, 451 U.S. 204, 221\n\n11 (1981). After O'Brien was arrested and seated on a couch in his living room, he was\n\n12 not surrounded by officers; only Alahverdian and Marino were there with him; the\n\n13 other officers were conducting a security sweep elsewhere in the apartment.\n\n14 Similarly, at the Suffolk County police precinct, the only officers in the interview\n\n15 room with O'Brien were Alahverdian and Marino. Further, O'Brien's own statements\n\n16 and explanations in the record in this case foreclose any suggestion that O'Brien was\n\n17 not fluent in the English language. And not only did the agents testify that they and\n\n18 O'Brien had no difficulty understanding each other; O'Brien--while saying that he\n\n\n 41\n\f 1 remembered meeting Marino but not Alahverdian in the Apartment--testified that he\n\n 2 \"had no difficulty communicating with [Marino]\" (Aug. 22 Tr. 65).\n\n 3 Nor does the record indicate that either Alahverdian or Marino engaged\n\n 4 in any coercion or intimidation. Marino testified that they did not (see Aug. 22 Tr. 36);\n\n 5 they were in the Apartment for only some 20 minutes, part of that time being needed\n\n 6 to allow O'Brien to get dressed (see id. at 14). And O'Brien did not describe any\n\n 7 threatening or coercive statements or conduct by the officers.\n\n 8 The record also belies any notion that O'Brien felt intimidated. For\n\n 9 example, \"throughout the course of the day\" O'Brien sought to bargain with the\n\n10 agents by offering to provide information to assist their investigation if it might keep\n\n11 him out of jail (Aug. 22 Tr. 34). Marino described O'Brien as calm, lucid, and\n\n12 speaking freely (see, e.g., id. at 31-33, 34); Alahverdian described the conversation with\n\n13 O'Brien during the ride to the Suffolk County police precinct as \"pleasant\" (Aug. 13\n\n14 Tr. 29). And in O'Brien's own description to his ex-fiancée on October 16, 2013, of his\n\n15 October 10 consent to search the Apartment, he sounded anything but intimidated.\n\n16 He admitted telling her that when they asked if they could search, he said \"go ahead,\"\n\n17 \"take a look,\" \"feel free\" (Aug. 22 Tr. 69).\n\n\n\n\n 42\n\f 1 Alahverdian also testified that in the Apartment, O'Brien thanked Marino\n\n 2 for granting his plea for a Valium; when they arrived at the precinct, O'Brien thanked\n\n 3 the agents for their considerate treatment in general. (Aug. 13 Tr. 18, 47, 21-22.) And\n\n 4 O'Brien himself testified that the agents had proceeded expeditiously on October 10\n\n 5 because \"they took it seriously that I needed medical attention.\" (Aug. 22 Tr. 57; see\n\n 6 also id. at 102 (Marino testifying that when they \"were concluding the interview\" at the\n\n 7 precinct, O'Brien \"said he wasn't feeling well and he wanted to see a doctor. The\n\n 8 interview stopped, I advised Suffolk County,\" and turned O'Brien over to the local\n\n 9 officers.).)\n\n10 O'Brien's contention that he was incapable of giving consent voluntarily\n\n11 because he was experiencing withdrawal from GHB is refuted by the record\n\n12 discussed in Part II.A.1. above, supporting the district court's permissible finding that\n\n13 O'Brien's cognitive and volitional functions were not impaired by his withdrawal\n\n14 from GHB.\n\n15 Finally, we reject O'Brien's additional suggestion that his ability to refuse\n\n16 consent was overborne by Marino's acceding to his request to alleviate the effects of\n\n17 GHB withdrawal by taking a Valium (see O'Brien brief on appeal at 43 (being \"given\n\n18 a Valium . . . could have only served to increase his impairment\"); see also id. at 38)).\n\n\n 43\n\f 1 O'Brien points to no evidence to support this supposition. In contrast, the evidence\n\n 2 includes medical records showing that when O'Brien arrived at the hospital\n\n 3 complaining of GHB withdrawal, one of the medicines he was immediately given was\n\n 4 Valium. (See, e.g., Hospital Discharge Summary at 1 (when O'Brien arrived at the\n\n 5 hospital and \"stated that he was using GHB,\" had been \"taking GHB for the last few\n\n 6 years, every 2-3 hours[,] and presented with tachycardia, disphoresis, and\n\n 7 tremulousness,\" \"[h]e was given Valium 5 IV, Librium 50 p.o., and a bolus of normal\n\n 8 saline, to which he responded and a decision was made not to place him in the ICU\n\n 9 for further monitoring.\" (emphasis added)).\n\n10 In sum, we see no error of fact or law in the district court's denial of\n\n11 O'Brien's motion to suppress the evidence discovered in the searches to which he\n\n12 consented.\n\n\n\n\n13 B. O'Brien's Insufficiency Argument\n\n14 The Controlled Substances Act (\"CSA\") provides, inter alia, that it is\n\n15 \"unlawful for any person knowingly or intentionally . . . to . . . possess with intent to\n\n16 . . . distribute . . . a controlled substance.\" 21 U.S.C. § 841(a)(1). It is also unlawful for\n\n17 any person \"knowingly or intentionally\" to \"import[] . . . a controlled substance\" into\n\n\n 44\n\f 1 the United States. 21 U.S.C. §§ 960, 952. The indictment charged O'Brien with\n\n 2 violating these sections by knowingly importing and possessing with intent to\n\n 3 distribute methylone and anabolic steroids; with violating 21 U.S.C. §§ 963 and 846,\n\n 4 respectively, by conspiring to import and to possess with intent to distribute those\n\n 5 substances; and with violating 21 U.S.C. § 856 by knowingly and intentionally renting\n\n 6 and maintaining premises for the purpose of distributing methylone, a controlled\n\n 7 substance. O'Brien argues that he was entitled to acquittals on the ground that the\n\n 8 government did not prove that he knew methylone was a controlled substance. We\n\n 9 disagree.\n\n10 Knowledge that the commodity being imported or possessed for\n\n11 distribution was a controlled substance is an element of each of the above offenses;\n\n12 and in order to convict, the government must establish that knowledge beyond a\n\n13 reasonable doubt. See, e.g., United States v. Abdulle, 564 F.3d 119, 125 (2d Cir. 2009)\n\n14 (\"Abdulle\") (§§ 841(a)(1) and 846); United States v. Hassan, 578 F.3d 108, 121 (2d Cir.\n\n15 2008) (§§ 952 and 963); United States v. Hamilton, 334 F.3d 170, 180 (2d Cir. 2003)\n\n16 (\"Hamilton\") (§ 856), cert. denied, 540 U.S. 985 (2003). See also McFadden v. United States,\n\n17 135 S. Ct. 2298, 2304 (2015) (the CSA requires only that the defendant know that the\n\n18 substance he is dealing with is listed on the federal drug schedules, not that he know\n\n\n 45\n\f 1 precisely what the substance is); Abdulle, 564 F.3d at 126 (\"A defendant may be\n\n 2 convicted of a violation of 21 U.S.C. § 846 without knowing the exact type of drug\n\n 3 involved. The government need only prove that the defendant was aware that some\n\n 4 controlled substance was involved.\" (internal quotation marks omitted)).\n\n 5 It is seldom possible to present direct evidence of a person's state of\n\n 6 mind. His knowledge may, however, be inferable from outward manifestations such\n\n 7 as his statements or his conduct, or from the circumstances surrounding or attendant\n\n 8 upon the fact he is alleged to have known. See, e.g., United States v. Nersesian, 824 F.2d\n\n 9 1294, 1314 (2d Cir. 1987). Efforts a defendant has made toward concealment, for\n\n10 example, of either the nature of an activity or his participation in it, may support an\n\n11 inference that he knew the activity was unlawful. See, e.g., Abdulle, 564 F.3d at 129 (\"a\n\n12 rational jury could have found that [the defendant in question] possessed and\n\n13 intended to deal in a controlled substance by inferring that he and the others\n\n14 expedited [its] importation . . . and concealed its contents in order to minimize the\n\n15 possibility that their illicit activities would be detected\").\n\n16 In challenging the sufficiency of the evidence to support his conviction,\n\n17 a defendant bears a heavy burden. See, e.g., United States v. Romano, 794 F.3d 317, 335\n\n18 (2d Cir. 2015); United States v. Leonard, 529 F.3d 83, 87 (2d Cir. 2008) (\"Leonard\"); United\n\n\n 46\n\f 1 States v. Morgan, 385 F.3d 196, 204 (2d Cir. 2004); Hamilton, 334 F.3d at 179. In\n\n 2 assessing such a challenge, we are required to view all of the evidence--whether direct\n\n 3 or circumstantial--in the light most favorable to the government. See, e.g., Glasser v.\n\n 4 United States, 315 U.S. 60, 80 (1942), overruled on other grounds by Bourjaily v. United\n\n 5 States, 483 U.S. 171, 181 (1987); United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008)\n\n 6 (\"Eppolito\"), cert. denied, 555 U.S. 1148 (2009); Leonard, 529 F.3d at 87. We consider\n\n 7 items of evidence not in isolation but in conjunction, see, e.g., United States v. Autuori,\n\n 8 212 F.3d 105, 114 (2d Cir. 2000); United States v. Podlog, 35 F.3d 699, 705 (2d Cir. 1994),\n\n 9 cert. denied, 513 U.S. 1135 (1995); we defer to the jury's evident assessments of the\n\n10 credibility of the witnesses and its resolution of the weight of the evidence, see, e.g.,\n\n11 United States v. Coté, 544 F.3d 88, 99 (2d Cir. 2008) (\"giv[ing] full play to the right of the\n\n12 jury to determine credibility\"); United States v. Miller, 116 F.3d 641, 676 (2d Cir. 1997),\n\n13 cert. denied, 524 U.S. 905 (1998); United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998);\n\n14 we credit every inference that the jury could have drawn in the government's favor,\n\n15 see, e.g., Eppolito, 543 F.3d at 45; Leonard, 529 F.3d at 87; and we must affirm the\n\n16 conviction so long as, from the inferences reasonably drawn, the jury might fairly\n\n17 have concluded guilt beyond a reasonable doubt, see, e.g., Eppolito, 543 F.3d at 45-46;\n\n18 United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003).\n\n 47\n\f 1 In sum, the conviction must be upheld if \"any rational trier of fact could\n\n 2 have found the essential elements of the crime beyond a reasonable doubt.\" Jackson\n\n 3 v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). This standard,\n\n 4 reemphasized in the Supreme Court's recent opinions, makes \"clear\" that \"on direct\n\n 5 appeal, 'it is the responsibility of the jury--not the court--to decide what conclusions\n\n 6 should be drawn from evidence admitted at trial. A reviewing court may set aside\n\n 7 the jury's verdict on the ground of insufficient evidence only if no rational trier of fact\n\n 8 could have agreed with the jury.'\" Coleman v. Johnson, 566 U.S. 650, 651 (2012) (quoting\n\n 9 Cavazos v. Smith, 565 U.S. 1, 2 (2011)).\n\n10 The jury in this case was properly instructed that in order to convict\n\n11 O'Brien on any of the counts against him, it was required to find that he knew the\n\n12 products he was importing and possessing with intent to distribute were controlled\n\n13 substances. There was no question that O'Brien knew that the substances he was\n\n14 importing were methylone and anabolic steroids. He admitted to Alahverdian and\n\n15 Marino that he ordered methylone and anabolic steroids online from sellers he knew\n\n16 were in China. And, as described in Part I.A. above, the search of O'Brien's College\n\n17 Point Apartment turned up dozens of airway bills for packages mailed from China.\n\n18 Contrary to O'Brien's repeated statement in his pro se opening to the jury that he had\n\n\n 48\n\f 1 \"nothing to hide,\" the many steps he took to conceal the contents of those packages\n\n 2 and his connection to them provided fertile ground for the inference that he knew\n\n 3 that dealing in those substances was unlawful.\n\n 4 First, rather than going through traditional banking channels, O'Brien\n\n 5 paid for his orders of these substances using bitcoins and multiple money remitter\n\n 6 services. This enabled him to, inter alia, make his purchases without using his own\n\n 7 name. (See generally Trial Transcript (\"Trial Tr.\") at 117, 280-82, 288-90.)\n\n 8 Second, O'Brien never had his purchases of methylone and anabolic\n\n 9 steroids addressed to himself or sent to his apartments. He hired people to rent mail\n\n10 boxes in their own names--or in false names--at mailbox stores throughout Brooklyn.\n\n11 As described in Part I.A. above, the items found in the search of O'Brien's College\n\n12 Point Apartment included not only applications and receipts for mailbox rental\n\n13 agreements at multiple mailbox store locations (see Trial Tr. 214), but also a cache of\n\n14 false identification cards, along with blank ID cards and a printer that could create\n\n15 more. O'Brien had the packages of methylone and anabolic steroids he ordered from\n\n16 China addressed to the persons who rented the mailboxes and sent to the various\n\n17 mailbox store locations. When the packages arrived, O'Brien had the persons he had\n\n18 hired retrieve them. For example, he told the agents on October 10 that he had had\n\n\n 49\n\f 1 his friend Michael Wagner rent a mailbox in Wagner's name, and he paid Wagner\n\n 2 $200 each time he picked up a box of Molly from a mailbox store and brought it to\n\n 3 O'Brien. (See Trial Tr. 117.)\n\n 4 In addition, the packages containing O'Brien's purchases were\n\n 5 themselves fraudulently labeled. The intercepted packages that led to O'Brien's\n\n 6 eventual arrest on the present charges bore labels that misrepresented their contents\n\n 7 as various uncontrolled substances, when in fact they contained methylone and\n\n 8 anabolic steroids that O'Brien had ordered.\n\n 9 Lastly, after the drugs ordered from China arrived and had been picked\n\n10 up by O'Brien's retrievers and given to O'Brien, O'Brien stored them in Apartment 5E\n\n11 on 41st Road--identified in his Written Consent To Search as one of \"my\n\n12 apartment[s].\" To rent that apartment O'Brien had used the alias \"George Manolas.\"\n\n13 In the district court, O'Brien moved for acquittal under Fed. R. Crim. P.\n\n14 29 on the principal ground that the government had failed to establish that he was the\n\n15 lessor of the 41st Road apartment in the name George Manolas. The district court\n\n16 denied that motion. See United States v. O'Brien, No. 13-CR-586 (RRM), 2017 WL\n\n17 2371159 (E.D.N.Y. May 31, 2017) (\"Rule 29 Decision\"). O'Brien has not challenged that\n\n18 decision on appeal, and any further argument that \"George Manolas\" was not one of\n\n\n 50\n\f 1 O'Brien's aliases has been waived.\n\n 2 In any event, the government's contention that the \"George Manolas\"\n\n 3 who leased the apartment at 41st Road was O'Brien was amply supported by several\n\n 4 categories of circumstantial evidence, including (a) trial testimony of Alahverdian\n\n 5 and/or Marino that O'Brien admitted that the 41st Road apartment was his stash\n\n 6 house, supplied the exact number of the apartment (5-E) when Marino said the agents\n\n 7 knew it was on the fourth or fifth floor, and reasonably accurately described what the\n\n 8 agents would find inside that apartment, see Rule 29 Decision, 2017 WL 2371159,\n\n 9 at *10 (citing Trial Tr. 119-25, 683); (b) recordings of two telephone calls by O'Brien in\n\n10 October 2013 from the county jail to his then-girlfriend, instructing her to open the\n\n11 mail at his College Point Apartment addressed to George Manolas, see Rule 29\n\n12 Decision, 2017 WL 2371159, at *11 (citing Trial Tr. 250, 253); and (c) testimony by\n\n13 Schottenfeld describing the batches of false identification documents found in the\n\n14 search of the College Point Apartment, including birth certificates, social security\n\n15 cards, and police identification cards in names other than O'Brien's, including the\n\n16 names Jeremy Soto, Stephen Conte, and George Manolas, with some of the Conte and\n\n17 Soto identification documents bearing photographs of O'Brien (see Trial Tr. 193-99).\n\n\n\n\n 51\n\f 1 In sum, O'Brien contrived to order and pay for methylone and anabolic\n\n 2 steroids without using his real name; to have the drug packages labeled as containing\n\n 3 uncontrolled substances; to have the packages addressed to persons other than\n\n 4 himself, sent to addresses other than his, and retrieved by other persons without\n\n 5 mention of his name; and to have the drugs warehoused in a place he leased under\n\n 6 an alias. Such precautions lent themselves easily to a rational inference that O'Brien\n\n 7 was aware that the drugs in which he dealt were controlled substances.\n\n 8 Finally, O'Brien also explicitly evinced his wariness of the law\n\n 9 enforcement tactic of apprehending drug traffickers by subjecting intercepted\n\n10 suspicious packages to controlled deliveries. In an O'Brien message that was read to\n\n11 the jury--apparently an email to a supplier, saying \"'65k is a very appealing offer.\n\n12 Okay,'\"--O'Brien indicated that his staff had previously been caught in such a\n\n13 maneuver, saying:\n\n14 \"Here is the problem with why i am so nervous about the current\n15 shipment--keep in mind i am very experienced... [T]his tracking\n16 number . . . says they made an attempt to deliver. [T]hat is\n17 IMPOSSIBLE. [I]t is a mailbox rental store and there is ALWAYS\n18 a person there to receive parcels--it's simply what they are in\n19 business to do... [T]hey rent mailboxes. [N]ot to mention that I\n20 receive parcels there every week from China with no\n21 problems. . . . [I]n my unfortunate experience in the past, along with\n22 the other wholesalers I know, this is a trap. I send my worker in to\n23 sign for the package and they arrest them on the spot.\"\n\n 52\n\f 1 (Trial Tr. 291-92 (quoting Government Exh. 413) (emphases ours).)\n\n 2 We conclude that the evidence as a whole was ample for the jury to infer\n\n 3 that O'Brien knew that the substances in which he knowingly dealt, methylone and\n\n 4 anabolic steroids, were in fact controlled substances.\n\n\n\n\n 5 C. O'Brien's Challenges to the Scheduling of Methylone as a Controlled Substance\n\n 6 Finally, O'Brien contends that the district court erred in denying his\n\n 7 posttrial motion for acquittal on the ground that the indictment charging him with\n\n 8 unlawful conduct with respect to methylone was constitutionally flawed because the\n\n 9 scheduling of methylone as a controlled substance was accomplished through (a) an\n\n10 impermissible delegation of congressional power to the United States Attorney\n\n11 General, and (b) the Attorney General's subdelegation of that power to the DEA. He\n\n12 also argues that the scheduling process was insufficient to afford him the notice\n\n13 mandated by principles of due process. We reject these contentions because such\n\n14 challenges were required to be made prior to trial and because, in any event, they lack\n\n15 merit.\n\n\n\n\n 53\n\f 1 1. Untimeliness\n\n 2 The Federal Rules of Criminal Procedure provide that certain types of\n\n 3 objections to a prosecution \"must be raised by pretrial motion if the basis for the\n\n 4 motion is then reasonably available and the motion can be determined without a trial\n\n 5 on the merits.\" Fed. R. Crim. P. 12(b)(3) (2014). This requirement serves a number of\n\n 6 purposes, including sparing the court, the witnesses, and the parties \"the burden and\n\n 7 expense of a trial,\" Davis v. United States, 411 U.S. 233, 241 (1973) (discussing 1944\n\n 8 version of Rule 12), and \"insuring that indictments are not routinely challenged (and\n\n 9 dismissed) after the jury has been seated and sworn, a result that would . . . force\n\n10 courts frequently to confront complex Double Jeopardy questions,\" United States v.\n\n11 Spero, 331 F.3d 57, 62 (2d Cir. 2003) (discussing 2002 version of Rule 12) (internal\n\n12 quotation marks omitted).\n\n13 The categories of motions that must be made before trial are those that\n\n14 assert \"a defect in instituting the prosecution,\" Fed. R. Crim. P. 12(b)(3)(A) (2014), or\n\n15 assert \"a defect in the indictment,\" id. Rule 12(b)(3)(B). As amended in 2014, Rule\n\n16 12(b)(3) provides \"a nonexclusive list of commonly raised claims under each\n\n17 category.\" Advisory Committee Note (2014) (\"2014 Advisory Note\"). The examples\n\n18 include \"an error in the grand-jury proceeding,\" Rule 12(b)(3)(A)(v), and the\n\n\n 54\n\f 1 indictment's \"failure to state an offense,\" id. Rule 12(b)(3)(B)(v). See also 2014 Advisory\n\n 2 Note (noting that prior language allowing a motion to dismiss for failure to state an\n\n 3 offense to be made at any time, on the theory that that failure was \"jurisdictional,\" was\n\n 4 removed in light of the Supreme Court's decision in United States v. Cotton, 535 U.S.\n\n 5 625, 629-31 (2002), that such a flaw does not implicate the court's jurisdiction).\n\n 6 If a motion falling within Rule 12(b)(3) is not made before trial (or before\n\n 7 such pretrial deadline as may be set by the court for such motions), it is \"untimely.\"\n\n 8 Fed. R. Crim. P. 12(c)(3) (2014). If the motion is untimely, the court may nonetheless\n\n 9 entertain it if the movant shows \"good cause\" for his failure to make it prior to the\n\n10 deadline. Id. Such provisions, albeit with slight variations in wording and\n\n11 numbering, have been included in Rule 12 since its inception in 1944. See, e.g., Davis,\n\n12 411 U.S. at 236 (discussing the original version of Rule 12, which stated in pertinent\n\n13 part, that \"'[d]efenses and objections based on defects in the institution of the\n\n14 prosecution or in the indictment . . . may be raised only by motion before trial,' and\n\n15 that failure to present such defenses or objections 'constitutes a waiver thereof, but\n\n16 the court for cause shown may grant relief from the waiver'\" (quoting Fed. R. Crim.\n\n17 P. 12(b)(2) (1944)); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 362 (1963)\n\n18 (\"Shotwell\") (same).\n\n\n 55\n\f 1 Both Davis and Shotwell dealt with posttrial claims that the prosecutions\n\n 2 had been defectively instituted because their respective grand juries had been\n\n 3 convened pursuant to selection methods not designed to draw from a cross-section\n\n 4 of the community. See, e.g., Davis, 411 U.S. at 235; Shotwell, 371 U.S. at 460-61. In both\n\n 5 cases, the Supreme Court concluded that the Rule 12 waiver provision \"precludes\n\n 6 untimely challenges to grand jury arrays, even when such challenges are on\n\n 7 constitutional grounds.\" Davis, 411 U.S. at 238 (citing Shotwell, 371 U.S. at 363).\n\n 8 In Shotwell, the Court upheld findings that no \"cause\" sufficient to\n\n 9 \"warrant relief from\" Rule 12's waiver provision was shown where \"the facts\n\n10 [underlying the challenge] were notorious and available to petitioners in the exercise\n\n11 of due diligence before the trial.\" 371 U.S. at 363. In Davis, the Court similarly upheld\n\n12 the finding of no \"cause\" where the belatedly challenged system had been in use \"for\n\n13 years,\" and \"[n]o reason ha[d] been suggested why petitioner or his attorney could\n\n14 not have ascertained all of the facts necessary to present objection to the court prior\n\n15 to trial.\" 411 U.S. at 243.\n\n16 We reach the same conclusions with respect to O'Brien's impermissible-\n\n17 delegation challenge, given the fundamental nature of the asserted defects. The\n\n18 contention that a federal grand jury was chosen through a process that was not\n\n\n 56\n\f 1 designed to draw from a cross-section of the community is a contention that the\n\n 2 ensuing indictments were issued by an entity that was not constitutionally authorized\n\n 3 to accuse any person of any crime; such a contention posits a defect in the institution\n\n 4 of the prosecution. Likewise, a challenge to Congress's delegation to members of the\n\n 5 Executive Branch of authorization to designate substances as controlled substances\n\n 6 posits that the targeted conduct has been designated a crime by an entity not\n\n 7 constitutionally authorized to say that any person may be prosecuted for that\n\n 8 conduct. A prosecution for conduct that has been defined as criminal only by an\n\n 9 entity without legitimate authorization to do so would be defective either in its\n\n10 institution or in its failure to charge a cognizable offense. If a defendant wishes to\n\n11 assert such a flaw, he must make his motion prior to trial if the basis for his assertion\n\n12 is then reasonably available.\n\n13 In the present case, O'Brien's trial began on July 20, 2015. His claim that\n\n14 methylone had been unconstitutionally designated a controlled substance was not\n\n15 asserted prior to trial; it was not raised until November 2016, more than a year after\n\n16 he had been tried and found guilty of the charges against him. It is clear that the facts\n\n17 on which his motion was premised had been available to him throughout his pretrial\n\n18 period. As to the delegation process itself, the CSA, in which Congress authorized\n\n\n 57\n\f 1 the Attorney General to, inter alia, add substances to controlled substance schedules\n\n 2 under 21 U.S.C. § 811(a), was enacted in 1970, see Pub. L. 91-513, 84 Stat. 1242\n\n 3 (codified at 21 U.S.C. § 801 et seq.). The Attorney General's regulations delegating\n\n 4 authority to the DEA to schedule controlled substances on a temporary basis were\n\n 5 promulgated in 1990. See 28 C.F.R. § 0.100(b) (1990). And the particulars of the\n\n 6 delegation process were described in detail by the Supreme Court in 1991 in Touby\n\n 7 v. United States, 500 U.S. 160, 162 (1991), which rejected an impermissible-delegation\n\n 8 challenge to convictions for manufacture and conspiracy to manufacture\n\n 9 4-methylaminorex, more commonly known as \"Euphoria.\"\n\n10 The designation of methylone as a controlled substance occurred well\n\n11 before O'Brien's October 29, 2013 arrest in this case. Notice of Intent to designate\n\n12 methylone as such a substance temporarily was published in the Federal Register on\n\n13 September 8, 2011, see 76 Fed. Reg. 55616; Notice of Proposed Rulemaking to make\n\n14 its placement in Schedule I permanent was published in the Federal Register on\n\n15 October 17, 2012, see 77 Fed. Reg. 63766; and the permanent scheduling of methylone\n\n16 was published in the Federal Register on April 12, 2013, see 78 Fed. Reg. 21818.\n\n17 O'Brien was thus arrested on the present charges of unlawfully dealing\n\n18 in methylone more than six months after the publication of notice that methylone was\n\n\n 58\n\f 1 permanently scheduled as a controlled substance, and more than two years after\n\n 2 publication of its temporary designation as a controlled substance. Thus, the\n\n 3 components of O'Brien's impermissible-delegation challenge were available to\n\n 4 O'Brien prior to his July 2015 trial. They were matters of public record.\n\n 5 The only excuse offered by O'Brien for the failure to make his delegation\n\n 6 challenge prior to trial was that he was proceeding pro se, stating that \"it's a lot for a\n\n 7 regular defendant to know and to learn\" (Sentencing Transcript January 20, 2017,\n\n 8 at 17). This explanation was specious at best. Even assuming that a defendant's pro\n\n 9 se status could be accepted as \"good cause\" for his failure to make a timely challenge\n\n10 to long-established procedures, that excuse would have no validity in this case.\n\n11 O'Brien's citation of his pro se status ignored the fact that he did not become pro se\n\n12 until about two months before his trial; for the preceding 19 months of the\n\n13 prosecution, O'Brien had been represented by counsel. There had been ample\n\n14 opportunity and expertise to allow for the making of an impermissible-delegation\n\n15 challenge prior to trial, if one had been warranted.\n\n\n\n\n16 2. Lack of Merit\n\n17 In Touby, the Supreme Court considered contentions that Congress, in\n\n\n 59\n\f 1 authorizing the Attorney General to add, remove, and transfer substances across the\n\n 2 controlled substance schedules under 21 U.S.C. § 811(a), \"unconstitutionally\n\n 3 delegate[d] legislative power to the Attorney General,\" 500 U.S. at 162, as well as\n\n 4 contentions that the Attorney General could not permissibly subdelegate that\n\n 5 authority to the DEA, see id. at 169. The Court rejected those contentions in the\n\n 6 context of the scheduling of 4-methylaminorex. See id. at 165-69. We see no\n\n 7 principled basis on which to reach a different conclusion with respect to O'Brien's\n\n 8 parallel challenges to the scheduling of methylone. Whether timely or not, those\n\n 9 challenges lacked merit.\n\n10 O'Brien also contends that publication of the intended and actual\n\n11 scheduling of methylone as a controlled substance in the Federal Register was\n\n12 insufficient to provide notice that dealing in methylone was unlawful. However,\n\n13 Congress requires that \"documents having general applicability and legal effect\"--\n\n14 which includes \"every document or order which prescribes a penalty\"--\"shall be\n\n15 published in the Federal Register,\" 44 U.S.C. § 1505(a); and it has provided that\n\n16 proper publication of a document in the Federal Register \"is sufficient to give notice\n\n17 of the contents of the document to a person subject to or affected by it,\" id. § 1507.\n\n18 Accordingly, when \"regulations, which are given the force of law, are published in\n\n\n 60\n\f 1 the Federal Register, . . . constructive notice of their contents is thus given all persons\n\n 2 affected by them.\" Yakus v. United States, 321 U.S. 414, 435 (1944); see, e.g., United States\n\n 3 v. Kelly, 874 F.3d 1037, 1048 (9th Cir. 2017) (after making the requisite findings, the\n\n 4 DEA temporarily scheduled ethylone, and \"[w]hen the DEA filed the Notice and\n\n 5 Order in the Federal Register, Kelly received fair notice that ethylone was a controlled\n\n 6 substance\" (internal quotation marks omitted), cert. denied, 138 S. Ct. 2038 (2018)).\n\n 7 As set out above, the intended and actual scheduling of methylone as a\n\n 8 controlled substance were published in the Federal Register. We thus reject O'Brien's\n\n 9 lack-of-notice argument.\n\n10 We note also that, as discussed in Part II.B. above, the statutory\n\n11 provisions under which O'Brien was prosecuted made his conduct unlawful only if\n\n12 he \"knew\" he was dealing with a controlled substance. There is no dispute that\n\n13 O'Brien knew that he was dealing in methylone; and, as discussed, the properly\n\n14 instructed jury found beyond a reasonable doubt, based on ample evidence, that\n\n15 O'Brien knew methylone was a controlled substance.\n\n\n\n\n 61\n\f1 CONCLUSION\n\n\n\n\n2 We have considered all of O'Brien's contentions on this appeal and have\n\n3 found them to be without merit. The judgment of the district court is affirmed.\n\n\n\n\n 62\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Appellee, v. Michael O'BRIEN, AKA Jeremy Soto, AKA Stephen Conte, AKA George Manolas, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-06-07\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17-2087-cr\\n USA v. O'Brien\\n\\n\\n\\n 1 UNITED STATES COURT OF APPEALS\\n\\n 2 FOR THE SECOND CIRCUIT\\n\\n 3 ------\\n\\n 4 August Term, 2018\\n\\n 5 (Argued: November 28, 2018 Decided: June 7, 2019)\\n\\n 6 Docket No. 17-2087-cr\\n\\n 7 _________________________________________________________\\n\\n 8 UNITED STATES OF AMERICA,\\n\\n 9 Appellee,\\n\\n10 - v. -\\n\\n11 MICHAEL O'BRIEN, AKA Jeremy Soto, AKA Stephen Conte, AKA\\n12 George Manolas,\\n\\n13 Defendant-Appellant.*\\n14 _________________________________________________________\\n\\n15 Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.\\n\\n16 Appeal from a judgment of the United States District Court for the\\n\\n\\n\\n * The Clerk of Court is directed to amend the official caption to conform with\\n the above.\\n\\f 1 Eastern District of New York, Roslynn R. Mauskopf, Judge, convicting defendant of\\n\\n 2 importing and possessing with intent to distribute methylone and anabolic steroids,\\n\\n 3 see 21 U.S.C. §§ 952(b), 960(b)(3), 960(b)(5), 841(a)(1), 841(b)(1)(C), and 841(b)(1)(E),\\n\\n 4 and conspiring to do so, see id. §§ 963 and 846; and of operating a stash house, see id.\\n\\n 5 §§ 841(a)(1), 856(a)(1) and 856(b). On appeal, defendant principally challenges (a) the\\n\\n 6 denial of his pretrial motion to suppress evidence on the ground that any statements\\n\\n 7 or consent were unknowing and involuntary because he was incapacitated by being\\n\\n 8 in withdrawal from an addictive substance, and (b) the sufficiency of the trial\\n\\n 9 evidence to establish that he knew what he was dealing with was a controlled\\n\\n10 substance. He also challenges the denial of his posttrial motion to dismiss the\\n\\n11 indictment on the grounds that methylone was designated a controlled substance\\n\\n12 pursuant to an unconstitutional delegation of Congressional power to the United\\n\\n13 States Attorney General, and that the designation process--publication in the Federal\\n\\n14 Register--did not constitute notice sufficient to afford due process. We find no merit\\n\\n15 in his contentions.\\n\\n16 Affirmed.\\n\\n17 MARGARET LEE, Assistant United States Attorney,\\n18 Brooklyn, New York (Richard P. Donoghue, United\\n19 States Attorney for the Eastern District of New York,\\n20 Amy Busa, Assistant United States Attorney,\\n21 Brooklyn, New York, on the brief), for Appellee.\\n\\n 2\\n\\f 1 SUSAN G. KELLMAN, Brooklyn, New York (Sarah\\n 2 Kunstler, Offices of Susan G. Kellman, Brooklyn,\\n 3 New York, on the brief), for Defendant-Appellant.\\n\\n\\n\\n\\n 4 KEARSE, Circuit Judge:\\n\\n 5 Defendant Michael O'Brien appeals from a judgment entered in the\\n\\n 6 United States District Court for the Eastern District of New York following a jury trial\\n\\n 7 before Roslynn R. Mauskopf, Judge, convicting him of five drug trafficking offenses,\\n\\n 8 to wit, importing methylone and anabolic steroids, and conspiring to do so, in\\n\\n 9 violation of 21 U.S.C. §§ 952(b), 960(b)(3), 960(b)(5), and 963 (Counts Two and One);\\n\\n10 possessing with intent to distribute those substances, and conspiring to do so, in\\n\\n11 violation of id. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(E), and 846 (Counts Four and\\n\\n12 Three); and operating a stash house, in violation of id. §§ 841(a)(1), 856(a)(1), and\\n\\n13 856(b) (Count Five); and sentencing him principally to 144 months' imprisonment, to\\n\\n14 be followed by a five-year term of supervised release. On appeal, O'Brien contends\\n\\n15 principally (a) that the district court erred in denying his pretrial motion to suppress,\\n\\n16 on Fourth and Fifth Amendment grounds, his postarrest statements and evidence\\n\\n17 seized from his apartments, arguing that his statements and any consents to search\\n\\n\\n\\n 3\\n\\f 1 were unknowing and involuntary because he was incapacitated by his addiction to\\n\\n 2 and withdrawal from a human growth hormone called Gamma-Hydroxybutyrate\\n\\n 3 (\\\"GHB\\\"); and (b) that the evidence at trial was insufficient to establish that he knew\\n\\n 4 the substances he was importing and possessing for distribution were controlled\\n\\n 5 substances. He also contends that the designation of methylone as a controlled\\n\\n 6 substance, making trafficking in that substance unlawful, was implemented through\\n\\n 7 an unconstitutional delegation of Congress's legislative power to the United States\\n\\n 8 Attorney General, and that the designation process--publication in the Federal\\n\\n 9 Register--did not constitute notice sufficient to afford due process. Finding no merit\\n\\n10 in his contentions, we affirm the judgment.\\n\\n\\n\\n\\n11 I. BACKGROUND\\n\\n\\n\\n\\n12 The present prosecution had its origin in seizures on September 20, 2013,\\n\\n13 by United States Customs and Border Protection (\\\"CBP\\\") officers, of three packages\\n\\n14 at the mail facility of John F. Kennedy International Airport, each addressed to a\\n\\n15 different person--none of them O'Brien--at the locations of different mailbox stores\\n\\n16 in Brooklyn, New York. Each package was field-tested and found to contain\\n\\n\\n 4\\n\\f 1 approximately one kilogram of methylone (commonly referred to as \\\"Molly\\\"). CBP\\n\\n 2 informed agents of Homeland Security Investigation (\\\"HSI\\\"), who took possession of\\n\\n 3 the packages.\\n\\n 4 HSI agents replaced the methylone in each intercepted package with a\\n\\n 5 sham substance, and they conducted controlled deliveries on September 23. One of\\n\\n 6 the addressees, Kimberly Ruud, arrived at the mailbox store to which a seized\\n\\n 7 package had been sent to a different addressee; she picked up that package, along\\n\\n 8 with a nonintercepted package that was addressed to her, and began to drive away.\\n\\n 9 Ruud was stopped and arrested. She consented to a search of her car. In addition to\\n\\n10 the two packages she had just collected, which were in the car's passenger area,\\n\\n11 agents found, inter alia, four packages in the trunk and two cellphones. Although the\\n\\n12 labels on the packages identified their respective contents as various uncontrolled\\n\\n13 substances, the six packages contained a total of nearly three kilograms of methylone\\n\\n14 and nearly three kilograms of anabolic steroids. An ensuing search of Ruud's\\n\\n15 cellphones revealed a series of communications on September 23 with a contact listed\\n\\n16 as \\\"Big,\\\" who was eventually identified as O'Brien.\\n\\n\\n\\n\\n 5\\n\\f 1 A. The October 10, 2013 Arrest of O'Brien\\n\\n 2 On October 10, 2013, pursuant to a 2011 New York State bench warrant\\n\\n 3 issued by the Suffolk County Superior Court (\\\"county court\\\") for the arrest of O'Brien\\n\\n 4 on a firearms charge on which he had pleaded guilty but had become a fugitive,\\n\\n 5 O'Brien was arrested by members of a state-and-federal task force that included HSI\\n\\n 6 Special Agent Vincent Marino and Special Agent Edward Alahverdian of the United\\n\\n 7 States Drug Enforcement Administration (\\\"DEA\\\"). The arrest warrant was executed\\n\\n 8 at O'Brien's apartment on College Point Boulevard in Queens, New York (the \\\"College\\n\\n 9 Point Apartment\\\" or \\\"Apartment\\\").\\n\\n10 As set out in greater detail in Part I.B. below, after O'Brien was arrested\\n\\n11 and handcuffed, he was given Miranda warnings by Alahverdian. O'Brien said that\\n\\n12 he understood his rights and was willing to answer some questions; and when\\n\\n13 Alahverdian asked whether the agents could search the apartment, O'Brien said they\\n\\n14 could look anywhere they wanted. Searching the Apartment pursuant to that\\n\\n15 consent, the agents found, inter alia, several kinds of drug paraphernalia, including\\n\\n16 lists of anabolic steroid chemicals; vials of a liquid labeled \\\"Genzyme\\\" (a steroid brand\\n\\n17 name) and hundreds of sheets of additional \\\"Genzyme\\\" labels; currency-counting\\n\\n18 machines and more than $10,000 in cash; 18 cellphones and 12 laptop computers;\\n\\n\\n 6\\n\\f 1 identification documents in various names, along with blank identification cards and\\n\\n 2 an identification-card printer; applications and receipts for mailbox rentals at mailbox\\n\\n 3 stores throughout Brooklyn; 27 airway bills for packages mailed from China; and a\\n\\n 4 ledger with annotated lists of anabolic steroids, locations, and phone numbers for\\n\\n 5 pick-up.\\n\\n 6 In the meantime, O'Brien was driven to a police precinct in Suffolk\\n\\n 7 County by Alahverdian, Marino, and a Suffolk County police officer. During the\\n\\n 8 drive, O'Brien was talkative, stating that he made purchases of methylone and\\n\\n 9 anabolic steroids from China online (describing the brand and color of the computer\\n\\n10 he used for that operation), and explaining that he had people in the United States\\n\\n11 rent local mailboxes and collect the packages he was importing.\\n\\n12 After their arrival at the precinct, Alahverdian and Marino formally\\n\\n13 interviewed O'Brien. Marino stated that the agents knew O'Brien had a \\\"stash house\\\"\\n\\n14 in an apartment at 132-35 41st Road in Queens (\\\"41st Road\\\"), and asked for his\\n\\n15 consent to search it. After Marino read a Department of Homeland Security, U.S.\\n\\n16 Immigration and Customs Enforcement (\\\"DHS/ICE\\\") consent form aloud and gave\\n\\n17 it to O'Brien to read, O'Brien signed it. The form signed by O'Brien states as follows:\\n\\n18\\n\\n\\n 7\\n\\f 1 I, Michael O'Brien, have been informed by U.S. Immigration and Customs\\n 2 Enforcement (ICE) Special Agent Vincent Marino of my right to refuse to consent to\\n 3 a search of my property, described as: . . .\\n\\n 4 Computer, phones\\n 5 132-35 41st Rd Apt 5E\\n 6 40-22 College Pt. Blvd 3PHR\\n\\n 7 I have also been advised by ICE Special Agent Marino that,\\n 8 if I voluntarily consent to a search of this property, anything\\n 9 discovered during this search may be used against me in criminal,\\n10 civil, or administrative proceedings.\\n\\n11 I have decided to allow ICE Special Agents Vincent Marino\\n12 and Homeland Security Special Agents . . . to conduct a complete\\n13 search of my apartments, located at 40-22 College Point Blvd\\n14 PH3R / 132-35 41st Road, Queens Apt 5E. These ICE Special\\n15 Agents are authorized by me to take any letters, papers, materials\\n16 or other property which they may desire to examine.\\n\\n17 I hereby voluntarily and intentionally consent to allow ICE\\n18 to search my property. My consent is freely given and not the\\n19 result of any promises, threats, coercion or other intimidation. I\\n20 have read the above statement and understand my rights.\\n\\n21 (Consent To Search dated October 10, 2013 (O'Brien's \\\"Written Consent To Search\\\"\\n\\n22 (bolding in original)), attached to Affidavit of Michael O'Brien dated April 30, 2019\\n\\n23 [sic] (\\\"O'Brien Suppression Motion Aff.\\\"), in support of motion to suppress.)\\n\\n24 Based on this written consent, law enforcement agents searched the 41st\\n\\n25 Road apartment and found, inter alia, numerous pills, powders, and jugs of liquid,\\n\\n\\n\\n 8\\n\\f 1 and approximately 11 kilograms of methylone. In addition, pursuant to a search\\n\\n 2 warrant, HSI Special Agent Joshua Schottenfeld, who had participated in the search\\n\\n 3 of the College Point Apartment, searched the computer that O'Brien told Alahverdian\\n\\n 4 and Marino he used to order methylone and anabolic steroids from China. That\\n\\n 5 computer contained receipts and a web browser history of orders from a website\\n\\n 6 offering legal and illegal items, including narcotics.\\n\\n 7 After O'Brien signed the written consent form at the police precinct, he\\n\\n 8 was taken to the county court pursuant to the bench warrant issued for his arrest as\\n\\n 9 a fugitive. In that court proceeding, the prosecutor asked that bail be denied, noting\\n\\n10 that O'Brien apparently had access to large amounts of cash, as the search of his\\n\\n11 apartment at the time of his arrest found \\\"lots of pills\\\" and \\\"kilos of cocaine\\\" (People\\n\\n12 v. O'Brien, No. 2456-2009, Superior Court of the State of New York, County of Suffolk,\\n\\n13 October 10, 2013 (\\\"County Court Transcript\\\"), at 2-3). The court noted that it had\\n\\n14 issued the bench warrant for O'Brien's arrest in May 2011 and that O'Brien had\\n\\n15 remained a fugitive for more than two years, and it ruled that bail would thus be\\n\\n16 denied.\\n\\n17 O'Brien's attorney then informed the court that O'Brien needed medical\\n\\n18 attention because he was addicted to GHB. O'Brien himself stated that the full name\\n\\n\\n 9\\n\\f 1 of GHB was Gamma-Hydroxybutyrate and explained its nature and effects. The\\n\\n 2 proceeding ended with the court's scheduling O'Brien's next appearance.\\n\\n 3 Following that county court proceeding, O'Brien was admitted to a\\n\\n 4 nearby medical center, where he remained for five days, prior to being sent to the\\n\\n 5 Suffolk County Jail. Some days thereafter, he was released on bail.\\n\\n 6 On October 29, 2013, O'Brien was charged in a one-count federal criminal\\n\\n 7 complaint with conspiracy to import methylone and was arrested by federal\\n\\n 8 authorities. He was indicted in November on the present five narcotics trafficking\\n\\n 9 counts.\\n\\n\\n\\n\\n10 B. The Suppression Motion\\n\\n11 In April 2014, O'Brien moved to suppress his October 10, 2013 postarrest\\n\\n12 statements and the items seized in the searches of his apartments. His supporting\\n\\n13 affidavit stated, inter alia, that when he was arrested on October 10, he was under the\\n\\n14 influence of GHB and was addicted to it; that he had so advised the arresting agents;\\n\\n15 and that he repeatedly told them that if he was not promptly taken to a medical\\n\\n16 facility he was in danger of detoxification death. (See O'Brien Aff. ¶ 3.) O'Brien stated\\n\\n17 that he did not remember receiving Miranda warnings on October 10, and that no one\\n\\n\\n 10\\n\\f 1 read those rights to him that day (see id. ¶ 10); that he \\\"ha[d] no recollection of giving\\n\\n 2 [his] consent to law enforcement to search\\\" the College Point Apartment or the 41st\\n\\n 3 Road apartment (id. ¶ 6; see id. ¶ 5); and that because he was in withdrawal from GHB\\n\\n 4 at the time of his arrest, he lacked the capacity to waive his Miranda rights or to\\n\\n 5 consent to searches (see id. ¶ 10). He stated that the signature on the Written Consent\\n\\n 6 To Search form was not his. (See id. ¶ 6.)\\n\\n 7 The district court conducted a hearing on O'Brien's suppression motion\\n\\n 8 on August 13 and 22, 2014. The government called as witnesses Alahverdian and\\n\\n 9 Schottenfeld; O'Brien testified and called Marino as a witness.\\n\\n\\n\\n\\n10 1. The Testimony of Alahverdian\\n\\n11 Alahverdian testified that when he first saw O'Brien on October 10, 2013,\\n\\n12 O'Brien had already been arrested and was in handcuffs, sitting on a couch in his\\n\\n13 living room. Also in the living room was Marino. Alahverdian approached and\\n\\n14 introduced himself to O'Brien, who seemed eager to talk to the two agents.\\n\\n15 Alahverdian said O'Brien would \\\"have to wait\\\" until he received Miranda warnings\\n\\n16 and would have to deal with the local authorities about the state warrant on which\\n\\n17 he had just been arrested. (Hearing Transcript, August 13, 2014 (\\\"Aug. 13 Tr.\\\"),\\n\\n\\n 11\\n\\f 1 at 11-12; see also id. at 14 (Alahverdian told O'Brien \\\"we just have to get through this\\n\\n 2 and then I'm willing to listen to anything you have to say\\\").)\\n\\n 3 Alahverdian, with Marino present, read the Miranda warnings aloud and\\n\\n 4 asked whether O'Brien understood and whether he was willing to answer some\\n\\n 5 questions; O'Brien said yes to both and seemed a little excited. (See id. at 14-15.)\\n\\n 6 When Alahverdian asked whether the agents could search the apartment, \\\"[O'Brien]\\n\\n 7 said, yeah, you can look anywhere you want.\\\" (Id. at 16.)\\n\\n 8 After receiving this oral consent to search, Alahverdian relayed it to his\\n\\n 9 supervising officer and then returned to the living room; at that point, O'Brien told\\n\\n10 Alahverdian and Marino that he was addicted to GHB, that he ingested it daily, and\\n\\n11 he asked to be allowed to take some immediately. (See id. at 17 (\\\"He asked for a cup\\n\\n12 of GHB.\\\").) O'Brien told them that if he did not get his dosage of GHB \\\"he would get\\n\\n13 sick\\\"; but he did not say he needed to be taken to a hospital. (Id. at 46.) Alahverdian\\n\\n14 and Marino told O'Brien that he could not be given GHB because it is a controlled\\n\\n15 substance. (See id. at 17-18, 46.) O'Brien then asked if he could take a Valium pill and\\n\\n16 told Marino where to find one. Alahverdian, after briefly stepping away again to\\n\\n17 confer with his supervisor and returning to the living room, inferred that Marino had\\n\\n18 allowed O'Brien to take a Valium because he heard O'Brien thanking Marino. (See id.\\n\\n\\n 12\\n\\f 1 at 18, 47; see also Hearing Transcript, August 22, 2014 (\\\"Aug. 22 Tr.\\\"), at 12-13.)\\n\\n 2 Alahverdian testified that during the time he and Marino were in the\\n\\n 3 College Point Apartment with O'Brien, O'Brien was \\\"very talkative\\\" and \\\"was very\\n\\n 4 alert.\\\" (Aug. 13 Tr. 18; see id. at 29.) O'Brien was not slurring his words in any way,\\n\\n 5 and Alahverdian saw no indication that he was undergoing withdrawal. (See id.\\n\\n 6 at 19.) During the drive from the Apartment to the police precinct in Suffolk County,\\n\\n 7 O'Brien continued to be talkative, describing \\\"using his black Acer computer\\\" to\\n\\n 8 \\\"order[] Molly\\\" on \\\"websites like Ali Baba and Silk Road,\\\" and have it shipped to the\\n\\n 9 United States. (Id. at 20-21.)\\n\\n10 When they arrived at the precinct, O'Brien asked to have a cigarette and\\n\\n11 was allowed to smoke before entering the building. He thanked Alahverdian and\\n\\n12 Marino for treating him with courtesy and consideration. (See Aug. 13 Tr. 21-22.)\\n\\n13 After entering the precinct, Alahverdian, Marino, and O'Brien went into an interview\\n\\n14 room, where O'Brien was asked for consent to search his 41st Road stash pad. The\\n\\n15 DHS/ICE consent form was read to him, listing items and places to be searched;\\n\\n16 O'Brien did not ask any questions or give any indication that he did not understand.\\n\\n17 (See id. at 26.) He was given the form to read and was told that he had the right to\\n\\n18 refuse consent; he signed the form without indicating that he wished to refuse. (See,\\n\\n\\n 13\\n\\f 1 e.g., id. at 26-29, 52-54, 63-64; see also id. at 54 (after looking at the consent-to-search\\n\\n 2 form, O'Brien signed it, saying \\\"yeah, it's okay or yes\\\").\\n\\n 3 When Alahverdian asked O'Brien what the agents were likely to find in\\n\\n 4 searching the 41st Road premises, O'Brien said there might be some steroids and that\\n\\n 5 there were about 10 kilograms of methylone. When Alahverdian sought details of the\\n\\n 6 operation, O'Brien said that, per kilo, he was buying methylone for about $1,900 and\\n\\n 7 selling it for $30,000. He again described ordering methylone online from China,\\n\\n 8 having it sent to local mailbox store addresses, and then having his people pick up\\n\\n 9 the packages for him. (See Aug. 13 Tr. 27, 29-30.)\\n\\n10 Alahverdian testified that after leaving the College Point Apartment,\\n\\n11 O'Brien had made no further mention of his addiction to GHB nor any mention of\\n\\n12 symptoms of withdrawal. (See id. at 27-29, 31-32, 61.) During his entire conversation\\n\\n13 with Alahverdian and Marino, O'Brien was talkative and pleasant and appeared to\\n\\n14 have no difficulty focusing on the agents' questions, or understanding them, or\\n\\n15 communicating. Alahverdian did not notice anything unusual about O'Brien's\\n\\n16 behavior. (See id. at 32.)\\n\\n\\n\\n\\n 14\\n\\f 1 2. The Testimony of Schottenfeld\\n\\n 2 Schottenfeld testified principally about the evidence found on O'Brien's\\n\\n 3 computer (described in Part I.A. above) and about two recorded statements O'Brien\\n\\n 4 made to persons other than Alahverdian and Marino. First, Schottenfeld read the\\n\\n 5 following part of the October 10 county court transcript that followed the court's\\n\\n 6 refusal to grant O'Brien bail and encompassed the entire discussion of O'Brien's\\n\\n 7 physical condition:\\n\\n 8 Ms. Gearrity [O'Brien's then-attorney]: Judge, he has a\\n 9 serious GHB addiction, so we're going to need medical attention.\\n\\n10 The Court: All right. Medical attention. What's G.H.B.?\\n\\n11 The Defendant: Um, your Honor, it's--it's detrimental, it's\\n12 fatal.\\n\\n13 Ms. Gearrity: What's the name of it?\\n\\n14 The Defendant: Gamma hydroxybutyrate. It's a chemical\\n15 that goes in the body and reduces your dopamine levels. When\\n16 coming off of it, it will actually start firing dopamine, increasing\\n17 my heart rate and I'll go into cardiac arrest if I don't get the proper\\n18 treatment.\\n\\n19 The Court: All right. I'll mark it medical attention.\\n\\n20 (Aug. 13 Tr. 82 (see County Court Oct. 10 Transcript at 3-4).)\\n\\n\\n\\n\\n 15\\n\\f 1 Second, Schottenfeld testified that he had listened to consensually\\n\\n 2 recorded telephone calls made by O'Brien from the county jail. Schottenfeld\\n\\n 3 identified a \\\"CD [that] comes from the jail stating it's Mr. O'Brien\\\" (Aug. 13 Tr. 87),\\n\\n 4 which contained an October 16, 2013 conversation between O'Brien and a woman\\n\\n 5 later identified as his ex-fiancée (see Aug. 22 Tr. 68). The CD was introduced and\\n\\n 6 played for the court. (See Aug. 13 Tr. 83-84.) Although it does not appear that the\\n\\n 7 record contains a transcript of the CD, O'Brien's own testimony--on cross-examination\\n\\n 8 at the August 22 session of the suppression hearing--as to what he said in that\\n\\n 9 recorded conversation was, in part, as follows:\\n\\n10 Q. You told her that the agents came in, and they were like,\\n11 well, we don't actually have a search warrant for your house, so,\\n12 but we could get one. So you know, you want to let us look\\n13 around. And I said, go ahead, feel free, I said, go ahead take a look. Is\\n14 that correct?\\n\\n15 A. That's correct.\\n\\n16 Q. And is that an accurate reflection of what happened in your\\n17 apartment?\\n\\n18 A. I would say so.\\n\\n19 Q. That they told you, that they didn't have a search warrant,\\n20 and asked for permission to search and you said, go ahead; is that\\n21 correct?\\n\\n\\n\\n 16\\n\\f 1 A. That's correct.\\n\\n 2 (Aug. 22 Tr. 68-69 (emphases added).)\\n\\n\\n\\n\\n 3 3. The Testimony of Marino\\n\\n 4 Marino, called as a witness by O'Brien, testified principally as follows.\\n\\n 5 When Marino first saw O'Brien at the College Point Apartment on October 10, O'Brien\\n\\n 6 had already been handcuffed. (See Aug. 22 Tr. 6-7.) After Marino and Alahverdian\\n\\n 7 introduced themselves as federal officers, O'Brien responded \\\"Okay\\\" and said that he\\n\\n 8 was prepared to help, which Marino understood to mean that O'Brien sought to avoid\\n\\n 9 imprisonment by providing information. (See id. at 29.) Alahverdian then read\\n\\n10 O'Brien the Miranda warnings; O'Brien said he understood those rights. (See id. at 30.)\\n\\n11 O'Brien said he was willing to speak to the agents, and he orally gave consent for the\\n\\n12 search of the Apartment. (See id. at 10 (\\\"I asked him if we were okay to search and he\\n\\n13 said go right ahead.\\\").)\\n\\n14 After O'Brien \\\"had given [the agents] consent to search the apartment,\\n\\n15 . . . then he advised that he was addicted to the Ghb and the anabolic steroids.\\\" (Id.\\n\\n16 at 10.) O'Brien also \\\"advised [the agents] he was very eager to assist us in the\\n\\n17 investigations\\\" (id. at 11-12), and expressed his eagerness to stay out of jail, reiterating\\n\\n\\n 17\\n\\f 1 \\\"throughout the course of the day\\\" that \\\"in order to most help out law enforcement,\\\"\\n\\n 2 \\\"he would need to be out in the street\\\" (id. at 34).\\n\\n 3 As to his addiction, O'Brien said he had taken GHB that morning and\\n\\n 4 asked whether he could take more. When Marino replied that that would not be\\n\\n 5 permitted, O'Brien said that \\\"if that d[id]n't happen, [he] c[ould] get very sick\\\";\\n\\n 6 Marino testified, \\\"I don't know if he used the word 'die,' but\\\" it was either \\\"'sick' or\\n\\n 7 'die'.\\\" (Id. at 12.) O'Brien did not, however, say he was experiencing any symptoms\\n\\n 8 at that time (see id. at 32), and Marino understood him to be saying that he would\\n\\n 9 have problems in the future (see id. at 13). O'Brien asked, if he would not be allowed\\n\\n10 more GHB, whether Marino would let him have a Valium--and pointed to a pill next\\n\\n11 to a prescription bottle--explaining that Valium would help in \\\"counteracting\\\" the\\n\\n12 GHB (id. at 12). Marino testified that although it was certainly not standard\\n\\n13 procedure, he let O'Brien have a Valium pill because O'Brien seemed \\\"sincere.\\\" (Id.\\n\\n14 at 13 (\\\"It sounded like he was legitimate.\\\").)\\n\\n15 When O'Brien disclosed his GHB addiction, he did not elaborate and\\n\\n16 \\\"[h]e was not complaining of anything\\\"; \\\"[h]e was fine.\\\" (Id. at 17.) He was calm, was\\n\\n17 not slurring his words, and was having no difficulty speaking. (See id. at 30-32.) He\\n\\n18 also exhibited no difficulty in understanding the agents' questions, or focusing, or\\n\\n\\n 18\\n\\f 1 staying awake. (See id. 29, 39.) Although O'Brien's hands were \\\"slightly shaking\\\" at\\n\\n 2 the outset, Marino testified that he attributed that simply to O'Brien's being arrested;\\n\\n 3 he \\\"asked [O'Brien] a couple of times throughout the interview if he was feeling okay\\n\\n 4 and he said he was fine. . . . There was nothing out of the ordinary.\\\" (Id. at 33.)\\n\\n 5 There was no point in the day when O'Brien did not appear to be lucid,\\n\\n 6 or when he did not understand what was going on, or when the agents had any\\n\\n 7 difficulty communicating with him. (See id. at 36-37.) After the agents and O'Brien\\n\\n 8 left the Apartment and were on the way to the police precinct in Suffolk County,\\n\\n 9 O'Brien did not exhibit any symptoms of possible withdrawal or intoxication and was\\n\\n10 speaking freely (see id. at 34), giving the agents details about his drug importation\\n\\n11 operation.\\n\\n12 He advised that he had a black Acer computer that had on the\\n13 computer all his information from the purchases he made from\\n14 China because he was selling large amounts of Molly . . . . He said\\n15 that he also used websites such as Ali Baba and Silk Road and\\n16 there would be conversations and receipts on that computer. He\\n17 also admitted to having paid an individual [named] Wagner $200\\n18 for every time he picked up a box of Molly from a mailbox store\\n19 [that O'Brien had had him open] in [Wagner's] name.\\n\\n20 (Id. at 15-16.)\\n\\n\\n\\n\\n 19\\n\\f 1 In the interview room at the police precinct, Marino told O'Brien that the\\n\\n 2 agents knew about O'Brien's stash house at 41st Road: \\\"I said we knew about the\\n\\n 3 stash house and the location. I said I would like to search it. He said okay.\\\" (Id. at 19\\n\\n 4 (emphases added).) Asked what the agents would find in that search, O'Brien\\n\\n 5 responded, \\\"[m]ultiple vials of steroids and probably about 10 keys of Molly.\\\" (Id.;\\n\\n 6 see also Aug. 13 Tr. 30 (\\\"key\\\" is used as slang for kilogram).)\\n\\n 7 Marino then filled out the DHS/ICE consent form (quoted in full in Part\\n\\n 8 I.A. above), read it to O'Brien and went over it with him. Marino informed O'Brien\\n\\n 9 \\\"that he had a right to refuse to consent to search his computer, his phones, the\\n\\n10 apartment at 41st Road and the College Point Boulevard apartment.\\\" (Aug. 22 Tr. 21.)\\n\\n11 O'Brien did not in any way indicate that he wished to refuse consent. (See id. at 35.)\\n\\n\\n\\n\\n12 4. The Testimony of O'Brien\\n\\n13 O'Brien testified at the suppression hearing and largely denied that he\\n\\n14 had given the above consents to search. He said that when he met Marino, he\\n\\n15 immediately told the agents that they needed to get him to a hospital within four\\n\\n16 hours or he would die. He also testified that he told the agents of his need for\\n\\n17 medical attention three times during the approximately 20 minutes they were in the\\n\\n\\n 20\\n\\f 1 College Point Apartment, and that later that day he so informed the county court.\\n\\n 2 O'Brien testified that he remembered speaking to Marino, but he did not\\n\\n 3 remember speaking to, or even seeing, Alahverdian that day. (See Aug. 22 Tr. at 43,\\n\\n 4 63.) O'Brien did not remember, inter alia, receiving Miranda warnings (see id. at 45, 67)\\n\\n 5 or signing the DHS/ICE consent form attached to his Suppression Motion Affidavit\\n\\n 6 (see id. at 51). Notwithstanding his claimed inability to remember several events of\\n\\n 7 October 10, O'Brien said \\\"I can testify . . . , swear up and down,\\\" that \\\"I have never\\n\\n 8 had a conversation about th[e DHS/ICE] form.\\\" (Id.) O'Brien noted that his arrest on\\n\\n 9 October 10, 2013, was pursuant to a state warrant, and he testified that at \\\"[n]o time\\n\\n10 did [he] invite [Marino] to go collecting evidence on an outside case.\\\" (Id. at 44; see\\n\\n11 id. at 51 (\\\"The only consent that I gave, was to look around the College Point location,\\n\\n12 they were asking about guns. I told them there are no guns in this property. You can\\n\\n13 look around.\\\"); but see id. at 67 (O'Brien \\\"d[id]n't remember giving them consent to\\n\\n14 search [the College Point Apartment]\\\").)\\n\\n15 O'Brien denied signing the Written Consent To Search form at the police\\n\\n16 precinct as Marino and Alahverdian described. First, O'Brien testified that in fact he\\n\\n17 was not taken to a precinct but had instead been driven from the Apartment directly\\n\\n18 to the county courthouse. (See id. at 47.) In addition, he testified that he never gave\\n\\n\\n 21\\n\\f 1 a written consent to search. (See id. at 45, 53; see also O'Brien Aff. ¶ 6 (the \\\"signature\\\"\\n\\n 2 on the \\\"Consent to Search Form . . . . is not mine\\\").) However, he also testified to\\n\\n 3 having a \\\"fuzzy\\\" recollection of being visited by Marino and Alahverdian in the\\n\\n 4 hospital while he was \\\"in and out of\\\" a \\\"coma,\\\" and he \\\"deduce[d] that that is where\\n\\n 5 they had me sign the consent to search form\\\" (Aug. 22 Tr. 49-50).\\n\\n 6 O'Brien admitted that in the postarrest car ride from the College Point\\n\\n 7 Apartment he told the agents he had a black Acer computer at the Apartment. He\\n\\n 8 also admitted that he had in fact used the Ali Baba website; but he denied that he so\\n\\n 9 told the agents. (See id. at 75-76.) O'Brien also admitted that during that drive he told\\n\\n10 the agents about the 41st Road stash pad. \\\"I told them there were steroids there and\\n\\n11 . . . maybe some molly . . . .\\\" (Id. at 53.) However, he testified that \\\"at no time did the[\\n\\n12 agents] ask [him] for consent to search the [41st Road] apartment\\\" and that he \\\"never\\n\\n13 gave consent.\\\" (Id.)\\n\\n14 As to his physical condition, O'Brien testified that, although he could\\n\\n15 normally sleep 3-4 hours without being awakened by GHB withdrawal symptoms (see\\n\\n16 id. at 42, 77-78), on October 10 he began experiencing GHB withdrawal symptoms\\n\\n17 when he was being taken down in the elevator from the Apartment, which was some\\n\\n18 30-35 minutes after he had last taken GHB (see, e.g., id. at 60 (his \\\"arrest . . . was about\\n\\n\\n 22\\n\\f 1 15 minutes [after his] last dose\\\")). He said he was taken to the county courthouse, a\\n\\n 2 trip that took about 1½ hours, and that when they arrived he could not walk without\\n\\n 3 staggering (see id. at 47). O'Brien testified \\\"seizure was running through my body, my\\n\\n 4 entire body was shaking, my hands shaking\\\" \\\"as [he was] standing before the Suffolk\\n\\n 5 County Judge\\\" (id. at 58).\\n\\n 6 O'Brien acknowledged that his then-attorney said nothing to the court\\n\\n 7 early in the hearing about his addiction or any withdrawal symptoms. It was not\\n\\n 8 until the court said that bail would be denied that she raised that subject. (See Aug.\\n\\n 9 22 Tr. 79-80.) He said that after the county court denied him bail,\\n\\n10 I asked for medical attention there, in the Court, in the courtroom.\\n11 Judge Efman had to finish my sentence for me as I was asking for\\n12 medical attention, because I was seizure-ing. I could not come out\\n13 with the words. Judge finished the sentence, you need medical\\n14 attention, I said, yes, sir.\\n\\n15 (Id. at 48.) He testified that \\\"despite the clarity of the [county court] transcripts,\\\" he\\n\\n16 \\\"had a massive seizure\\\" on October 10 \\\"right there in open court.\\\" (Id. at 47-48.)\\n\\n17 While claiming to have been unable to find the words \\\"medical\\n\\n18 attention,\\\" O'Brien did not dispute that he had been able to tell the court that GHB\\n\\n19 stood for \\\"Gamma Hydroxybutyrate\\\" and to explain its chemical effects on the body\\n\\n20 (id. at 80; see id. at 81-82). O'Brien admitted that had been \\\"able to understand\\\" with\\n\\n\\n 23\\n\\f 1 \\\"no difficulty . . . what was going on\\\" in that proceeding; and he acknowledged that\\n\\n 2 the transcript contains no indication that he was shaking, staggering, falling, having\\n\\n 3 a seizure, or unable to articulate. (Id. at 81-82.)\\n\\n\\n\\n\\n 4 5. The District Court's Decision\\n\\n 5 In a decision announced on the record on March 20, 2015, the district\\n\\n 6 court denied O'Brien's suppression motion. (See Status Conference Transcript March\\n\\n 7 20, 2015 (\\\"Suppression Motion Decision\\\").) The court concluded, based on the totality\\n\\n 8 of the circumstances credibly shown by the record, that the government had carried\\n\\n 9 its burden of proving that on October 10, 2013, O'Brien made the various statements\\n\\n10 attributed to him pursuant to valid Miranda waivers; that the searches at issue were\\n\\n11 authorized by O'Brien's voluntary consent, first oral and then written; and that while\\n\\n12 the Written Consent To Search was not a model of clarity, even read in the light most\\n\\n13 favorable to O'Brien it encompassed everything found in his two apartments,\\n\\n14 including his computers and phones.\\n\\n15 The court found that the agents who testified at the suppression hearing\\n\\n16 were credible witnesses, based principally on their demeanor, their experience, and\\n\\n17 the content of their testimony. In addition, the court found that Marino's credibility\\n\\n\\n 24\\n\\f 1 was enhanced by his candor in admitting that he had allowed O'Brien to take a\\n\\n 2 Valium, an admission that \\\"was . . . not necessarily in [Marino's] best interest,\\\" id. at 4.\\n\\n 3 The court found that Miranda warnings were properly administered at the College\\n\\n 4 Point Apartment; it credited the testimony of Alahverdian and Marino that O'Brien\\n\\n 5 appeared to be calm, lucid, talkative, and \\\"cogently answering questions, giving the\\n\\n 6 agents detailed information\\\" in \\\"wanting to help get himself out of this situation,\\\" and\\n\\n 7 that the agents saw no signs that O'Brien was undergoing withdrawal. Id. at 8.\\n\\n 8 The district court rejected O'Brien's claim that he had been incapable of\\n\\n 9 consenting to searches of his properties on October 10 because of withdrawal from\\n\\n10 GHB. It found that his testimony lacked credibility \\\"in significant part, if not in\\n\\n11 whole,\\\" id. at 4; see id. at 5-6 (\\\"much of his testimony was belied by every other piece\\n\\n12 of evidence in the case,\\\" including being inconsistent with \\\"his premotion affidavit\\\"\\n\\n13 and with \\\"the jail call that he made to his girlfriend\\\"). The court also noted that the\\n\\n14 transcript of O'Brien's October 10 appearance in county court showed that O'Brien\\n\\n15 was in control of his faculties [and] was explaining in detail to\\n16 Judge Ef[]man the potential [e]ffects of GHB withdrawal . . .\\n17 [O'Brien] was being his own very effective advocate . . . which\\n18 demonstrates now probably hours after [his] last hit of GHB that\\n19 he was not suffering in any way, shape, or form from any type . . .\\n20 of withdrawal that could affect his ability to knowingly and\\n21 voluntarily waive his Miranda rights or consent to any of the\\n22 searches.\\n\\n 25\\n\\f 1 Id. at 8-9. The court rejected as \\\"incredible\\\" O'Brien's assertion that he had a seizure\\n\\n 2 right after the court reporter stopped recording the proceedings. Id. at 9.\\n\\n 3 The court also found \\\"no evidence in the hospital records to corroborate\\n\\n 4 [O'Brien's] story\\\" that he had a seizure, went into a coma, and was largely\\n\\n 5 unconscious for the next several days. Id. at 10. It noted that those medical records\\n\\n 6 themselves commented \\\"that his stay was, quote, unremarkable.\\\" Id. The court found\\n\\n 7 that O'Brien's \\\"notion that the consent form was signed at the hospital while [he] was\\n\\n 8 in a coma\\\" was belied by all of the other evidence in the case, as well as being\\n\\n 9 \\\"completely implausible.\\\" Id. at 5.\\n\\n10 In sum, the district court stated, \\\"I find that the [e]ffects of GHB,\\n\\n11 whatever they were on the defendant, did not in any way undermine the defendant's\\n\\n12 knowing and voluntary consent to search, the oral consent at College Point, and the\\n\\n13 written consent for both College Point and 41st Road, or the waiver of his Miranda\\n\\n14 rights,\\\" id. at 10.\\n\\n\\n\\n\\n15 C. The Trial, and O'Brien's Posttrial Motions\\n\\n16 In May 2015, with the start of his trial about two months away, O'Brien,\\n\\n17 who had been represented by counsel throughout the pretrial proceedings, elected\\n\\n\\n 26\\n\\f 1 to represent himself at trial. The court, after conducting a Faretta inquiry, see Faretta\\n\\n 2 v. California, 422 U.S. 806, 835 (1975), allowed him to proceed pro se, with standby\\n\\n 3 counsel. On July 28, 2015, the sixth day of trial, the jury found O'Brien guilty on all\\n\\n 4 five of the counts against him.\\n\\n 5 After the jury verdict, O'Brien decided that he no longer wanted to\\n\\n 6 proceed pro se, and counsel was appointed to represent him. However, on August 11,\\n\\n 7 2015, O'Brien again decided that he wanted to proceed pro se; and again, after\\n\\n 8 appropriate Faretta warnings, he was allowed to do so with standby counsel. In this\\n\\n 9 new pro se period, O'Brien unsuccessfully moved for acquittal on the ground that the\\n\\n10 evidence was insufficient to show that he had any connection to the 41st Road\\n\\n11 apartment in which, inter alia, 11 kilograms of methylone had been found. Thereafter,\\n\\n12 while still pro se, O'Brien also moved, as discussed in Part II.C. below, for acquittal on\\n\\n13 the ground that methylone was designated a controlled substance pursuant to an\\n\\n14 unconstitutional delegation of Congress's legislative power. That motion too was\\n\\n15 denied.\\n\\n16 In June 2017, O'Brien decided that he wished to be represented by\\n\\n17 counsel again, and counsel was appointed to represent him in connection with\\n\\n18 sentencing.\\n\\n\\n 27\\n\\f 1 II. DISCUSSION\\n\\n\\n\\n\\n 2 On appeal, O'Brien principally challenges (A) the district court's denial\\n\\n 3 of his pretrial motion to suppress his postarrest statements and the physical evidence\\n\\n 4 that was seized, (B) the sufficiency of the trial evidence to show that he knew\\n\\n 5 methylone was a controlled substance, and (C) the denial of his posttrial motion to\\n\\n 6 dismiss the indictment on the ground that the process that led to the designation of\\n\\n 7 methylone as a controlled substance was unconstitutional. For the reasons that\\n\\n 8 follow, we reject all of his contentions.\\n\\n\\n\\n\\n 9 A. The Denial of O'Brien's Motion To Suppress\\n\\n10 O'Brien contends that his October 10, 2013 postarrest statements should\\n\\n11 have been suppressed on the ground that, as he was undergoing withdrawal from\\n\\n12 GHB, he was incapable of knowingly or voluntarily waiving his Fifth Amendment\\n\\n13 privilege against self-incrimination. He contends that the physical evidence seized\\n\\n14 in searching his College Point and 41st Road apartments should have been\\n\\n15 suppressed as violative of his rights under the Fourth Amendment on the ground that\\n\\n16 he did not give voluntary consent for those searches, either because of his claimed\\n\\n\\n 28\\n\\f 1 incapacitation by GHB withdrawal or because, he contends, the actions of the agents\\n\\n 2 were coercive and he was not informed of his right to refuse consent to search.\\n\\n 3 In considering challenges to the denial of a suppression motion, we\\n\\n 4 review the district court's conclusions of law de novo and its findings of fact for clear\\n\\n 5 error. See, e.g., United States v. Medunjanin, 752 F.3d 576, 584 (2d Cir.) (\\\"Medunjanin\\\"),\\n\\n 6 cert. denied, 135 S. Ct. 301 (2014). In conducting clear-error review, \\\"[w]e are not\\n\\n 7 allowed to second-guess the [court's] credibility assessments, and '[w]here there are\\n\\n 8 two permissible views of the evidence, the [court's] choice between them cannot be\\n\\n 9 clearly erroneous.'\\\" Id. (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985));\\n\\n10 see, e.g., United States v. Isiofia, 370 F.3d 226, 232 (2d Cir. 2004) (\\\"Isiofia\\\"). In reviewing\\n\\n11 the denial of a defendant's motion to suppress, we view the record in the light most\\n\\n12 favorable to the government. See, e.g., United States v. Moore, 670 F.3d 222, 226 (2d Cir.\\n\\n13 2012) (denial of motion to suppress postarrest statements); United States v. Moreno, 701\\n\\n14 F.3d 64, 72 (2d Cir. 2012) (denial of motion to suppress evidence seized in a search\\n\\n15 premised on consent). We see no error in the district court's denial of O'Brien's\\n\\n16 suppression motion.\\n\\n\\n\\n\\n 29\\n\\f 1 1. O'Brien's Postarrest Statements\\n\\n 2 \\\"Once Miranda warnings have been given, if the individual indicates 'that\\n\\n 3 he wishes to remain silent, the interrogation must cease.'\\\" Medunjanin, 752 F.3d at 585\\n\\n 4 (quoting Miranda v. Arizona, 384 U.S. 436, 473-74 (1966)); see also Berghuis v. Thompkins,\\n\\n 5 560 U.S. 370, 386 (2010) (\\\"Police are not required to rewarn suspects from time to\\n\\n 6 time.\\\" (emphasis added)). In order to require that questioning cease, the accused\\n\\n 7 must assert his right affirmatively and unambiguously. See, e.g., id. at 381 (accused's\\n\\n 8 merely remaining \\\"[l]argely silent\\\" for some three hours did not invoke his privilege\\n\\n 9 to remain silent sufficiently to require that the officers refrain from questioning him\\n\\n10 (internal quotation marks omitted)). Where the accused \\\"did not\\\" say unambiguously\\n\\n11 either \\\"that he wanted to remain silent or that he did not want to talk with the police,\\n\\n12 . . . . he did not invoke his right to remain silent.\\\" Id. at 382.\\n\\n13 Nonetheless, an \\\"accused's statement during a custodial interrogation is\\n\\n14 inadmissable at trial unless the prosecution can establish that the accused 'in fact\\n\\n15 knowingly and voluntarily waived his [Miranda] rights' when making the statement.\\\"\\n\\n16 Id. (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). Such a \\\"waiver must be\\n\\n17 'voluntary in the sense that it was the product of a free and deliberate choice rather\\n\\n18 than intimidation, coercion, or deception,'\\\" and must be \\\"knowing[]\\\" in the sense that\\n\\n\\n 30\\n\\f 1 it was \\\"'made with a full awareness of both the nature of the right being abandoned and the\\n\\n 2 consequences of the decision to abandon it.'\\\" Berghuis, 560 U.S. at 382-83 (quoting\\n\\n 3 Moran v. Burbine, 475 U.S. 412, 421 (1986) (\\\"Burbine\\\") (emphasis ours)). \\\"'[A]s Miranda\\n\\n 4 holds, full comprehension of the rights to remain silent and request an attorney [is]\\n\\n 5 sufficient to dispel whatever coercion is inherent in the interrogation process.'\\\"\\n\\n 6 Berghuis, 560 U.S. at 382 (quoting Burbine, 475 U.S. at 427).\\n\\n 7 The waiver need not have been express; \\\"courts can infer a waiver of\\n\\n 8 Miranda rights 'from the actions and words of the person interrogated.'\\\" Berghuis, 560\\n\\n 9 U.S. at 387 (quoting Butler, 441 U.S. at 373). The prosecution need prove waiver only\\n\\n10 \\\"by a preponderance of the evidence,\\\" and it may be inferred \\\"from all the\\n\\n11 circumstances.\\\" Berghuis, 560 U.S. at 384. \\\"[A] suspect who has received and\\n\\n12 understood the Miranda warnings, and has not invoked his Miranda rights, waives the\\n\\n13 right to remain silent by making an uncoerced statement to the police.\\\" Id. at 388-89.\\n\\n14 In the present case, as described in Part I.B.5. above, the district court--\\n\\n15 crediting the hearing testimony of Alahverdian and Marino, as it was entitled to do--\\n\\n16 found that proper Miranda warnings were administered to O'Brien at the College\\n\\n17 Point Apartment, that he understood his rights, and that he knowingly and\\n\\n18 voluntarily waived them. The finding as to O'Brien's comprehension of the Miranda\\n\\n 31\\n\\f 1 warnings was supported by, inter alia, the agents' testimony that O'Brien was alert,\\n\\n 2 focused, and never evinced any difficulty understanding the agents or\\n\\n 3 communicating with them, and that he said he understood those rights when they\\n\\n 4 were read to him.\\n\\n 5 The evidence supporting the finding that O'Brien's ensuing statements\\n\\n 6 were voluntary included the testimony of the agents, described in Parts I.B.1. and\\n\\n 7 I.B.3. above, that (a) after receiving his Miranda warnings O'Brien said he was willing\\n\\n 8 to talk with the agents, (b) he had in fact expressed eagerness to provide them with\\n\\n 9 information immediately upon meeting them and was temporarily halted only\\n\\n10 because Alahverdian insisted on giving him Miranda warnings first, and (c) after\\n\\n11 receiving his Miranda warnings, O'Brien was extremely talkative and informative,\\n\\n12 freely giving the agents numerous details about the workings of his methylone and\\n\\n13 anabolic steroids operation. O'Brien himself has never asserted--in his affidavit, or\\n\\n14 in his suppression hearing testimony, or in his brief on appeal--that he ever told the\\n\\n15 agents he wished to remain silent or he did not want to talk with them.\\n\\n16 The court was not required to reach contrary conclusions on the basis of\\n\\n17 O'Brien's testimony that he did not remember being given Miranda warnings on\\n\\n18 October 10. The court found it clear that the warnings had in fact been given, see\\n\\n\\n 32\\n\\f 1 Suppression Motion Decision at 7; and O'Brien's professed inability to remember the\\n\\n 2 reading of Miranda warnings--which had interrupted his initial attempt to cooperate\\n\\n 3 in an effort to avoid imprisonment--was implausible at best. The court noted that\\n\\n 4 O'Brien's similar assertions that he did not remember giving permission that day to\\n\\n 5 search the College Point Apartment (see Aug. 22 Tr. 67; O'Brien Aff. ¶ 6) were not\\n\\n 6 credible in light of his recorded October 16 telephone call from jail to his ex-fiancée\\n\\n 7 (see Suppression Motion Decision at 5-6), in which O'Brien said that the agents had\\n\\n 8 asked for permission to search the Apartment and he had said, \\\"go ahead\\\" (Aug. 13\\n\\n 9 Tr. 83-84).\\n\\n10 The present record also fully supports the court's finding that O'Brien's\\n\\n11 ability to understand his Fifth Amendment rights and forgo them voluntarily was not\\n\\n12 impeded by his addiction to GHB. O'Brien's reliance on this Court's decision in\\n\\n13 United States v. Taylor, 745 F.3d 15 (2d Cir. 2014), for the contrary conclusion is\\n\\n14 misplaced. In that case, in which the defendant apparently had attempted to commit\\n\\n15 suicide by ingesting a large number of pills as he was arrested, we reversed the denial\\n\\n16 of a suppression motion where the record showed, inter alia, that \\\"Taylor was largely\\n\\n17 stupefied when he made his post-arrest statements, as confirmed by the testimony of the\\n\\n18 law enforcement agents and the pretrial services officer who interviewed him, and by the\\n\\n\\n 33\\n\\f 1 evaluations of staff psychologists at the Metropolitan Correctional Center,\\\" id. at 20\\n\\n 2 (emphases added); that \\\"all the witnesses support[ed] the account that Taylor was\\n\\n 3 actually slipping in and out of consciousness during [his first] interview, and immediately\\n\\n 4 before and after the [second] interview,\\\" id. at 26 n.3 (emphases added); and that it\\n\\n 5 was \\\"clear to the officers (as their testimony confirm[ed]) that Taylor was in and out of\\n\\n 6 consciousness while giving his statement, and in a trance or a stupor most of the time\\n\\n 7 when not actually asleep,\\\" id. at 25 (emphases added).\\n\\n 8 Here, in contrast, no one testified that O'Brien was somnolent or in a\\n\\n 9 stupor or not fully conscious during his dealings with Alahverdian and Marino. The\\n\\n10 agents testified squarely to the contrary. (See, e.g., Aug. 22 Tr. 34 (Marino: O'Brien\\n\\n11 did not appear to have had any difficulty staying awake); Aug. 13 Tr. 29\\n\\n12 (Alahverdian: O'Brien appeared to have no difficulty at all focusing on or\\n\\n13 understanding the agents' questions).) Alahverdian also testified that O'Brien was\\n\\n14 \\\"very talkative\\\" and \\\"very alert\\\" (Aug. 13 Tr. 18); and Marino testified that O'Brien\\n\\n15 was calm and coherent, speaking freely, and was lucid throughout the day (Aug. 22\\n\\n16 Tr. 12, 31-32, 36).\\n\\n17 O'Brien's own representations as to his condition were inconsistent. For\\n\\n18 example, in his affidavit, O'Brien said he was in withdrawal from GHB at the time of\\n\\n\\n 34\\n\\f 1 his arrest. (See O'Brien Aff. ¶ 10.) Yet there is no dispute that after O'Brien's arrest,\\n\\n 2 Alahverdian and Marino were in O'Brien's College Point Apartment for some 20\\n\\n 3 minutes before taking him downstairs for the drive to Suffolk County; and O'Brien\\n\\n 4 testified at the suppression hearing \\\"not until I went downstairs, that is when the\\n\\n 5 withdrawal began\\\" (Aug. 22 Tr. 65; see id. (\\\"Q. When you were speaking with agents\\n\\n 6 in your apartment, you were not going through withdrawal; is that correct? A. That's\\n\\n 7 correct.\\\")).\\n\\n 8 Both Alahverdian and Marino testified that O'Brien gave no appearance\\n\\n 9 of being in withdrawal--and said nothing about needing immediate medical\\n\\n10 attention--either at the Apartment or during the drive to the Suffolk County police\\n\\n11 precinct. (See, e.g., Aug. 13 Tr. 19, 27-29, 31-32, 46, 61; Aug. 22 Tr. 17, 32-34.) And\\n\\n12 although at the end of the interview at the police precinct O'Brien told the agents that\\n\\n13 he felt ill, the transcript of his ensuing county court proceeding--in which O'Brien\\n\\n14 himself explained the workings and effect of GHB, telling the court that the actual\\n\\n15 name of GHB is \\\"Gamma-Hydroxybutyrate\\\"--counters his claim that his cognitive\\n\\n16 powers were impaired. Indeed, at the suppression hearing O'Brien admitted that in\\n\\n17 the county court proceeding he in fact \\\"had no difficulty understanding what was\\n\\n18 going on\\\" (Aug. 22 Tr. 82).\\n\\n\\n 35\\n\\f 1 The district court discredited, as it was entitled to, O'Brien's claim that,\\n\\n 2 when he arrived at the county court, he was having a seizure. That claim is belied by\\n\\n 3 the undisputed facts that he and his attorney made no mention of his physical\\n\\n 4 condition until late in that court proceeding; and that when his attorney introduced\\n\\n 5 the fact of his addiction, there was no mention whatever of a seizure--either by the\\n\\n 6 attorney or by O'Brien himself. As the district court found, the county court\\n\\n 7 transcript of O'Brien's responses--some hours after his last ingestion of GHB--reveals\\n\\n 8 that O'Brien acted in that proceeding as a capable and articulate advocate for himself\\n\\n 9 and negates any inference that he was impaired when he agreed to speak with the\\n\\n10 agents earlier.\\n\\n11 In sum, the circumstances as a whole, as reflected in the present record,\\n\\n12 reveal no error either in the district court's findings that O'Brien received proper\\n\\n13 Miranda warnings, fully understood them, and voluntarily made statements to the\\n\\n14 agents, or in the court's conclusion that he thus waived his Fifth Amendment right to\\n\\n15 remain silent.\\n\\n\\n\\n\\n16 2. O'Brien's Consents To Search\\n\\n17 \\\"It is . . . well settled that one of the specifically established exceptions\\\"\\n\\n\\n 36\\n\\f 1 to the Fourth Amendment requirements that private property not be searched\\n\\n 2 without a search warrant issued upon probable cause \\\"is a search that is conducted\\n\\n 3 pursuant to consent.\\\" Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). When the\\n\\n 4 \\\"'prosecut[ion] seeks to rely upon consent to justify the lawfulness of a search, [it] has\\n\\n 5 the burden of proving that the consent was, in fact, freely and voluntarily given.'\\\" Id.\\n\\n 6 at 222 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).\\n\\n 7 The analysis required to determine whether consent to search was given\\n\\n 8 freely and voluntarily, however, differs somewhat from the above Fifth Amendment\\n\\n 9 analysis as to whether the postarrest right to remain silent was \\\"knowingly\\\" and\\n\\n10 voluntarily waived, for \\\"[t]here is a vast difference between those [Fifth Amendment\\n\\n11 truth-seeking] rights that protect a fair criminal trial and the rights guaranteed under\\n\\n12 the Fourth Amendment.\\\" Schneckloth, 412 U.S. at 241. Whereas \\\"[a] strict standard of\\n\\n13 waiver has been applied to those [Fifth Amendment] rights guaranteed to a criminal\\n\\n14 defendant to insure that\\\" he \\\"has not unknowingly relinquished the basic protections\\n\\n15 . . . thought indispensable to a fair trial,\\\" id. at 242, the Fourth Amendment's focus is\\n\\n16 not on truth-seeking at trial but rather on \\\"protect[ing] the 'security of one's privacy\\n\\n17 against arbitrary intrusion by the police,'\\\" id. (quoting Wolf v. Colorado, 338 U.S. 25, 27\\n\\n18 (1949)).\\n\\n\\n 37\\n\\f 1 Thus, focusing on what constitutes a valid consent for Fourth\\n\\n 2 Amendment purposes, the Schneckloth Court concluded that the considerations\\n\\n 3 informing the Miranda rule--that knowledge of a right to refuse to speak is an\\n\\n 4 indispensable element of a valid waiver of the privilege against self-incrimination--\\n\\n 5 \\\"are simply inapplicable\\\" to requests for a relaxation of one's insistence on the right\\n\\n 6 to privacy. Id. at 246. It ruled that the appropriate Fourth Amendment question is\\n\\n 7 \\\"whether a consent to a search was in fact 'voluntary' or was the product of duress or\\n\\n 8 coercion, express or implied.\\\" Id. at 227. Finding \\\"no reason . . . in the area of consent\\n\\n 9 searches\\\" to deviate \\\"from the traditional definition of 'voluntariness,'\\\" id. at 229, the\\n\\n10 Court stated that voluntariness \\\"is a question of fact to be determined from the\\n\\n11 totality of all the circumstances,\\\" id. at 227. And \\\"[w]hile knowledge of the right to\\n\\n12 refuse consent is one factor to be taken into account, the government need not\\n\\n13 establish such knowledge as the sine qua non of an effective consent.\\\" Id.; see also id.\\n\\n14 at 248-49; Edwards v. Arizona, 451 U.S. 477, 484 (1981) (\\\"Schneckloth . . . thus\\n\\n15 emphasized that the voluntariness of a consent or an admission on the one hand, and\\n\\n16 a knowing and intelligent waiver on the other, are discrete inquiries.\\\").\\n\\n17 Schneckloth announced its test in the context of the prosecution's reliance\\n\\n18 on consent given by the subject of the search who was not in custody. In United States\\n\\n 38\\n\\f 1 v. Watson, 423 U.S. 411 (1976), the Court held that the fact that consent was given by\\n\\n 2 the subject of the search while he was in custody does not change the test; custody is\\n\\n 3 a factor to be considered, but not one that is dispositive. Id. at 424 (\\\"the fact of\\n\\n 4 custody alone has never been enough in itself to demonstrate a coerced confession or\\n\\n 5 consent to search\\\"; \\\"under Schneckloth, the absence of proof that [the defendant] knew\\n\\n 6 he could withhold his consent, though it may be a factor in the overall judgment, is\\n\\n 7 not to be given controlling significance\\\").\\n\\n 8 As \\\"[t]he touchstone of the Fourth Amendment is reasonableness,\\\" Florida\\n\\n 9 v. Jimeno, 500 U.S. 248, 250 (1991), \\\"[t]he standard for measuring the scope of a\\n\\n10 suspect's consent under the Fourth Amendment is that of 'objective' reasonableness--\\n\\n11 what would the typical reasonable person have understood by the exchange between\\n\\n12 the officer and the suspect?\\\" Id. at 251. Thus, \\\"the ultimate question presented is\\n\\n13 whether the officer had a reasonable basis for believing that there had been consent\\n\\n14 to the search.\\\" United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995) (internal\\n\\n15 quotation marks omitted).\\n\\n\\n\\n\\n16 In the present case, the district court correctly determined that O'Brien\\n\\n17 consented to the searches of his College Point and 41st Road apartments and that his\\n\\n\\n 39\\n\\f 1 consents were not the product of duress or coercion, express or implied. While\\n\\n 2 O'Brien insists that his consent was involuntary because he was not informed that he\\n\\n 3 could refuse to give consent, that contention is legally and factually flawed. As\\n\\n 4 discussed above, Fourth Amendment standards do not make it mandatory to advise\\n\\n 5 a suspect of his right to refuse consent to search. And in any event, the Written\\n\\n 6 Consent To Search signed by O'Brien stated that he had in fact been informed that he\\n\\n 7 could refuse to consent to the search of his properties. O'Brien's testimony, varying\\n\\n 8 between, inter alia, claiming no recollection that he received appropriate warnings and\\n\\n 9 asserting categorically that he did not, provides no basis for overturning the district\\n\\n10 court's finding.\\n\\n11 Nor does the record support O'Brien's contention that the circumstances\\n\\n12 of his arrest on October 10 were inherently \\\"coercive\\\" (O'Brien brief on appeal at 42).\\n\\n13 O'Brien's effort to liken his case to Isiofia, 370 F.3d 226, in which we affirmed the grant\\n\\n14 of a suppression motion, falls woefully short. In Isiofia, the district court had\\n\\n15 plausibly found that a defendant's consent to search his apartment, computer, and car\\n\\n16 was not voluntary when it was given only after, inter alia, (a) agents entered Isiofia's\\n\\n17 apartment unlawfully, (b) eight agents remained in the living room with him for up\\n\\n18 to an hour and a quarter without a valid reason to remain there, (c) the agents did not\\n\\n\\n 40\\n\\f 1 tell him with what crime he was being charged, and (d) they gave Isiofia--who lacked\\n\\n 2 fluency in English--two consent-to-search forms that did not describe the nature of\\n\\n 3 the objects to be seized (one leaving that detail \\\"blank\\\" and the other being \\\"helplessly\\n\\n 4 vague\\\"). See id. at 231 (internal quotation marks omitted); id. at 234.\\n\\n 5 While O'Brien claims parallel circumstances by stating that he was\\n\\n 6 arrested and \\\"surrounded\\\" by a team of 10 or more officers from different agencies\\n\\n 7 (O'Brien brief on appeal at 43), the similarity ends with the fact that a large number\\n\\n 8 of officers entered O'Brien's home. Here, there was no illegal entry; the officers had\\n\\n 9 a well-founded fugitive warrant for his arrest, which allowed them to enter his\\n\\n10 Apartment to execute the arrest, see, e.g., Steagald v. United States, 451 U.S. 204, 221\\n\\n11 (1981). After O'Brien was arrested and seated on a couch in his living room, he was\\n\\n12 not surrounded by officers; only Alahverdian and Marino were there with him; the\\n\\n13 other officers were conducting a security sweep elsewhere in the apartment.\\n\\n14 Similarly, at the Suffolk County police precinct, the only officers in the interview\\n\\n15 room with O'Brien were Alahverdian and Marino. Further, O'Brien's own statements\\n\\n16 and explanations in the record in this case foreclose any suggestion that O'Brien was\\n\\n17 not fluent in the English language. And not only did the agents testify that they and\\n\\n18 O'Brien had no difficulty understanding each other; O'Brien--while saying that he\\n\\n\\n 41\\n\\f 1 remembered meeting Marino but not Alahverdian in the Apartment--testified that he\\n\\n 2 \\\"had no difficulty communicating with [Marino]\\\" (Aug. 22 Tr. 65).\\n\\n 3 Nor does the record indicate that either Alahverdian or Marino engaged\\n\\n 4 in any coercion or intimidation. Marino testified that they did not (see Aug. 22 Tr. 36);\\n\\n 5 they were in the Apartment for only some 20 minutes, part of that time being needed\\n\\n 6 to allow O'Brien to get dressed (see id. at 14). And O'Brien did not describe any\\n\\n 7 threatening or coercive statements or conduct by the officers.\\n\\n 8 The record also belies any notion that O'Brien felt intimidated. For\\n\\n 9 example, \\\"throughout the course of the day\\\" O'Brien sought to bargain with the\\n\\n10 agents by offering to provide information to assist their investigation if it might keep\\n\\n11 him out of jail (Aug. 22 Tr. 34). Marino described O'Brien as calm, lucid, and\\n\\n12 speaking freely (see, e.g., id. at 31-33, 34); Alahverdian described the conversation with\\n\\n13 O'Brien during the ride to the Suffolk County police precinct as \\\"pleasant\\\" (Aug. 13\\n\\n14 Tr. 29). And in O'Brien's own description to his ex-fiancée on October 16, 2013, of his\\n\\n15 October 10 consent to search the Apartment, he sounded anything but intimidated.\\n\\n16 He admitted telling her that when they asked if they could search, he said \\\"go ahead,\\\"\\n\\n17 \\\"take a look,\\\" \\\"feel free\\\" (Aug. 22 Tr. 69).\\n\\n\\n\\n\\n 42\\n\\f 1 Alahverdian also testified that in the Apartment, O'Brien thanked Marino\\n\\n 2 for granting his plea for a Valium; when they arrived at the precinct, O'Brien thanked\\n\\n 3 the agents for their considerate treatment in general. (Aug. 13 Tr. 18, 47, 21-22.) And\\n\\n 4 O'Brien himself testified that the agents had proceeded expeditiously on October 10\\n\\n 5 because \\\"they took it seriously that I needed medical attention.\\\" (Aug. 22 Tr. 57; see\\n\\n 6 also id. at 102 (Marino testifying that when they \\\"were concluding the interview\\\" at the\\n\\n 7 precinct, O'Brien \\\"said he wasn't feeling well and he wanted to see a doctor. The\\n\\n 8 interview stopped, I advised Suffolk County,\\\" and turned O'Brien over to the local\\n\\n 9 officers.).)\\n\\n10 O'Brien's contention that he was incapable of giving consent voluntarily\\n\\n11 because he was experiencing withdrawal from GHB is refuted by the record\\n\\n12 discussed in Part II.A.1. above, supporting the district court's permissible finding that\\n\\n13 O'Brien's cognitive and volitional functions were not impaired by his withdrawal\\n\\n14 from GHB.\\n\\n15 Finally, we reject O'Brien's additional suggestion that his ability to refuse\\n\\n16 consent was overborne by Marino's acceding to his request to alleviate the effects of\\n\\n17 GHB withdrawal by taking a Valium (see O'Brien brief on appeal at 43 (being \\\"given\\n\\n18 a Valium . . . could have only served to increase his impairment\\\"); see also id. at 38)).\\n\\n\\n 43\\n\\f 1 O'Brien points to no evidence to support this supposition. In contrast, the evidence\\n\\n 2 includes medical records showing that when O'Brien arrived at the hospital\\n\\n 3 complaining of GHB withdrawal, one of the medicines he was immediately given was\\n\\n 4 Valium. (See, e.g., Hospital Discharge Summary at 1 (when O'Brien arrived at the\\n\\n 5 hospital and \\\"stated that he was using GHB,\\\" had been \\\"taking GHB for the last few\\n\\n 6 years, every 2-3 hours[,] and presented with tachycardia, disphoresis, and\\n\\n 7 tremulousness,\\\" \\\"[h]e was given Valium 5 IV, Librium 50 p.o., and a bolus of normal\\n\\n 8 saline, to which he responded and a decision was made not to place him in the ICU\\n\\n 9 for further monitoring.\\\" (emphasis added)).\\n\\n10 In sum, we see no error of fact or law in the district court's denial of\\n\\n11 O'Brien's motion to suppress the evidence discovered in the searches to which he\\n\\n12 consented.\\n\\n\\n\\n\\n13 B. O'Brien's Insufficiency Argument\\n\\n14 The Controlled Substances Act (\\\"CSA\\\") provides, inter alia, that it is\\n\\n15 \\\"unlawful for any person knowingly or intentionally . . . to . . . possess with intent to\\n\\n16 . . . distribute . . . a controlled substance.\\\" 21 U.S.C. § 841(a)(1). It is also unlawful for\\n\\n17 any person \\\"knowingly or intentionally\\\" to \\\"import[] . . . a controlled substance\\\" into\\n\\n\\n 44\\n\\f 1 the United States. 21 U.S.C. §§ 960, 952. The indictment charged O'Brien with\\n\\n 2 violating these sections by knowingly importing and possessing with intent to\\n\\n 3 distribute methylone and anabolic steroids; with violating 21 U.S.C. §§ 963 and 846,\\n\\n 4 respectively, by conspiring to import and to possess with intent to distribute those\\n\\n 5 substances; and with violating 21 U.S.C. § 856 by knowingly and intentionally renting\\n\\n 6 and maintaining premises for the purpose of distributing methylone, a controlled\\n\\n 7 substance. O'Brien argues that he was entitled to acquittals on the ground that the\\n\\n 8 government did not prove that he knew methylone was a controlled substance. We\\n\\n 9 disagree.\\n\\n10 Knowledge that the commodity being imported or possessed for\\n\\n11 distribution was a controlled substance is an element of each of the above offenses;\\n\\n12 and in order to convict, the government must establish that knowledge beyond a\\n\\n13 reasonable doubt. See, e.g., United States v. Abdulle, 564 F.3d 119, 125 (2d Cir. 2009)\\n\\n14 (\\\"Abdulle\\\") (§§ 841(a)(1) and 846); United States v. Hassan, 578 F.3d 108, 121 (2d Cir.\\n\\n15 2008) (§§ 952 and 963); United States v. Hamilton, 334 F.3d 170, 180 (2d Cir. 2003)\\n\\n16 (\\\"Hamilton\\\") (§ 856), cert. denied, 540 U.S. 985 (2003). See also McFadden v. United States,\\n\\n17 135 S. Ct. 2298, 2304 (2015) (the CSA requires only that the defendant know that the\\n\\n18 substance he is dealing with is listed on the federal drug schedules, not that he know\\n\\n\\n 45\\n\\f 1 precisely what the substance is); Abdulle, 564 F.3d at 126 (\\\"A defendant may be\\n\\n 2 convicted of a violation of 21 U.S.C. § 846 without knowing the exact type of drug\\n\\n 3 involved. The government need only prove that the defendant was aware that some\\n\\n 4 controlled substance was involved.\\\" (internal quotation marks omitted)).\\n\\n 5 It is seldom possible to present direct evidence of a person's state of\\n\\n 6 mind. His knowledge may, however, be inferable from outward manifestations such\\n\\n 7 as his statements or his conduct, or from the circumstances surrounding or attendant\\n\\n 8 upon the fact he is alleged to have known. See, e.g., United States v. Nersesian, 824 F.2d\\n\\n 9 1294, 1314 (2d Cir. 1987). Efforts a defendant has made toward concealment, for\\n\\n10 example, of either the nature of an activity or his participation in it, may support an\\n\\n11 inference that he knew the activity was unlawful. See, e.g., Abdulle, 564 F.3d at 129 (\\\"a\\n\\n12 rational jury could have found that [the defendant in question] possessed and\\n\\n13 intended to deal in a controlled substance by inferring that he and the others\\n\\n14 expedited [its] importation . . . and concealed its contents in order to minimize the\\n\\n15 possibility that their illicit activities would be detected\\\").\\n\\n16 In challenging the sufficiency of the evidence to support his conviction,\\n\\n17 a defendant bears a heavy burden. See, e.g., United States v. Romano, 794 F.3d 317, 335\\n\\n18 (2d Cir. 2015); United States v. Leonard, 529 F.3d 83, 87 (2d Cir. 2008) (\\\"Leonard\\\"); United\\n\\n\\n 46\\n\\f 1 States v. Morgan, 385 F.3d 196, 204 (2d Cir. 2004); Hamilton, 334 F.3d at 179. In\\n\\n 2 assessing such a challenge, we are required to view all of the evidence--whether direct\\n\\n 3 or circumstantial--in the light most favorable to the government. See, e.g., Glasser v.\\n\\n 4 United States, 315 U.S. 60, 80 (1942), overruled on other grounds by Bourjaily v. United\\n\\n 5 States, 483 U.S. 171, 181 (1987); United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008)\\n\\n 6 (\\\"Eppolito\\\"), cert. denied, 555 U.S. 1148 (2009); Leonard, 529 F.3d at 87. We consider\\n\\n 7 items of evidence not in isolation but in conjunction, see, e.g., United States v. Autuori,\\n\\n 8 212 F.3d 105, 114 (2d Cir. 2000); United States v. Podlog, 35 F.3d 699, 705 (2d Cir. 1994),\\n\\n 9 cert. denied, 513 U.S. 1135 (1995); we defer to the jury's evident assessments of the\\n\\n10 credibility of the witnesses and its resolution of the weight of the evidence, see, e.g.,\\n\\n11 United States v. Coté, 544 F.3d 88, 99 (2d Cir. 2008) (\\\"giv[ing] full play to the right of the\\n\\n12 jury to determine credibility\\\"); United States v. Miller, 116 F.3d 641, 676 (2d Cir. 1997),\\n\\n13 cert. denied, 524 U.S. 905 (1998); United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998);\\n\\n14 we credit every inference that the jury could have drawn in the government's favor,\\n\\n15 see, e.g., Eppolito, 543 F.3d at 45; Leonard, 529 F.3d at 87; and we must affirm the\\n\\n16 conviction so long as, from the inferences reasonably drawn, the jury might fairly\\n\\n17 have concluded guilt beyond a reasonable doubt, see, e.g., Eppolito, 543 F.3d at 45-46;\\n\\n18 United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003).\\n\\n 47\\n\\f 1 In sum, the conviction must be upheld if \\\"any rational trier of fact could\\n\\n 2 have found the essential elements of the crime beyond a reasonable doubt.\\\" Jackson\\n\\n 3 v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). This standard,\\n\\n 4 reemphasized in the Supreme Court's recent opinions, makes \\\"clear\\\" that \\\"on direct\\n\\n 5 appeal, 'it is the responsibility of the jury--not the court--to decide what conclusions\\n\\n 6 should be drawn from evidence admitted at trial. A reviewing court may set aside\\n\\n 7 the jury's verdict on the ground of insufficient evidence only if no rational trier of fact\\n\\n 8 could have agreed with the jury.'\\\" Coleman v. Johnson, 566 U.S. 650, 651 (2012) (quoting\\n\\n 9 Cavazos v. Smith, 565 U.S. 1, 2 (2011)).\\n\\n10 The jury in this case was properly instructed that in order to convict\\n\\n11 O'Brien on any of the counts against him, it was required to find that he knew the\\n\\n12 products he was importing and possessing with intent to distribute were controlled\\n\\n13 substances. There was no question that O'Brien knew that the substances he was\\n\\n14 importing were methylone and anabolic steroids. He admitted to Alahverdian and\\n\\n15 Marino that he ordered methylone and anabolic steroids online from sellers he knew\\n\\n16 were in China. And, as described in Part I.A. above, the search of O'Brien's College\\n\\n17 Point Apartment turned up dozens of airway bills for packages mailed from China.\\n\\n18 Contrary to O'Brien's repeated statement in his pro se opening to the jury that he had\\n\\n\\n 48\\n\\f 1 \\\"nothing to hide,\\\" the many steps he took to conceal the contents of those packages\\n\\n 2 and his connection to them provided fertile ground for the inference that he knew\\n\\n 3 that dealing in those substances was unlawful.\\n\\n 4 First, rather than going through traditional banking channels, O'Brien\\n\\n 5 paid for his orders of these substances using bitcoins and multiple money remitter\\n\\n 6 services. This enabled him to, inter alia, make his purchases without using his own\\n\\n 7 name. (See generally Trial Transcript (\\\"Trial Tr.\\\") at 117, 280-82, 288-90.)\\n\\n 8 Second, O'Brien never had his purchases of methylone and anabolic\\n\\n 9 steroids addressed to himself or sent to his apartments. He hired people to rent mail\\n\\n10 boxes in their own names--or in false names--at mailbox stores throughout Brooklyn.\\n\\n11 As described in Part I.A. above, the items found in the search of O'Brien's College\\n\\n12 Point Apartment included not only applications and receipts for mailbox rental\\n\\n13 agreements at multiple mailbox store locations (see Trial Tr. 214), but also a cache of\\n\\n14 false identification cards, along with blank ID cards and a printer that could create\\n\\n15 more. O'Brien had the packages of methylone and anabolic steroids he ordered from\\n\\n16 China addressed to the persons who rented the mailboxes and sent to the various\\n\\n17 mailbox store locations. When the packages arrived, O'Brien had the persons he had\\n\\n18 hired retrieve them. For example, he told the agents on October 10 that he had had\\n\\n\\n 49\\n\\f 1 his friend Michael Wagner rent a mailbox in Wagner's name, and he paid Wagner\\n\\n 2 $200 each time he picked up a box of Molly from a mailbox store and brought it to\\n\\n 3 O'Brien. (See Trial Tr. 117.)\\n\\n 4 In addition, the packages containing O'Brien's purchases were\\n\\n 5 themselves fraudulently labeled. The intercepted packages that led to O'Brien's\\n\\n 6 eventual arrest on the present charges bore labels that misrepresented their contents\\n\\n 7 as various uncontrolled substances, when in fact they contained methylone and\\n\\n 8 anabolic steroids that O'Brien had ordered.\\n\\n 9 Lastly, after the drugs ordered from China arrived and had been picked\\n\\n10 up by O'Brien's retrievers and given to O'Brien, O'Brien stored them in Apartment 5E\\n\\n11 on 41st Road--identified in his Written Consent To Search as one of \\\"my\\n\\n12 apartment[s].\\\" To rent that apartment O'Brien had used the alias \\\"George Manolas.\\\"\\n\\n13 In the district court, O'Brien moved for acquittal under Fed. R. Crim. P.\\n\\n14 29 on the principal ground that the government had failed to establish that he was the\\n\\n15 lessor of the 41st Road apartment in the name George Manolas. The district court\\n\\n16 denied that motion. See United States v. O'Brien, No. 13-CR-586 (RRM), 2017 WL\\n\\n17 2371159 (E.D.N.Y. May 31, 2017) (\\\"Rule 29 Decision\\\"). O'Brien has not challenged that\\n\\n18 decision on appeal, and any further argument that \\\"George Manolas\\\" was not one of\\n\\n\\n 50\\n\\f 1 O'Brien's aliases has been waived.\\n\\n 2 In any event, the government's contention that the \\\"George Manolas\\\"\\n\\n 3 who leased the apartment at 41st Road was O'Brien was amply supported by several\\n\\n 4 categories of circumstantial evidence, including (a) trial testimony of Alahverdian\\n\\n 5 and/or Marino that O'Brien admitted that the 41st Road apartment was his stash\\n\\n 6 house, supplied the exact number of the apartment (5-E) when Marino said the agents\\n\\n 7 knew it was on the fourth or fifth floor, and reasonably accurately described what the\\n\\n 8 agents would find inside that apartment, see Rule 29 Decision, 2017 WL 2371159,\\n\\n 9 at *10 (citing Trial Tr. 119-25, 683); (b) recordings of two telephone calls by O'Brien in\\n\\n10 October 2013 from the county jail to his then-girlfriend, instructing her to open the\\n\\n11 mail at his College Point Apartment addressed to George Manolas, see Rule 29\\n\\n12 Decision, 2017 WL 2371159, at *11 (citing Trial Tr. 250, 253); and (c) testimony by\\n\\n13 Schottenfeld describing the batches of false identification documents found in the\\n\\n14 search of the College Point Apartment, including birth certificates, social security\\n\\n15 cards, and police identification cards in names other than O'Brien's, including the\\n\\n16 names Jeremy Soto, Stephen Conte, and George Manolas, with some of the Conte and\\n\\n17 Soto identification documents bearing photographs of O'Brien (see Trial Tr. 193-99).\\n\\n\\n\\n\\n 51\\n\\f 1 In sum, O'Brien contrived to order and pay for methylone and anabolic\\n\\n 2 steroids without using his real name; to have the drug packages labeled as containing\\n\\n 3 uncontrolled substances; to have the packages addressed to persons other than\\n\\n 4 himself, sent to addresses other than his, and retrieved by other persons without\\n\\n 5 mention of his name; and to have the drugs warehoused in a place he leased under\\n\\n 6 an alias. Such precautions lent themselves easily to a rational inference that O'Brien\\n\\n 7 was aware that the drugs in which he dealt were controlled substances.\\n\\n 8 Finally, O'Brien also explicitly evinced his wariness of the law\\n\\n 9 enforcement tactic of apprehending drug traffickers by subjecting intercepted\\n\\n10 suspicious packages to controlled deliveries. In an O'Brien message that was read to\\n\\n11 the jury--apparently an email to a supplier, saying \\\"'65k is a very appealing offer.\\n\\n12 Okay,'\\\"--O'Brien indicated that his staff had previously been caught in such a\\n\\n13 maneuver, saying:\\n\\n14 \\\"Here is the problem with why i am so nervous about the current\\n15 shipment--keep in mind i am very experienced... [T]his tracking\\n16 number . . . says they made an attempt to deliver. [T]hat is\\n17 IMPOSSIBLE. [I]t is a mailbox rental store and there is ALWAYS\\n18 a person there to receive parcels--it's simply what they are in\\n19 business to do... [T]hey rent mailboxes. [N]ot to mention that I\\n20 receive parcels there every week from China with no\\n21 problems. . . . [I]n my unfortunate experience in the past, along with\\n22 the other wholesalers I know, this is a trap. I send my worker in to\\n23 sign for the package and they arrest them on the spot.\\\"\\n\\n 52\\n\\f 1 (Trial Tr. 291-92 (quoting Government Exh. 413) (emphases ours).)\\n\\n 2 We conclude that the evidence as a whole was ample for the jury to infer\\n\\n 3 that O'Brien knew that the substances in which he knowingly dealt, methylone and\\n\\n 4 anabolic steroids, were in fact controlled substances.\\n\\n\\n\\n\\n 5 C. O'Brien's Challenges to the Scheduling of Methylone as a Controlled Substance\\n\\n 6 Finally, O'Brien contends that the district court erred in denying his\\n\\n 7 posttrial motion for acquittal on the ground that the indictment charging him with\\n\\n 8 unlawful conduct with respect to methylone was constitutionally flawed because the\\n\\n 9 scheduling of methylone as a controlled substance was accomplished through (a) an\\n\\n10 impermissible delegation of congressional power to the United States Attorney\\n\\n11 General, and (b) the Attorney General's subdelegation of that power to the DEA. He\\n\\n12 also argues that the scheduling process was insufficient to afford him the notice\\n\\n13 mandated by principles of due process. We reject these contentions because such\\n\\n14 challenges were required to be made prior to trial and because, in any event, they lack\\n\\n15 merit.\\n\\n\\n\\n\\n 53\\n\\f 1 1. Untimeliness\\n\\n 2 The Federal Rules of Criminal Procedure provide that certain types of\\n\\n 3 objections to a prosecution \\\"must be raised by pretrial motion if the basis for the\\n\\n 4 motion is then reasonably available and the motion can be determined without a trial\\n\\n 5 on the merits.\\\" Fed. R. Crim. P. 12(b)(3) (2014). This requirement serves a number of\\n\\n 6 purposes, including sparing the court, the witnesses, and the parties \\\"the burden and\\n\\n 7 expense of a trial,\\\" Davis v. United States, 411 U.S. 233, 241 (1973) (discussing 1944\\n\\n 8 version of Rule 12), and \\\"insuring that indictments are not routinely challenged (and\\n\\n 9 dismissed) after the jury has been seated and sworn, a result that would . . . force\\n\\n10 courts frequently to confront complex Double Jeopardy questions,\\\" United States v.\\n\\n11 Spero, 331 F.3d 57, 62 (2d Cir. 2003) (discussing 2002 version of Rule 12) (internal\\n\\n12 quotation marks omitted).\\n\\n13 The categories of motions that must be made before trial are those that\\n\\n14 assert \\\"a defect in instituting the prosecution,\\\" Fed. R. Crim. P. 12(b)(3)(A) (2014), or\\n\\n15 assert \\\"a defect in the indictment,\\\" id. Rule 12(b)(3)(B). As amended in 2014, Rule\\n\\n16 12(b)(3) provides \\\"a nonexclusive list of commonly raised claims under each\\n\\n17 category.\\\" Advisory Committee Note (2014) (\\\"2014 Advisory Note\\\"). The examples\\n\\n18 include \\\"an error in the grand-jury proceeding,\\\" Rule 12(b)(3)(A)(v), and the\\n\\n\\n 54\\n\\f 1 indictment's \\\"failure to state an offense,\\\" id. Rule 12(b)(3)(B)(v). See also 2014 Advisory\\n\\n 2 Note (noting that prior language allowing a motion to dismiss for failure to state an\\n\\n 3 offense to be made at any time, on the theory that that failure was \\\"jurisdictional,\\\" was\\n\\n 4 removed in light of the Supreme Court's decision in United States v. Cotton, 535 U.S.\\n\\n 5 625, 629-31 (2002), that such a flaw does not implicate the court's jurisdiction).\\n\\n 6 If a motion falling within Rule 12(b)(3) is not made before trial (or before\\n\\n 7 such pretrial deadline as may be set by the court for such motions), it is \\\"untimely.\\\"\\n\\n 8 Fed. R. Crim. P. 12(c)(3) (2014). If the motion is untimely, the court may nonetheless\\n\\n 9 entertain it if the movant shows \\\"good cause\\\" for his failure to make it prior to the\\n\\n10 deadline. Id. Such provisions, albeit with slight variations in wording and\\n\\n11 numbering, have been included in Rule 12 since its inception in 1944. See, e.g., Davis,\\n\\n12 411 U.S. at 236 (discussing the original version of Rule 12, which stated in pertinent\\n\\n13 part, that \\\"'[d]efenses and objections based on defects in the institution of the\\n\\n14 prosecution or in the indictment . . . may be raised only by motion before trial,' and\\n\\n15 that failure to present such defenses or objections 'constitutes a waiver thereof, but\\n\\n16 the court for cause shown may grant relief from the waiver'\\\" (quoting Fed. R. Crim.\\n\\n17 P. 12(b)(2) (1944)); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 362 (1963)\\n\\n18 (\\\"Shotwell\\\") (same).\\n\\n\\n 55\\n\\f 1 Both Davis and Shotwell dealt with posttrial claims that the prosecutions\\n\\n 2 had been defectively instituted because their respective grand juries had been\\n\\n 3 convened pursuant to selection methods not designed to draw from a cross-section\\n\\n 4 of the community. See, e.g., Davis, 411 U.S. at 235; Shotwell, 371 U.S. at 460-61. In both\\n\\n 5 cases, the Supreme Court concluded that the Rule 12 waiver provision \\\"precludes\\n\\n 6 untimely challenges to grand jury arrays, even when such challenges are on\\n\\n 7 constitutional grounds.\\\" Davis, 411 U.S. at 238 (citing Shotwell, 371 U.S. at 363).\\n\\n 8 In Shotwell, the Court upheld findings that no \\\"cause\\\" sufficient to\\n\\n 9 \\\"warrant relief from\\\" Rule 12's waiver provision was shown where \\\"the facts\\n\\n10 [underlying the challenge] were notorious and available to petitioners in the exercise\\n\\n11 of due diligence before the trial.\\\" 371 U.S. at 363. In Davis, the Court similarly upheld\\n\\n12 the finding of no \\\"cause\\\" where the belatedly challenged system had been in use \\\"for\\n\\n13 years,\\\" and \\\"[n]o reason ha[d] been suggested why petitioner or his attorney could\\n\\n14 not have ascertained all of the facts necessary to present objection to the court prior\\n\\n15 to trial.\\\" 411 U.S. at 243.\\n\\n16 We reach the same conclusions with respect to O'Brien's impermissible-\\n\\n17 delegation challenge, given the fundamental nature of the asserted defects. The\\n\\n18 contention that a federal grand jury was chosen through a process that was not\\n\\n\\n 56\\n\\f 1 designed to draw from a cross-section of the community is a contention that the\\n\\n 2 ensuing indictments were issued by an entity that was not constitutionally authorized\\n\\n 3 to accuse any person of any crime; such a contention posits a defect in the institution\\n\\n 4 of the prosecution. Likewise, a challenge to Congress's delegation to members of the\\n\\n 5 Executive Branch of authorization to designate substances as controlled substances\\n\\n 6 posits that the targeted conduct has been designated a crime by an entity not\\n\\n 7 constitutionally authorized to say that any person may be prosecuted for that\\n\\n 8 conduct. A prosecution for conduct that has been defined as criminal only by an\\n\\n 9 entity without legitimate authorization to do so would be defective either in its\\n\\n10 institution or in its failure to charge a cognizable offense. If a defendant wishes to\\n\\n11 assert such a flaw, he must make his motion prior to trial if the basis for his assertion\\n\\n12 is then reasonably available.\\n\\n13 In the present case, O'Brien's trial began on July 20, 2015. His claim that\\n\\n14 methylone had been unconstitutionally designated a controlled substance was not\\n\\n15 asserted prior to trial; it was not raised until November 2016, more than a year after\\n\\n16 he had been tried and found guilty of the charges against him. It is clear that the facts\\n\\n17 on which his motion was premised had been available to him throughout his pretrial\\n\\n18 period. As to the delegation process itself, the CSA, in which Congress authorized\\n\\n\\n 57\\n\\f 1 the Attorney General to, inter alia, add substances to controlled substance schedules\\n\\n 2 under 21 U.S.C. § 811(a), was enacted in 1970, see Pub. L. 91-513, 84 Stat. 1242\\n\\n 3 (codified at 21 U.S.C. § 801 et seq.). The Attorney General's regulations delegating\\n\\n 4 authority to the DEA to schedule controlled substances on a temporary basis were\\n\\n 5 promulgated in 1990. See 28 C.F.R. § 0.100(b) (1990). And the particulars of the\\n\\n 6 delegation process were described in detail by the Supreme Court in 1991 in Touby\\n\\n 7 v. United States, 500 U.S. 160, 162 (1991), which rejected an impermissible-delegation\\n\\n 8 challenge to convictions for manufacture and conspiracy to manufacture\\n\\n 9 4-methylaminorex, more commonly known as \\\"Euphoria.\\\"\\n\\n10 The designation of methylone as a controlled substance occurred well\\n\\n11 before O'Brien's October 29, 2013 arrest in this case. Notice of Intent to designate\\n\\n12 methylone as such a substance temporarily was published in the Federal Register on\\n\\n13 September 8, 2011, see 76 Fed. Reg. 55616; Notice of Proposed Rulemaking to make\\n\\n14 its placement in Schedule I permanent was published in the Federal Register on\\n\\n15 October 17, 2012, see 77 Fed. Reg. 63766; and the permanent scheduling of methylone\\n\\n16 was published in the Federal Register on April 12, 2013, see 78 Fed. Reg. 21818.\\n\\n17 O'Brien was thus arrested on the present charges of unlawfully dealing\\n\\n18 in methylone more than six months after the publication of notice that methylone was\\n\\n\\n 58\\n\\f 1 permanently scheduled as a controlled substance, and more than two years after\\n\\n 2 publication of its temporary designation as a controlled substance. Thus, the\\n\\n 3 components of O'Brien's impermissible-delegation challenge were available to\\n\\n 4 O'Brien prior to his July 2015 trial. They were matters of public record.\\n\\n 5 The only excuse offered by O'Brien for the failure to make his delegation\\n\\n 6 challenge prior to trial was that he was proceeding pro se, stating that \\\"it's a lot for a\\n\\n 7 regular defendant to know and to learn\\\" (Sentencing Transcript January 20, 2017,\\n\\n 8 at 17). This explanation was specious at best. Even assuming that a defendant's pro\\n\\n 9 se status could be accepted as \\\"good cause\\\" for his failure to make a timely challenge\\n\\n10 to long-established procedures, that excuse would have no validity in this case.\\n\\n11 O'Brien's citation of his pro se status ignored the fact that he did not become pro se\\n\\n12 until about two months before his trial; for the preceding 19 months of the\\n\\n13 prosecution, O'Brien had been represented by counsel. There had been ample\\n\\n14 opportunity and expertise to allow for the making of an impermissible-delegation\\n\\n15 challenge prior to trial, if one had been warranted.\\n\\n\\n\\n\\n16 2. Lack of Merit\\n\\n17 In Touby, the Supreme Court considered contentions that Congress, in\\n\\n\\n 59\\n\\f 1 authorizing the Attorney General to add, remove, and transfer substances across the\\n\\n 2 controlled substance schedules under 21 U.S.C. § 811(a), \\\"unconstitutionally\\n\\n 3 delegate[d] legislative power to the Attorney General,\\\" 500 U.S. at 162, as well as\\n\\n 4 contentions that the Attorney General could not permissibly subdelegate that\\n\\n 5 authority to the DEA, see id. at 169. The Court rejected those contentions in the\\n\\n 6 context of the scheduling of 4-methylaminorex. See id. at 165-69. We see no\\n\\n 7 principled basis on which to reach a different conclusion with respect to O'Brien's\\n\\n 8 parallel challenges to the scheduling of methylone. Whether timely or not, those\\n\\n 9 challenges lacked merit.\\n\\n10 O'Brien also contends that publication of the intended and actual\\n\\n11 scheduling of methylone as a controlled substance in the Federal Register was\\n\\n12 insufficient to provide notice that dealing in methylone was unlawful. However,\\n\\n13 Congress requires that \\\"documents having general applicability and legal effect\\\"--\\n\\n14 which includes \\\"every document or order which prescribes a penalty\\\"--\\\"shall be\\n\\n15 published in the Federal Register,\\\" 44 U.S.C. § 1505(a); and it has provided that\\n\\n16 proper publication of a document in the Federal Register \\\"is sufficient to give notice\\n\\n17 of the contents of the document to a person subject to or affected by it,\\\" id. § 1507.\\n\\n18 Accordingly, when \\\"regulations, which are given the force of law, are published in\\n\\n\\n 60\\n\\f 1 the Federal Register, . . . constructive notice of their contents is thus given all persons\\n\\n 2 affected by them.\\\" Yakus v. United States, 321 U.S. 414, 435 (1944); see, e.g., United States\\n\\n 3 v. Kelly, 874 F.3d 1037, 1048 (9th Cir. 2017) (after making the requisite findings, the\\n\\n 4 DEA temporarily scheduled ethylone, and \\\"[w]hen the DEA filed the Notice and\\n\\n 5 Order in the Federal Register, Kelly received fair notice that ethylone was a controlled\\n\\n 6 substance\\\" (internal quotation marks omitted), cert. denied, 138 S. Ct. 2038 (2018)).\\n\\n 7 As set out above, the intended and actual scheduling of methylone as a\\n\\n 8 controlled substance were published in the Federal Register. We thus reject O'Brien's\\n\\n 9 lack-of-notice argument.\\n\\n10 We note also that, as discussed in Part II.B. above, the statutory\\n\\n11 provisions under which O'Brien was prosecuted made his conduct unlawful only if\\n\\n12 he \\\"knew\\\" he was dealing with a controlled substance. There is no dispute that\\n\\n13 O'Brien knew that he was dealing in methylone; and, as discussed, the properly\\n\\n14 instructed jury found beyond a reasonable doubt, based on ample evidence, that\\n\\n15 O'Brien knew methylone was a controlled substance.\\n\\n\\n\\n\\n 61\\n\\f1 CONCLUSION\\n\\n\\n\\n\\n2 We have considered all of O'Brien's contentions on this appeal and have\\n\\n3 found them to be without merit. The judgment of the district court is affirmed.\\n\\n\\n\\n\\n 62\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2391,"cells":{"id":{"kind":"number","value":4628188,"string":"4,628,188"},"name":{"kind":"string","value":"EVANSTON INSURANCE COMPANY, Plaintiff-Appellant, v. WILLIAM KRAMER & ASSOCIATES, LLC, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Evanston Insurance Co. v. William Kramer & Associates, LLC"},"decision_date":{"kind":"string","value":"2019-06-11"},"docket_number":{"kind":"string","value":"Docket 16-2082; August Term, 2017"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Leval, Raggi, Lohier\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"16-2082\\n Evanston Insurance Co. v. William Kramer & Associates, LLC\\n\\n 1 UNITED STATES COURT OF APPEALS\\n 2 FOR THE SECOND CIRCUIT\\n 3\\n 4 August Term, 2017\\n 5\\n 6 (Argued: August 18, 2017 Decided: June 11, 2019)\\n 7\\n 8 Docket No. 16‐2082\\n 9\\n10 _____________________________________\\n11\\n12 Evanston Insurance Company,\\n13\\n14 Plaintiff‐Appellant,\\n15\\n16 v.\\n17\\n18 William Kramer & Associates, LLC,\\n19\\n20 Defendant‐Appellee.\\n21 _____________________________________\\n22\\n23 Before:\\n24\\n25 PIERRE N. LEVAL, REENA RAGGI, and RAYMOND J. LOHIER, JR.,\\n26 Circuit Judges.\\n27 Plaintiff appeals from the judgment of the United States District Court\\n28 for the District of Connecticut (Michael P. Shea, J.) granting judgment as a\\n29 matter of law in favor of Defendant. Plaintiff, successor‐in‐interest to an\\n30 insurer of property damaged by a hurricane, brought this negligence action\\n31 against Defendant, the Plaintiff’s loss adjustment agent, for failure to inform it\\n32 of a mortgage on the property. The suit was filed after the three‐year\\n33 limitations period imposed by § 52‐577 of the Connecticut General Statutes.\\n34 At trial, a jury found that the limitation period was tolled by reason of the\\n35 Defendant’s continuing course of conduct. The district court set aside the\\n36 jury’s verdict, concluding that there was insufficient evidence to support\\n37 tolling. We certified to the Connecticut Supreme Court the question whether\\n38 the “trial evidence [was] legally sufficient to support the jury’s finding” of\\n39 tolling. The Connecticut Supreme Court held, Essex Ins. Co. v. William Kramer\\n40 & Assocs., LLC, 331 Conn. 493 (2019), that the evidence was not legally\\n41 sufficient to support tolling. We now affirm the district court’s judgment.\\n\\f 1\\n 2 MARY MASSARON, Plunkett Cooney,\\n 3 Bloomfield Hills, MI, for Plaintiff‐\\n 4 Appellant.\\n 5\\n 6 RICHARD A. SIMPSON (Kimberly A.\\n 7 Ashmore, on the brief), Wiley Rein LLP,\\n 8 Washington, DC, for Defendant‐Appellee.\\n 9\\n10 PER CURIAM:\\n\\n11 Plaintiff Evanston Insurance Company (hereinafter the “Plaintiff” or\\n\\n12 the “Insurer”) appeals from the entry of judgment by the United States\\n\\n13 District Court for the District of Connecticut (Michael P. Shea, J.) in favor of\\n\\n14 defendant William Kramer & Associates, LLC (hereinafter the “Defendant” or\\n\\n15 the “Adjuster”), which served as the Insurer’s adjuster on a claim for\\n\\n16 hurricane damage. The sole issue on appeal is whether the district court erred\\n\\n17 in overturning the jury verdict and granting judgment as a matter of law in\\n\\n18 favor of Adjuster on the basis of insufficiency of the evidence to support the\\n\\n19 jury’s conclusion that the statute of limitations was tolled such that Insurer’s\\n\\n20 claim was timely filed. We assume the partiesʹ familiarity with our earlier\\n\\n21 opinion in this matter, which discusses at length the underlying facts,\\n\\n22 procedural history, and arguments presented on appeal. Evanston Ins. Co. v.\\n\\n23 William Kramer & Assocs., LLC, 890 F.3d 40 (2d Cir. 2018). We repeat them here\\n\\n\\n 2\\n\\f 1 only insofar as we think it necessary to understand the discussion that\\n\\n 2 follows.\\n\\n 3 After a jury trial, the jury found that the Adjuster had “engaged in a\\n\\n 4 continuing course of conduct such that [its] duty to [the Insurer] continued in\\n\\n 5 a manner that tolled the statute of limitations for enough time that [the\\n\\n 6 Insurer’s] claim is not time‐barred.” Essex Ins. Co. v. William Kramer & Assocs.,\\n\\n 7 Inc., No. 3:13‐CV‐1537 (MPS), 2016 WL 3198190, at *7 (D. Conn. June 8, 2016).\\n\\n 8 The jury awarded the Insurer damages for negligence in the amount of\\n\\n 9 $1,250,002.89. Id. at *1.\\n\\n10 The Adjuster then moved for judgment as a matter of law pursuant to\\n\\n11 Federal Rule of Civil Procedure 50(b), arguing that the record contained\\n\\n12 insufficient evidence to support the jury’s finding that a continuing course of\\n\\n13 conduct had tolled the statute of limitations. The district court ruled that “no\\n\\n14 reasonable jury could find, based on the evidence presented at trial, that the\\n\\n15 continuing course of conduct doctrine renders [Evanston’s] claim timely,” id.\\n\\n16 at *7, and entered judgment for the Adjuster. The Insurer timely appealed.\\n\\n17 We found that Connecticut law was unclear as to the contours of the\\n\\n18 doctrine that tolls a limitation period because of a continuing course of\\n\\n\\n\\n 3\\n\\f 1 conduct. Having the consent of the parties for certification of the controlling\\n\\n 2 question to the Connecticut Supreme Court, we asked for that Court’s\\n\\n 3 guidance on whether, under Connecticut law, the trial evidence was legally\\n\\n 4 sufficient to support the tolling of the limitation period through October 21,\\n\\n 5 2010, so as to render the Insurer’s claim timely. Evanston Ins. Co., 890 F.3d at\\n\\n 6 51.\\n\\n 7 The Connecticut Supreme Court accepted the certification, and on April\\n\\n 8 23, 2019, responded that “the evidence is not legally sufficient to toll the\\n\\n 9 statute of limitations on this factual record.” Essex Ins. Co. v. William Kramer &\\n\\n10 Assocs., LLC, 331 Conn. 493, 497 (2019).\\n\\n11 The Connecticut Supreme Court’s decision resolves the controlling\\n\\n12 question of Connecticut law. We therefore AFFIRM the judgment of the\\n\\n13 district court.\\n\\n\\n\\n\\n 4\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405441/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"LEVAL"},"judge2":{"kind":"string","value":"RAGGI"},"judge3":{"kind":"string","value":"LOHIER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4628188/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: EVANSTON INSURANCE COMPANY, Plaintiff-Appellant, v. WILLIAM KRAMER & ASSOCIATES, LLC, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-06-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n16-2082\n Evanston Insurance Co. v. William Kramer & Associates, LLC\n\n 1 UNITED STATES COURT OF APPEALS\n 2 FOR THE SECOND CIRCUIT\n 3\n 4 August Term, 2017\n 5\n 6 (Argued: August 18, 2017 Decided: June 11, 2019)\n 7\n 8 Docket No. 16‐2082\n 9\n10 _____________________________________\n11\n12 Evanston Insurance Company,\n13\n14 Plaintiff‐Appellant,\n15\n16 v.\n17\n18 William Kramer & Associates, LLC,\n19\n20 Defendant‐Appellee.\n21 _____________________________________\n22\n23 Before:\n24\n25 PIERRE N. LEVAL, REENA RAGGI, and RAYMOND J. LOHIER, JR.,\n26 Circuit Judges.\n27 Plaintiff appeals from the judgment of the United States District Court\n28 for the District of Connecticut (Michael P. Shea, J.) granting judgment as a\n29 matter of law in favor of Defendant. Plaintiff, successor‐in‐interest to an\n30 insurer of property damaged by a hurricane, brought this negligence action\n31 against Defendant, the Plaintiff’s loss adjustment agent, for failure to inform it\n32 of a mortgage on the property. The suit was filed after the three‐year\n33 limitations period imposed by § 52‐577 of the Connecticut General Statutes.\n34 At trial, a jury found that the limitation period was tolled by reason of the\n35 Defendant’s continuing course of conduct. The district court set aside the\n36 jury’s verdict, concluding that there was insufficient evidence to support\n37 tolling. We certified to the Connecticut Supreme Court the question whether\n38 the “trial evidence [was] legally sufficient to support the jury’s finding” of\n39 tolling. The Connecticut Supreme Court held, Essex Ins. Co. v. William Kramer\n40 & Assocs., LLC, 331 Conn. 493 (2019), that the evidence was not legally\n41 sufficient to support tolling. We now affirm the district court’s judgment.\n\f 1\n 2 MARY MASSARON, Plunkett Cooney,\n 3 Bloomfield Hills, MI, for Plaintiff‐\n 4 Appellant.\n 5\n 6 RICHARD A. SIMPSON (Kimberly A.\n 7 Ashmore, on the brief), Wiley Rein LLP,\n 8 Washington, DC, for Defendant‐Appellee.\n 9\n10 PER CURIAM:\n\n11 Plaintiff Evanston Insurance Company (hereinafter the “Plaintiff” or\n\n12 the “Insurer”) appeals from the entry of judgment by the United States\n\n13 District Court for the District of Connecticut (Michael P. Shea, J.) in favor of\n\n14 defendant William Kramer & Associates, LLC (hereinafter the “Defendant” or\n\n15 the “Adjuster”), which served as the Insurer’s adjuster on a claim for\n\n16 hurricane damage. The sole issue on appeal is whether the district court erred\n\n17 in overturning the jury verdict and granting judgment as a matter of law in\n\n18 favor of Adjuster on the basis of insufficiency of the evidence to support the\n\n19 jury’s conclusion that the statute of limitations was tolled such that Insurer’s\n\n20 claim was timely filed. We assume the partiesʹ familiarity with our earlier\n\n21 opinion in this matter, which discusses at length the underlying facts,\n\n22 procedural history, and arguments presented on appeal. Evanston Ins. Co. v.\n\n23 William Kramer & Assocs., LLC, 890 F.3d 40 (2d Cir. 2018). We repeat them here\n\n\n 2\n\f 1 only insofar as we think it necessary to understand the discussion that\n\n 2 follows.\n\n 3 After a jury trial, the jury found that the Adjuster had “engaged in a\n\n 4 continuing course of conduct such that [its] duty to [the Insurer] continued in\n\n 5 a manner that tolled the statute of limitations for enough time that [the\n\n 6 Insurer’s] claim is not time‐barred.” Essex Ins. Co. v. William Kramer & Assocs.,\n\n 7 Inc., No. 3:13‐CV‐1537 (MPS), 2016 WL 3198190, at *7 (D. Conn. June 8, 2016).\n\n 8 The jury awarded the Insurer damages for negligence in the amount of\n\n 9 $1,250,002.89. Id. at *1.\n\n10 The Adjuster then moved for judgment as a matter of law pursuant to\n\n11 Federal Rule of Civil Procedure 50(b), arguing that the record contained\n\n12 insufficient evidence to support the jury’s finding that a continuing course of\n\n13 conduct had tolled the statute of limitations. The district court ruled that “no\n\n14 reasonable jury could find, based on the evidence presented at trial, that the\n\n15 continuing course of conduct doctrine renders [Evanston’s] claim timely,” id.\n\n16 at *7, and entered judgment for the Adjuster. The Insurer timely appealed.\n\n17 We found that Connecticut law was unclear as to the contours of the\n\n18 doctrine that tolls a limitation period because of a continuing course of\n\n\n\n 3\n\f 1 conduct. Having the consent of the parties for certification of the controlling\n\n 2 question to the Connecticut Supreme Court, we asked for that Court’s\n\n 3 guidance on whether, under Connecticut law, the trial evidence was legally\n\n 4 sufficient to support the tolling of the limitation period through October 21,\n\n 5 2010, so as to render the Insurer’s claim timely. Evanston Ins. Co., 890 F.3d at\n\n 6 51.\n\n 7 The Connecticut Supreme Court accepted the certification, and on April\n\n 8 23, 2019, responded that “the evidence is not legally sufficient to toll the\n\n 9 statute of limitations on this factual record.” Essex Ins. Co. v. William Kramer &\n\n10 Assocs., LLC, 331 Conn. 493, 497 (2019).\n\n11 The Connecticut Supreme Court’s decision resolves the controlling\n\n12 question of Connecticut law. We therefore AFFIRM the judgment of the\n\n13 district court.\n\n\n\n\n 4\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: EVANSTON INSURANCE COMPANY, Plaintiff-Appellant, v. WILLIAM KRAMER & ASSOCIATES, LLC, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-06-11\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n16-2082\\n Evanston Insurance Co. v. William Kramer & Associates, LLC\\n\\n 1 UNITED STATES COURT OF APPEALS\\n 2 FOR THE SECOND CIRCUIT\\n 3\\n 4 August Term, 2017\\n 5\\n 6 (Argued: August 18, 2017 Decided: June 11, 2019)\\n 7\\n 8 Docket No. 16‐2082\\n 9\\n10 _____________________________________\\n11\\n12 Evanston Insurance Company,\\n13\\n14 Plaintiff‐Appellant,\\n15\\n16 v.\\n17\\n18 William Kramer & Associates, LLC,\\n19\\n20 Defendant‐Appellee.\\n21 _____________________________________\\n22\\n23 Before:\\n24\\n25 PIERRE N. LEVAL, REENA RAGGI, and RAYMOND J. LOHIER, JR.,\\n26 Circuit Judges.\\n27 Plaintiff appeals from the judgment of the United States District Court\\n28 for the District of Connecticut (Michael P. Shea, J.) granting judgment as a\\n29 matter of law in favor of Defendant. Plaintiff, successor‐in‐interest to an\\n30 insurer of property damaged by a hurricane, brought this negligence action\\n31 against Defendant, the Plaintiff’s loss adjustment agent, for failure to inform it\\n32 of a mortgage on the property. The suit was filed after the three‐year\\n33 limitations period imposed by § 52‐577 of the Connecticut General Statutes.\\n34 At trial, a jury found that the limitation period was tolled by reason of the\\n35 Defendant’s continuing course of conduct. The district court set aside the\\n36 jury’s verdict, concluding that there was insufficient evidence to support\\n37 tolling. We certified to the Connecticut Supreme Court the question whether\\n38 the “trial evidence [was] legally sufficient to support the jury’s finding” of\\n39 tolling. The Connecticut Supreme Court held, Essex Ins. Co. v. William Kramer\\n40 & Assocs., LLC, 331 Conn. 493 (2019), that the evidence was not legally\\n41 sufficient to support tolling. We now affirm the district court’s judgment.\\n\\f 1\\n 2 MARY MASSARON, Plunkett Cooney,\\n 3 Bloomfield Hills, MI, for Plaintiff‐\\n 4 Appellant.\\n 5\\n 6 RICHARD A. SIMPSON (Kimberly A.\\n 7 Ashmore, on the brief), Wiley Rein LLP,\\n 8 Washington, DC, for Defendant‐Appellee.\\n 9\\n10 PER CURIAM:\\n\\n11 Plaintiff Evanston Insurance Company (hereinafter the “Plaintiff” or\\n\\n12 the “Insurer”) appeals from the entry of judgment by the United States\\n\\n13 District Court for the District of Connecticut (Michael P. Shea, J.) in favor of\\n\\n14 defendant William Kramer & Associates, LLC (hereinafter the “Defendant” or\\n\\n15 the “Adjuster”), which served as the Insurer’s adjuster on a claim for\\n\\n16 hurricane damage. The sole issue on appeal is whether the district court erred\\n\\n17 in overturning the jury verdict and granting judgment as a matter of law in\\n\\n18 favor of Adjuster on the basis of insufficiency of the evidence to support the\\n\\n19 jury’s conclusion that the statute of limitations was tolled such that Insurer’s\\n\\n20 claim was timely filed. We assume the partiesʹ familiarity with our earlier\\n\\n21 opinion in this matter, which discusses at length the underlying facts,\\n\\n22 procedural history, and arguments presented on appeal. Evanston Ins. Co. v.\\n\\n23 William Kramer & Assocs., LLC, 890 F.3d 40 (2d Cir. 2018). We repeat them here\\n\\n\\n 2\\n\\f 1 only insofar as we think it necessary to understand the discussion that\\n\\n 2 follows.\\n\\n 3 After a jury trial, the jury found that the Adjuster had “engaged in a\\n\\n 4 continuing course of conduct such that [its] duty to [the Insurer] continued in\\n\\n 5 a manner that tolled the statute of limitations for enough time that [the\\n\\n 6 Insurer’s] claim is not time‐barred.” Essex Ins. Co. v. William Kramer & Assocs.,\\n\\n 7 Inc., No. 3:13‐CV‐1537 (MPS), 2016 WL 3198190, at *7 (D. Conn. June 8, 2016).\\n\\n 8 The jury awarded the Insurer damages for negligence in the amount of\\n\\n 9 $1,250,002.89. Id. at *1.\\n\\n10 The Adjuster then moved for judgment as a matter of law pursuant to\\n\\n11 Federal Rule of Civil Procedure 50(b), arguing that the record contained\\n\\n12 insufficient evidence to support the jury’s finding that a continuing course of\\n\\n13 conduct had tolled the statute of limitations. The district court ruled that “no\\n\\n14 reasonable jury could find, based on the evidence presented at trial, that the\\n\\n15 continuing course of conduct doctrine renders [Evanston’s] claim timely,” id.\\n\\n16 at *7, and entered judgment for the Adjuster. The Insurer timely appealed.\\n\\n17 We found that Connecticut law was unclear as to the contours of the\\n\\n18 doctrine that tolls a limitation period because of a continuing course of\\n\\n\\n\\n 3\\n\\f 1 conduct. Having the consent of the parties for certification of the controlling\\n\\n 2 question to the Connecticut Supreme Court, we asked for that Court’s\\n\\n 3 guidance on whether, under Connecticut law, the trial evidence was legally\\n\\n 4 sufficient to support the tolling of the limitation period through October 21,\\n\\n 5 2010, so as to render the Insurer’s claim timely. Evanston Ins. Co., 890 F.3d at\\n\\n 6 51.\\n\\n 7 The Connecticut Supreme Court accepted the certification, and on April\\n\\n 8 23, 2019, responded that “the evidence is not legally sufficient to toll the\\n\\n 9 statute of limitations on this factual record.” Essex Ins. Co. v. William Kramer &\\n\\n10 Assocs., LLC, 331 Conn. 493, 497 (2019).\\n\\n11 The Connecticut Supreme Court’s decision resolves the controlling\\n\\n12 question of Connecticut law. We therefore AFFIRM the judgment of the\\n\\n13 district court.\\n\\n\\n\\n\\n 4\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2392,"cells":{"id":{"kind":"number","value":4628561,"string":"4,628,561"},"name":{"kind":"string","value":"Mark A. GUTERMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. COSTCO WHOLESALE CORPORATION, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Guterman v. Costco Wholesale Corp."},"decision_date":{"kind":"string","value":"2019-06-12"},"docket_number":{"kind":"string","value":"18-3184; August Term 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Livingston, Lynch, Per Curiam, Sullivan\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"18‐3184\\nGuterman v. Costco Wholesale Corp.\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n August Term 2018\\n\\n (Argued: May 24, 2019 Decided: June 12, 2019)\\n\\n No. 18‐3184\\n\\n ––––––––––––––––––––––––––––––––––––\\n\\n MARK A. GUTERMAN,\\n individually and on behalf of all others similarly situated,\\n\\n Plaintiff‐Appellant,\\n\\n ‐v.‐\\n\\n COSTCO WHOLESALE CORPORATION\\n\\n Defendant‐Appellee.\\n\\n ––––––––––––––––––––––––––––––––––––\\n\\nBefore: LIVINGSTON, LYNCH, and SULLIVAN, Circuit Judges.\\n\\n Plaintiff‐Appellant Mark Guterman appeals from an Opinion and Order of\\nthe United States District Court for the Southern District of New York (Karas, J.),\\ndismissing Guterman’s Second Amended Complaint for failure to state a claim\\nunder Federal Rule of Civil Procedure 12(b)(6). The Second Amended Complaint\\nalleges, as relevant to this appeal, that Defendant‐Appellee Costco Wholesale\\nCorp. (“Costco”) charges its customers sales tax on the full price of items subject\\nto a manufacturer’s discount in situations where New York law provides that\\nCostco, rather than the customer, is liable for the tax. The district court\\n\\n\\n 1\\n\\fdetermined that such claims must be brought in a New York administrative\\nproceeding under New York Tax Law § 1139, which provides the exclusive\\nremedy for claims that a “tax, penalty or interest” was “erroneously, illegally or\\nunconstitutionally collected.” We agree with the district court. Accordingly, the\\njudgment of the district court is AFFIRMED.\\n\\nFOR PLAINTIFF‐APPELLANT: WILLIAM R. WEINSTEIN, Law Offices of\\n William R. Weinstein, White Plains, NY.\\n\\nFOR DEFENDANT‐APPELLEE: JAMES ARDEN (Caitlin N. Matheny, on the\\n brief), Sidley Austin LLP, New York, NY.\\n\\nPER CURIAM:\\n\\n Plaintiff‐Appellant Mark Guterman (“Guterman”) appeals from a\\n\\nSeptember 24, 2018 Opinion and Order of the United States District Court for the\\n\\nSouthern District of New York (Karas, J.), dismissing Guterman’s Second\\n\\nAmended Complaint (“SAC”) for failure to state a claim under Federal Rule of\\n\\nCivil Procedure 12(b)(6). In this diversity case, the SAC alleges, as relevant to this\\n\\nappeal, that Defendant‐Appellee Costco Wholesale Corp. (“Costco”) charges its\\n\\ncustomers sales tax on the full price of items subject to a manufacturer’s discount\\n\\nin situations where New York law provides that Costco, rather than the\\n\\ncustomer, is liable for the tax. The district court determined that such claims\\n\\nmust be brought in a New York administrative proceeding under New York Tax\\n\\nLaw (“NYTL”) § 1139, which provides the exclusive remedy for claims that a\\n\\n\\n\\n\\n 2\\n\\f“tax, penalty or interest” was “erroneously, illegally or unconstitutionally\\n\\ncollected.” Guterman v. Costco Wholesale Corp., 342 F. Supp. 3d 468, 477 (S.D.N.Y.\\n\\n2018).\\n\\n We review de novo a district court’s grant of a motion to dismiss under\\n\\nFederal Rule of Civil Procedureopn 12(b)(6), accepting all factual allegations in\\n\\nthe complaint as true and drawing all reasonable inferences in favor of the\\n\\nplaintiff. See Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010). Article 28 of NYTL\\n\\ngoverns New York’s sales tax. In general, vendors like Costco are required to\\n\\ncollect sales tax on behalf of their customers and remit the tax to the New York\\n\\nTax Commission (“Commission”). See NYTL § 1131. Vendors thus collect sales tax\\n\\nfrom customers “as trustee for and on account of the state.” NYTL § 1132(a)(1).\\n\\nSection 1139 sets out the “exclusive remedies available to any person for the\\n\\nreview of tax liability imposed by [Article 28],” NYTL § 1140, and reads in\\n\\nrelevant part:\\n\\n (a) In the manner provided in this section the tax commission shall\\n refund or credit any tax, penalty or interest erroneously, illegally or\\n unconstitutionally collected or paid if application therefor shall be\\n filed with the tax commission (i) in the case of tax paid by the\\n applicant to a person required to collect tax, within three years after\\n the date when the tax was payable by such person to the tax\\n commission . . . , or (ii) in the case of a tax, penalty or interest paid by\\n the applicant to the tax commission, within three years after the date\\n\\n\\n 3\\n\\f when such amount was payable under this article . . . . No refund or\\n credit shall be made to any person of tax which he collected from a\\n customer until he shall first establish to the satisfaction of the tax\\n commission, under such regulations as it may prescribe, that he has\\n repaid such tax to the customer.\\n\\nNYTL § 1139(a). Determinations made by the Commission in § 1139 proceedings\\n\\nmay not be “enjoined or reviewed . . . by any action or proceeding other than a\\n\\nproceeding under article seventy‐eight of the civil practice law and rules.” NYTL\\n\\n§ 1140.\\n\\n Guterman argues that § 1139 creates an implied private right of action and\\n\\nthat the district court thus erred in dismissing his claims. Guterman\\n\\nacknowledges that Circuit precedent “presents a formidable barrier to his\\n\\nclaims.” Reply Br. 1. We agree, and conclude that Guterman cannot surmount\\n\\nthat formidable barrier.\\n\\n In Estler v. Dunkin’ Brands, Inc., 691 F. App’x 3 (2d Cir. 2017), we faced a case\\n\\nsimilar to this one. There, as here, the plaintiffs alleged that they were\\n\\n“unlawfully charged sales tax in violation of New York state law” and brought\\n\\nsuit in federal court rather than filing an application under § 1139. Id. at 4. We\\n\\ndetermined that under Article 28’s statutory scheme, the § 1139\\n\\napplication‐and‐refund process is the exclusive remedy available for claims of\\n\\nunlawfully charged sales tax; indeed, we stated that § 1139 “makes clear that\\n\\n 4\\n\\f§ 1140’s exclusive administrative remedy is designed for precisely those cases in\\n\\nwhich a claimant alleges that a tax has been collected erroneously, illegally, or\\n\\nunconstitutionally.” Id. at 6 (internal quotation marks omitted). As a result, we\\n\\naffirmed the dismissal of the plaintiffs’ state common law and constitutional\\n\\nclaims, as well as their claims under New York General Business Law § 349,\\n\\nbecause the claims “fail[ed] to comply with the exclusive remedy provision of\\n\\n[NYTL] § 1140.” Id. at 4–5. This result was consistent with the unanimous practice\\n\\nof the district courts in this Circuit. See, e.g., Kupferstein v. TJX Cos., Inc., 2017 WL\\n\\n590324, at *2 (E.D.N.Y. Feb. 14, 2017); Gilbert v. Home Depot, 2014 WL 4923107, at *3\\n\\n(W.D.N.Y. Sept. 30, 2014); Cohen v. Hertz Corp., 2013 WL 9450421, at *3 (S.D.N.Y.\\n\\nNov. 26, 2013). It was also consistent with the practice of New York courts. See,\\n\\ne.g., CMSG Rest. Grp., LLC v. State, 40 N.Y.S.3d 412, 416 (1st Dep’t 2016)\\n\\n(“[P]laintiffs’ argument that the performances . . . were exempt from the sales\\n\\ntaxes at issue is not properly raised in this action, due to the statute’s exclusive\\n\\nremedy provision ([NYTL] § 1140).”); Davidson v. Rochester Tel. Corp., 558 N.Y.S.2d\\n\\n1009, 1011 (3d Dep’t 1990) (holding that claim that collection of sales tax was\\n\\n“improper, unnecessary, [and] unauthorized by law” must be “raised in an\\n\\nadministrative proceeding” (internal quotation marks omitted)); see also Metro\\n\\n\\n\\n\\n 5\\n\\fEnterp. Corp. v. N.Y. State Dep’t of Taxation and Finance, 2019 WL 1714928, at *2 (3d\\n\\nDep’t Apr. 18, 2019) (citing NYTL § 1140 for proposition that “a taxpayer\\n\\nchallenging a tax assessment must first exhaust the available administrative\\n\\nremedies prior to commencing an action”).\\n\\n We see no reason to decide otherwise in this case. Guterman’s principal\\n\\nargument is that Estler is distinguishable because in that case the sales tax\\n\\nerroneously collected was conveyed directly to New York, such that New York\\n\\nwas overpaid and the consumer’s natural remedy was a refund from the New\\n\\nYork treasury, while his contention in this case is that Costco charged the\\n\\nconsumer for an amount of tax that, under the regulations governing\\n\\nmanufacturers’ coupons, was due to New York from Costco. Thus, Guterman\\n\\nargues, New York received only what it was owed, and the amount collected\\n\\nfrom the consumer in effect unjustly enriched Costco, not New York. Even\\n\\nassuming arguendo that Guterman’s interpretation of the regulations is correct, his\\n\\nargument does not undermine the fact that § 1140 renders the remedies provided\\n\\nin § 1139 exclusive for claims that a sales tax was collected “illegally”—exactly\\n\\nwhat Guterman alleges happened here—as well as for taxes collected\\n\\n\\n\\n\\n 6\\n\\f“erroneously.” The plain meaning of the statute governs here, just as it did in\\n\\nEstler.\\n\\n Guterman’s other arguments fare no better. His argument that only tax\\n\\ncollectors, and not customers, are “required to file the refund claim under § 1139,”\\n\\nAppellant Br. 33, is unpersuasive in light of the clear and unambiguous text of\\n\\n§ 1139(a)(i) that persons who have paid tax “to a person required to collect tax”\\n\\nmay file an application with the Commission. His appeal to legislative history\\n\\nlikewise does not persuade us. See Riley v. Cty. of Broome, 95 N.Y.2d 455, 463–64\\n\\n(2000) (noting that though legislative history can be relevant when interpreting\\n\\nNew York statutes, “the words of the statute are the best evidence of the\\n\\nLegislature’s intent,” and “[a]s a general rule, unambiguous language of a statute\\n\\nis alone determinative”). Moreover, § 1140 makes clear that however § 1139 is\\n\\ninterpreted, the application‐and‐refund process contained therein is the exclusive\\n\\nremedy for claims of unlawful collection of sales tax. See Cruz v. TD Bank, N.A., 22\\n\\nN.Y.3d 61, 70–71 (2013) (stating that New York courts have “declined to recognize\\n\\na private right of action in instances where ‘the Legislature specifically considered\\n\\nand expressly provided for enforcement mechanisms’ in the statute itself”\\n\\n(quoting Mark G. v. Sabol, 93 N.Y.2d 710, 720 (1999)).\\n\\n\\n\\n\\n 7\\n\\f Guterman also contends that it would be futile for him to file an application\\n\\nunder § 1139 because he would be unable to satisfy the requirement, imposed by\\n\\n20 NYCRR § 534.2(a)(2)(i)(g), that applicants include in their application “a full\\n\\nexplanation of facts on which the claim is based, including substantiation of the\\n\\nbasis for and the amount of the claim.” Guterman argues that any\\n\\n“substantiation” of claims against Costco must include the amount of the\\n\\nmanufacturer’s reimbursement, which he says it is impossible for customers to\\n\\ndetermine. This claim is vitiated by the SAC itself, which describes precisely how\\n\\ncustomers can determine how much they were allegedly overcharged by Costco:\\n\\n [B]y manually totaling the full price of all “A” taxable items on the\\n receipt and applying the stated sales tax rate shown on the\\n receipt . . . customers [can] determine that Costco has charged Sales\\n Tax on the full price rather than the reduced price of purchased\\n items involving the coupons.\\n\\nA‐27. Guterman identifies no other information that he does not or could not\\n\\npossess that would be required to file an application. Furthermore, if the\\n\\nCommission ultimately denies his application, Guterman would be entitled to\\n\\nappeal that denial through an Article 78 proceeding. See NYTL § 1140.\\n\\nAccordingly, such an application would not be “futile.”\\n\\n It is undisputed that Guterman never filed an application under § 1139 for\\n\\nhis claims against Costco. Section 1139 proceedings are the sole remedy available\\n\\n 8\\n\\fto him for such claims. As a result, the district court properly dismissed his\\n\\nNYTL claims. 1 For the same reason, the district court properly dismissed\\n\\nGuterman’s unjust enrichment claims and his claim under New York General\\n\\nBusiness Law § 349. Guterman “cannot make an end run around the exclusive\\n\\nremedy provision in New York Tax Law by presenting the improper collection of\\n\\nsales tax as a claim under GBL § 349” or as an unjust enrichment claim.\\n\\nGuterman, 342 F. Supp. 3d at 480.\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n 1 Because we conclude that the “plain language” in §§ 1139 and 1140 “indicate\\nthe answer” to the question whether § 1139 contains an implied private right of action\\n(no), and because there is no “split of authority” on the question in New York courts,\\nwe decline to certify the question to the New York Court of Appeals. See McCarthy v.\\nOlin Corp., 119 F.3d 148, 153 (2d Cir. 1997).\\n\\n\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4405814/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"LIVINGSTON"},"judge2":{"kind":"string","value":"LYNCH"},"judge3":{"kind":"string","value":"SULLIVAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4628561/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Mark A. GUTERMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. COSTCO WHOLESALE CORPORATION, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-06-12\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18‐3184\nGuterman v. Costco Wholesale Corp.\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n August Term 2018\n\n (Argued: May 24, 2019 Decided: June 12, 2019)\n\n No. 18‐3184\n\n ––––––––––––––––––––––––––––––––––––\n\n MARK A. GUTERMAN,\n individually and on behalf of all others similarly situated,\n\n Plaintiff‐Appellant,\n\n ‐v.‐\n\n COSTCO WHOLESALE CORPORATION\n\n Defendant‐Appellee.\n\n ––––––––––––––––––––––––––––––––––––\n\nBefore: LIVINGSTON, LYNCH, and SULLIVAN, Circuit Judges.\n\n Plaintiff‐Appellant Mark Guterman appeals from an Opinion and Order of\nthe United States District Court for the Southern District of New York (Karas, J.),\ndismissing Guterman’s Second Amended Complaint for failure to state a claim\nunder Federal Rule of Civil Procedure 12(b)(6). The Second Amended Complaint\nalleges, as relevant to this appeal, that Defendant‐Appellee Costco Wholesale\nCorp. (“Costco”) charges its customers sales tax on the full price of items subject\nto a manufacturer’s discount in situations where New York law provides that\nCostco, rather than the customer, is liable for the tax. The district court\n\n\n 1\n\fdetermined that such claims must be brought in a New York administrative\nproceeding under New York Tax Law § 1139, which provides the exclusive\nremedy for claims that a “tax, penalty or interest” was “erroneously, illegally or\nunconstitutionally collected.” We agree with the district court. Accordingly, the\njudgment of the district court is AFFIRMED.\n\nFOR PLAINTIFF‐APPELLANT: WILLIAM R. WEINSTEIN, Law Offices of\n William R. Weinstein, White Plains, NY.\n\nFOR DEFENDANT‐APPELLEE: JAMES ARDEN (Caitlin N. Matheny, on the\n brief), Sidley Austin LLP, New York, NY.\n\nPER CURIAM:\n\n Plaintiff‐Appellant Mark Guterman (“Guterman”) appeals from a\n\nSeptember 24, 2018 Opinion and Order of the United States District Court for the\n\nSouthern District of New York (Karas, J.), dismissing Guterman’s Second\n\nAmended Complaint (“SAC”) for failure to state a claim under Federal Rule of\n\nCivil Procedure 12(b)(6). In this diversity case, the SAC alleges, as relevant to this\n\nappeal, that Defendant‐Appellee Costco Wholesale Corp. (“Costco”) charges its\n\ncustomers sales tax on the full price of items subject to a manufacturer’s discount\n\nin situations where New York law provides that Costco, rather than the\n\ncustomer, is liable for the tax. The district court determined that such claims\n\nmust be brought in a New York administrative proceeding under New York Tax\n\nLaw (“NYTL”) § 1139, which provides the exclusive remedy for claims that a\n\n\n\n\n 2\n\f“tax, penalty or interest” was “erroneously, illegally or unconstitutionally\n\ncollected.” Guterman v. Costco Wholesale Corp., 342 F. Supp. 3d 468, 477 (S.D.N.Y.\n\n2018).\n\n We review de novo a district court’s grant of a motion to dismiss under\n\nFederal Rule of Civil Procedureopn 12(b)(6), accepting all factual allegations in\n\nthe complaint as true and drawing all reasonable inferences in favor of the\n\nplaintiff. See Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010). Article 28 of NYTL\n\ngoverns New York’s sales tax. In general, vendors like Costco are required to\n\ncollect sales tax on behalf of their customers and remit the tax to the New York\n\nTax Commission (“Commission”). See NYTL § 1131. Vendors thus collect sales tax\n\nfrom customers “as trustee for and on account of the state.” NYTL § 1132(a)(1).\n\nSection 1139 sets out the “exclusive remedies available to any person for the\n\nreview of tax liability imposed by [Article 28],” NYTL § 1140, and reads in\n\nrelevant part:\n\n (a) In the manner provided in this section the tax commission shall\n refund or credit any tax, penalty or interest erroneously, illegally or\n unconstitutionally collected or paid if application therefor shall be\n filed with the tax commission (i) in the case of tax paid by the\n applicant to a person required to collect tax, within three years after\n the date when the tax was payable by such person to the tax\n commission . . . , or (ii) in the case of a tax, penalty or interest paid by\n the applicant to the tax commission, within three years after the date\n\n\n 3\n\f when such amount was payable under this article . . . . No refund or\n credit shall be made to any person of tax which he collected from a\n customer until he shall first establish to the satisfaction of the tax\n commission, under such regulations as it may prescribe, that he has\n repaid such tax to the customer.\n\nNYTL § 1139(a). Determinations made by the Commission in § 1139 proceedings\n\nmay not be “enjoined or reviewed . . . by any action or proceeding other than a\n\nproceeding under article seventy‐eight of the civil practice law and rules.” NYTL\n\n§ 1140.\n\n Guterman argues that § 1139 creates an implied private right of action and\n\nthat the district court thus erred in dismissing his claims. Guterman\n\nacknowledges that Circuit precedent “presents a formidable barrier to his\n\nclaims.” Reply Br. 1. We agree, and conclude that Guterman cannot surmount\n\nthat formidable barrier.\n\n In Estler v. Dunkin’ Brands, Inc., 691 F. App’x 3 (2d Cir. 2017), we faced a case\n\nsimilar to this one. There, as here, the plaintiffs alleged that they were\n\n“unlawfully charged sales tax in violation of New York state law” and brought\n\nsuit in federal court rather than filing an application under § 1139. Id. at 4. We\n\ndetermined that under Article 28’s statutory scheme, the § 1139\n\napplication‐and‐refund process is the exclusive remedy available for claims of\n\nunlawfully charged sales tax; indeed, we stated that § 1139 “makes clear that\n\n 4\n\f§ 1140’s exclusive administrative remedy is designed for precisely those cases in\n\nwhich a claimant alleges that a tax has been collected erroneously, illegally, or\n\nunconstitutionally.” Id. at 6 (internal quotation marks omitted). As a result, we\n\naffirmed the dismissal of the plaintiffs’ state common law and constitutional\n\nclaims, as well as their claims under New York General Business Law § 349,\n\nbecause the claims “fail[ed] to comply with the exclusive remedy provision of\n\n[NYTL] § 1140.” Id. at 4–5. This result was consistent with the unanimous practice\n\nof the district courts in this Circuit. See, e.g., Kupferstein v. TJX Cos., Inc., 2017 WL\n\n590324, at *2 (E.D.N.Y. Feb. 14, 2017); Gilbert v. Home Depot, 2014 WL 4923107, at *3\n\n(W.D.N.Y. Sept. 30, 2014); Cohen v. Hertz Corp., 2013 WL 9450421, at *3 (S.D.N.Y.\n\nNov. 26, 2013). It was also consistent with the practice of New York courts. See,\n\ne.g., CMSG Rest. Grp., LLC v. State, 40 N.Y.S.3d 412, 416 (1st Dep’t 2016)\n\n(“[P]laintiffs’ argument that the performances . . . were exempt from the sales\n\ntaxes at issue is not properly raised in this action, due to the statute’s exclusive\n\nremedy provision ([NYTL] § 1140).”); Davidson v. Rochester Tel. Corp., 558 N.Y.S.2d\n\n1009, 1011 (3d Dep’t 1990) (holding that claim that collection of sales tax was\n\n“improper, unnecessary, [and] unauthorized by law” must be “raised in an\n\nadministrative proceeding” (internal quotation marks omitted)); see also Metro\n\n\n\n\n 5\n\fEnterp. Corp. v. N.Y. State Dep’t of Taxation and Finance, 2019 WL 1714928, at *2 (3d\n\nDep’t Apr. 18, 2019) (citing NYTL § 1140 for proposition that “a taxpayer\n\nchallenging a tax assessment must first exhaust the available administrative\n\nremedies prior to commencing an action”).\n\n We see no reason to decide otherwise in this case. Guterman’s principal\n\nargument is that Estler is distinguishable because in that case the sales tax\n\nerroneously collected was conveyed directly to New York, such that New York\n\nwas overpaid and the consumer’s natural remedy was a refund from the New\n\nYork treasury, while his contention in this case is that Costco charged the\n\nconsumer for an amount of tax that, under the regulations governing\n\nmanufacturers’ coupons, was due to New York from Costco. Thus, Guterman\n\nargues, New York received only what it was owed, and the amount collected\n\nfrom the consumer in effect unjustly enriched Costco, not New York. Even\n\nassuming arguendo that Guterman’s interpretation of the regulations is correct, his\n\nargument does not undermine the fact that § 1140 renders the remedies provided\n\nin § 1139 exclusive for claims that a sales tax was collected “illegally”—exactly\n\nwhat Guterman alleges happened here—as well as for taxes collected\n\n\n\n\n 6\n\f“erroneously.” The plain meaning of the statute governs here, just as it did in\n\nEstler.\n\n Guterman’s other arguments fare no better. His argument that only tax\n\ncollectors, and not customers, are “required to file the refund claim under § 1139,”\n\nAppellant Br. 33, is unpersuasive in light of the clear and unambiguous text of\n\n§ 1139(a)(i) that persons who have paid tax “to a person required to collect tax”\n\nmay file an application with the Commission. His appeal to legislative history\n\nlikewise does not persuade us. See Riley v. Cty. of Broome, 95 N.Y.2d 455, 463–64\n\n(2000) (noting that though legislative history can be relevant when interpreting\n\nNew York statutes, “the words of the statute are the best evidence of the\n\nLegislature’s intent,” and “[a]s a general rule, unambiguous language of a statute\n\nis alone determinative”). Moreover, § 1140 makes clear that however § 1139 is\n\ninterpreted, the application‐and‐refund process contained therein is the exclusive\n\nremedy for claims of unlawful collection of sales tax. See Cruz v. TD Bank, N.A., 22\n\nN.Y.3d 61, 70–71 (2013) (stating that New York courts have “declined to recognize\n\na private right of action in instances where ‘the Legislature specifically considered\n\nand expressly provided for enforcement mechanisms’ in the statute itself”\n\n(quoting Mark G. v. Sabol, 93 N.Y.2d 710, 720 (1999)).\n\n\n\n\n 7\n\f Guterman also contends that it would be futile for him to file an application\n\nunder § 1139 because he would be unable to satisfy the requirement, imposed by\n\n20 NYCRR § 534.2(a)(2)(i)(g), that applicants include in their application “a full\n\nexplanation of facts on which the claim is based, including substantiation of the\n\nbasis for and the amount of the claim.” Guterman argues that any\n\n“substantiation” of claims against Costco must include the amount of the\n\nmanufacturer’s reimbursement, which he says it is impossible for customers to\n\ndetermine. This claim is vitiated by the SAC itself, which describes precisely how\n\ncustomers can determine how much they were allegedly overcharged by Costco:\n\n [B]y manually totaling the full price of all “A” taxable items on the\n receipt and applying the stated sales tax rate shown on the\n receipt . . . customers [can] determine that Costco has charged Sales\n Tax on the full price rather than the reduced price of purchased\n items involving the coupons.\n\nA‐27. Guterman identifies no other information that he does not or could not\n\npossess that would be required to file an application. Furthermore, if the\n\nCommission ultimately denies his application, Guterman would be entitled to\n\nappeal that denial through an Article 78 proceeding. See NYTL § 1140.\n\nAccordingly, such an application would not be “futile.”\n\n It is undisputed that Guterman never filed an application under § 1139 for\n\nhis claims against Costco. Section 1139 proceedings are the sole remedy available\n\n 8\n\fto him for such claims. As a result, the district court properly dismissed his\n\nNYTL claims. 1 For the same reason, the district court properly dismissed\n\nGuterman’s unjust enrichment claims and his claim under New York General\n\nBusiness Law § 349. Guterman “cannot make an end run around the exclusive\n\nremedy provision in New York Tax Law by presenting the improper collection of\n\nsales tax as a claim under GBL § 349” or as an unjust enrichment claim.\n\nGuterman, 342 F. Supp. 3d at 480.\n\n CONCLUSION\n\n For the foregoing reasons, we AFFIRM the judgment of the district court.\n\n\n\n\n 1 Because we conclude that the “plain language” in §§ 1139 and 1140 “indicate\nthe answer” to the question whether § 1139 contains an implied private right of action\n(no), and because there is no “split of authority” on the question in New York courts,\nwe decline to certify the question to the New York Court of Appeals. See McCarthy v.\nOlin Corp., 119 F.3d 148, 153 (2d Cir. 1997).\n\n\n 9\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Mark A. GUTERMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. COSTCO WHOLESALE CORPORATION, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-06-12\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18‐3184\\nGuterman v. Costco Wholesale Corp.\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n August Term 2018\\n\\n (Argued: May 24, 2019 Decided: June 12, 2019)\\n\\n No. 18‐3184\\n\\n ––––––––––––––––––––––––––––––––––––\\n\\n MARK A. GUTERMAN,\\n individually and on behalf of all others similarly situated,\\n\\n Plaintiff‐Appellant,\\n\\n ‐v.‐\\n\\n COSTCO WHOLESALE CORPORATION\\n\\n Defendant‐Appellee.\\n\\n ––––––––––––––––––––––––––––––––––––\\n\\nBefore: LIVINGSTON, LYNCH, and SULLIVAN, Circuit Judges.\\n\\n Plaintiff‐Appellant Mark Guterman appeals from an Opinion and Order of\\nthe United States District Court for the Southern District of New York (Karas, J.),\\ndismissing Guterman’s Second Amended Complaint for failure to state a claim\\nunder Federal Rule of Civil Procedure 12(b)(6). The Second Amended Complaint\\nalleges, as relevant to this appeal, that Defendant‐Appellee Costco Wholesale\\nCorp. (“Costco”) charges its customers sales tax on the full price of items subject\\nto a manufacturer’s discount in situations where New York law provides that\\nCostco, rather than the customer, is liable for the tax. The district court\\n\\n\\n 1\\n\\fdetermined that such claims must be brought in a New York administrative\\nproceeding under New York Tax Law § 1139, which provides the exclusive\\nremedy for claims that a “tax, penalty or interest” was “erroneously, illegally or\\nunconstitutionally collected.” We agree with the district court. Accordingly, the\\njudgment of the district court is AFFIRMED.\\n\\nFOR PLAINTIFF‐APPELLANT: WILLIAM R. WEINSTEIN, Law Offices of\\n William R. Weinstein, White Plains, NY.\\n\\nFOR DEFENDANT‐APPELLEE: JAMES ARDEN (Caitlin N. Matheny, on the\\n brief), Sidley Austin LLP, New York, NY.\\n\\nPER CURIAM:\\n\\n Plaintiff‐Appellant Mark Guterman (“Guterman”) appeals from a\\n\\nSeptember 24, 2018 Opinion and Order of the United States District Court for the\\n\\nSouthern District of New York (Karas, J.), dismissing Guterman’s Second\\n\\nAmended Complaint (“SAC”) for failure to state a claim under Federal Rule of\\n\\nCivil Procedure 12(b)(6). In this diversity case, the SAC alleges, as relevant to this\\n\\nappeal, that Defendant‐Appellee Costco Wholesale Corp. (“Costco”) charges its\\n\\ncustomers sales tax on the full price of items subject to a manufacturer’s discount\\n\\nin situations where New York law provides that Costco, rather than the\\n\\ncustomer, is liable for the tax. The district court determined that such claims\\n\\nmust be brought in a New York administrative proceeding under New York Tax\\n\\nLaw (“NYTL”) § 1139, which provides the exclusive remedy for claims that a\\n\\n\\n\\n\\n 2\\n\\f“tax, penalty or interest” was “erroneously, illegally or unconstitutionally\\n\\ncollected.” Guterman v. Costco Wholesale Corp., 342 F. Supp. 3d 468, 477 (S.D.N.Y.\\n\\n2018).\\n\\n We review de novo a district court’s grant of a motion to dismiss under\\n\\nFederal Rule of Civil Procedureopn 12(b)(6), accepting all factual allegations in\\n\\nthe complaint as true and drawing all reasonable inferences in favor of the\\n\\nplaintiff. See Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010). Article 28 of NYTL\\n\\ngoverns New York’s sales tax. In general, vendors like Costco are required to\\n\\ncollect sales tax on behalf of their customers and remit the tax to the New York\\n\\nTax Commission (“Commission”). See NYTL § 1131. Vendors thus collect sales tax\\n\\nfrom customers “as trustee for and on account of the state.” NYTL § 1132(a)(1).\\n\\nSection 1139 sets out the “exclusive remedies available to any person for the\\n\\nreview of tax liability imposed by [Article 28],” NYTL § 1140, and reads in\\n\\nrelevant part:\\n\\n (a) In the manner provided in this section the tax commission shall\\n refund or credit any tax, penalty or interest erroneously, illegally or\\n unconstitutionally collected or paid if application therefor shall be\\n filed with the tax commission (i) in the case of tax paid by the\\n applicant to a person required to collect tax, within three years after\\n the date when the tax was payable by such person to the tax\\n commission . . . , or (ii) in the case of a tax, penalty or interest paid by\\n the applicant to the tax commission, within three years after the date\\n\\n\\n 3\\n\\f when such amount was payable under this article . . . . No refund or\\n credit shall be made to any person of tax which he collected from a\\n customer until he shall first establish to the satisfaction of the tax\\n commission, under such regulations as it may prescribe, that he has\\n repaid such tax to the customer.\\n\\nNYTL § 1139(a). Determinations made by the Commission in § 1139 proceedings\\n\\nmay not be “enjoined or reviewed . . . by any action or proceeding other than a\\n\\nproceeding under article seventy‐eight of the civil practice law and rules.” NYTL\\n\\n§ 1140.\\n\\n Guterman argues that § 1139 creates an implied private right of action and\\n\\nthat the district court thus erred in dismissing his claims. Guterman\\n\\nacknowledges that Circuit precedent “presents a formidable barrier to his\\n\\nclaims.” Reply Br. 1. We agree, and conclude that Guterman cannot surmount\\n\\nthat formidable barrier.\\n\\n In Estler v. Dunkin’ Brands, Inc., 691 F. App’x 3 (2d Cir. 2017), we faced a case\\n\\nsimilar to this one. There, as here, the plaintiffs alleged that they were\\n\\n“unlawfully charged sales tax in violation of New York state law” and brought\\n\\nsuit in federal court rather than filing an application under § 1139. Id. at 4. We\\n\\ndetermined that under Article 28’s statutory scheme, the § 1139\\n\\napplication‐and‐refund process is the exclusive remedy available for claims of\\n\\nunlawfully charged sales tax; indeed, we stated that § 1139 “makes clear that\\n\\n 4\\n\\f§ 1140’s exclusive administrative remedy is designed for precisely those cases in\\n\\nwhich a claimant alleges that a tax has been collected erroneously, illegally, or\\n\\nunconstitutionally.” Id. at 6 (internal quotation marks omitted). As a result, we\\n\\naffirmed the dismissal of the plaintiffs’ state common law and constitutional\\n\\nclaims, as well as their claims under New York General Business Law § 349,\\n\\nbecause the claims “fail[ed] to comply with the exclusive remedy provision of\\n\\n[NYTL] § 1140.” Id. at 4–5. This result was consistent with the unanimous practice\\n\\nof the district courts in this Circuit. See, e.g., Kupferstein v. TJX Cos., Inc., 2017 WL\\n\\n590324, at *2 (E.D.N.Y. Feb. 14, 2017); Gilbert v. Home Depot, 2014 WL 4923107, at *3\\n\\n(W.D.N.Y. Sept. 30, 2014); Cohen v. Hertz Corp., 2013 WL 9450421, at *3 (S.D.N.Y.\\n\\nNov. 26, 2013). It was also consistent with the practice of New York courts. See,\\n\\ne.g., CMSG Rest. Grp., LLC v. State, 40 N.Y.S.3d 412, 416 (1st Dep’t 2016)\\n\\n(“[P]laintiffs’ argument that the performances . . . were exempt from the sales\\n\\ntaxes at issue is not properly raised in this action, due to the statute’s exclusive\\n\\nremedy provision ([NYTL] § 1140).”); Davidson v. Rochester Tel. Corp., 558 N.Y.S.2d\\n\\n1009, 1011 (3d Dep’t 1990) (holding that claim that collection of sales tax was\\n\\n“improper, unnecessary, [and] unauthorized by law” must be “raised in an\\n\\nadministrative proceeding” (internal quotation marks omitted)); see also Metro\\n\\n\\n\\n\\n 5\\n\\fEnterp. Corp. v. N.Y. State Dep’t of Taxation and Finance, 2019 WL 1714928, at *2 (3d\\n\\nDep’t Apr. 18, 2019) (citing NYTL § 1140 for proposition that “a taxpayer\\n\\nchallenging a tax assessment must first exhaust the available administrative\\n\\nremedies prior to commencing an action”).\\n\\n We see no reason to decide otherwise in this case. Guterman’s principal\\n\\nargument is that Estler is distinguishable because in that case the sales tax\\n\\nerroneously collected was conveyed directly to New York, such that New York\\n\\nwas overpaid and the consumer’s natural remedy was a refund from the New\\n\\nYork treasury, while his contention in this case is that Costco charged the\\n\\nconsumer for an amount of tax that, under the regulations governing\\n\\nmanufacturers’ coupons, was due to New York from Costco. Thus, Guterman\\n\\nargues, New York received only what it was owed, and the amount collected\\n\\nfrom the consumer in effect unjustly enriched Costco, not New York. Even\\n\\nassuming arguendo that Guterman’s interpretation of the regulations is correct, his\\n\\nargument does not undermine the fact that § 1140 renders the remedies provided\\n\\nin § 1139 exclusive for claims that a sales tax was collected “illegally”—exactly\\n\\nwhat Guterman alleges happened here—as well as for taxes collected\\n\\n\\n\\n\\n 6\\n\\f“erroneously.” The plain meaning of the statute governs here, just as it did in\\n\\nEstler.\\n\\n Guterman’s other arguments fare no better. His argument that only tax\\n\\ncollectors, and not customers, are “required to file the refund claim under § 1139,”\\n\\nAppellant Br. 33, is unpersuasive in light of the clear and unambiguous text of\\n\\n§ 1139(a)(i) that persons who have paid tax “to a person required to collect tax”\\n\\nmay file an application with the Commission. His appeal to legislative history\\n\\nlikewise does not persuade us. See Riley v. Cty. of Broome, 95 N.Y.2d 455, 463–64\\n\\n(2000) (noting that though legislative history can be relevant when interpreting\\n\\nNew York statutes, “the words of the statute are the best evidence of the\\n\\nLegislature’s intent,” and “[a]s a general rule, unambiguous language of a statute\\n\\nis alone determinative”). Moreover, § 1140 makes clear that however § 1139 is\\n\\ninterpreted, the application‐and‐refund process contained therein is the exclusive\\n\\nremedy for claims of unlawful collection of sales tax. See Cruz v. TD Bank, N.A., 22\\n\\nN.Y.3d 61, 70–71 (2013) (stating that New York courts have “declined to recognize\\n\\na private right of action in instances where ‘the Legislature specifically considered\\n\\nand expressly provided for enforcement mechanisms’ in the statute itself”\\n\\n(quoting Mark G. v. Sabol, 93 N.Y.2d 710, 720 (1999)).\\n\\n\\n\\n\\n 7\\n\\f Guterman also contends that it would be futile for him to file an application\\n\\nunder § 1139 because he would be unable to satisfy the requirement, imposed by\\n\\n20 NYCRR § 534.2(a)(2)(i)(g), that applicants include in their application “a full\\n\\nexplanation of facts on which the claim is based, including substantiation of the\\n\\nbasis for and the amount of the claim.” Guterman argues that any\\n\\n“substantiation” of claims against Costco must include the amount of the\\n\\nmanufacturer’s reimbursement, which he says it is impossible for customers to\\n\\ndetermine. This claim is vitiated by the SAC itself, which describes precisely how\\n\\ncustomers can determine how much they were allegedly overcharged by Costco:\\n\\n [B]y manually totaling the full price of all “A” taxable items on the\\n receipt and applying the stated sales tax rate shown on the\\n receipt . . . customers [can] determine that Costco has charged Sales\\n Tax on the full price rather than the reduced price of purchased\\n items involving the coupons.\\n\\nA‐27. Guterman identifies no other information that he does not or could not\\n\\npossess that would be required to file an application. Furthermore, if the\\n\\nCommission ultimately denies his application, Guterman would be entitled to\\n\\nappeal that denial through an Article 78 proceeding. See NYTL § 1140.\\n\\nAccordingly, such an application would not be “futile.”\\n\\n It is undisputed that Guterman never filed an application under § 1139 for\\n\\nhis claims against Costco. Section 1139 proceedings are the sole remedy available\\n\\n 8\\n\\fto him for such claims. As a result, the district court properly dismissed his\\n\\nNYTL claims. 1 For the same reason, the district court properly dismissed\\n\\nGuterman’s unjust enrichment claims and his claim under New York General\\n\\nBusiness Law § 349. Guterman “cannot make an end run around the exclusive\\n\\nremedy provision in New York Tax Law by presenting the improper collection of\\n\\nsales tax as a claim under GBL § 349” or as an unjust enrichment claim.\\n\\nGuterman, 342 F. Supp. 3d at 480.\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n 1 Because we conclude that the “plain language” in §§ 1139 and 1140 “indicate\\nthe answer” to the question whether § 1139 contains an implied private right of action\\n(no), and because there is no “split of authority” on the question in New York courts,\\nwe decline to certify the question to the New York Court of Appeals. See McCarthy v.\\nOlin Corp., 119 F.3d 148, 153 (2d Cir. 1997).\\n\\n\\n 9\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2393,"cells":{"id":{"kind":"number","value":4629079,"string":"4,629,079"},"name":{"kind":"string","value":"UNITED STATES of America, Appellee, v. Souleymane BALDE, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Balde"},"decision_date":{"kind":"string","value":"2019-06-13"},"docket_number":{"kind":"string","value":"Docket 17-3337-cr; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Hall, Lynch, Gardephe\", \"parties\": \"\", \"opinions\": [{\"author\": \"GERARD E. LYNCH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17-3337-cr\\nUnited States v. Balde\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n\\n August Term, 2018\\n\\n Argued: November 6, 2018 Decided: June 13, 2019\\n\\n Docket No. 17-3337-cr\\n\\n\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n — v. —\\n\\n SOULEYMANE BALDE,\\n\\n Defendant-Appellant.\\n\\n\\n\\n\\nB e f o r e:\\n\\n HALL and LYNCH, Circuit Judges, and GARDEPHE, District Judge.*\\n\\n\\n\\n\\n Souleymane Balde, a citizen of Guinea, appeals his conviction for one\\ncount of unlawful possession of a firearm by an “alien . . . [who] is illegally or\\nunlawfully in the United States,” in violation of 18 U.S.C. § 922(g)(5)(A). He\\n\\n\\n*\\n Judge Paul G. Gardephe, of the United States District Court for the Southern\\nDistrict of New York, sitting by designation.\\n\\fchallenges his conviction on two grounds. First, he argues that at the time he\\npossessed the firearm he was not “in” the United States because he had not\\n“entered” the United States as that term is defined for the purposes of\\nimmigration law, and second, he argues that even if he was “in” the United\\nStates, he was not present “illegally or unlawfully.” Finding both arguments\\nunavailing, we AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n MATTHEW B. LARSEN, Federal Defenders of New York, New\\n York, NY, for Defendant-Appellant Souleymane Balde.\\n\\n ELINOR TARLOW, Assistant United States Attorney (Anna M.\\n Skotko, on the brief), for Geoffrey S. Berman, United\\n States Attorney for the Southern District of New York,\\n New York, NY.\\n\\n\\n\\n\\nGERARD E. LYNCH, Circuit Judge:\\n\\n Souleymane Balde pled guilty to one count of unlawful possession of a\\n\\nfirearm by an “alien . . . [who] is illegally or unlawfully in the United States,” in\\n\\nviolation of 18 U.S.C. § 922(g)(5)(A). On appeal, Balde argues that the charge\\n\\nagainst him must be dismissed for two reasons. First, he argues that to be “in the\\n\\nUnited States” within the meaning of the criminal statute, a noncitizen must have\\n\\n“entered” the United States as that term is defined in immigration law, and that\\n\\nmerely being physically present within our borders does not suffice. Second, he\\n\\n\\n\\n 2\\n\\fargues that, even if he was “in” the United States when he possessed a firearm,\\n\\nhe was not then here “illegally or unlawfully,” given the particular circumstances\\n\\nof his release from immigration detention and his immigration status.\\n\\n Because we find both arguments unavailing, we AFFIRM the judgment of\\n\\nthe district court.\\n\\n BACKGROUND\\n\\n Souleymane Balde is a citizen of Guinea. He first arrived in the United\\n\\nStates as a child, without lawful immigration status. In May 2005, Balde sought to\\n\\nadjust his status to become a lawful permanent resident, apparently pursuant to\\n\\nthe terms of a class action settlement agreement.1 To qualify for adjustment of\\n\\nstatus, Balde had to be interviewed by the United States Citizenship and\\n\\nImmigration Services (”USCIS”). His interview was originally scheduled for\\n\\nDecember 1, 2005.\\n\\n Several months after applying, however, Balde learned that his mother was\\n\\n\\n1\\n Balde claimed that he applied under the LULAC (Newman) settlement\\nagreement. That agreement “allow[ed] for those who meet certain requirements\\nto apply or reapply for Temporary Resident status under the 1986 amnesty\\nprogram of [8 U.S.C. § 1255].” News Release, USCIS, 2005 WL 1157041 (May 16,\\n2005) (extending deadline to apply for legalization under the LULAC (Newman)\\nsettlement agreement until December 31, 2005); see also 8 C.F.R. § 245a.14\\n(describing procedures for applying for legalization under LULAC and two other\\nclass action settlement agreements).\\n\\n 3\\n\\fseriously ill and that unless he traveled to Guinea to visit her soon, he risked\\n\\nmissing his last chance to see her alive. He asked his attorney to postpone the\\n\\ninterview in order for him to travel abroad. His lawyer told Balde that he would\\n\\ncontact USCIS to postpone the interview. The lawyer wrote to USCIS, stating that\\n\\nBalde would be unable to attend his interview due to unforeseen circumstances.\\n\\nBalde also applied for advance parole, a status which allows a noncitizen to\\n\\ntravel abroad temporarily and return to the United States without jeopardizing\\n\\nany existing legal status or pending application for immigration relief. USCIS\\n\\ngranted advance parole, but did not act on the request to postpone the interview.\\n\\n Balde did not appear for his scheduled interview, although he did not\\n\\nleave the United States until several weeks after the scheduled interview date\\n\\nand USCIS had not granted an adjournment. On January 27, 2006, while Balde\\n\\nwas out of the country, USCIS denied his application for adjustment of status\\n\\nbecause he had missed his interview and because it determined that the request\\n\\nfor postponement submitted by Balde’s attorney did not demonstrate sufficient\\n\\nreason to postpone it. The agency also revoked Balde’s advance parole.\\n\\n Balde's mother died on January 28, 2006. On March 17, 2006, Balde flew\\n\\nback to New York City and was stopped at John F. Kennedy Airport, where\\n\\n\\n\\n 4\\n\\fCustoms and Border Protection (“CBP”) agents informed him for the first time\\n\\nthat his advance parole had been revoked. CBP agents detained Balde and\\n\\ninitiated removal proceedings, charging him as inadmissible under 8 U.S.C.\\n\\n§ 1182(a)(7)(A)(i)(I), which applies to noncitizens seeking admission without a\\n\\nvalid visa, passport, or other suitable travel document. In due course, an\\n\\nimmigration judge issued an order of removal. Balde appealed, first to the Board\\n\\nof Immigration Appeals (“BIA”), which dismissed the appeal, and then to this\\n\\nCourt, which granted a stay of removal pending decision.\\n\\n While his appeal was pending before this Court and his removal was\\n\\nstayed, Balde sought supervised release from detention. The United States\\n\\nImmigration and Customs Enforcement Agency (“ICE”) agreed to grant such\\n\\nrelease, and notified Balde that he would be released under the Intensive\\n\\nSupervision Appearance Program (“ISAP”). First implemented in 2003, ISAP\\n\\noffers “an alternative[] to detention for final-order aliens” who are unable to be\\n\\nremoved, and provides for electronic monitoring and supervision for program\\n\\nparticipants. See Nguyen v. B.I. Inc., 435 F.Supp.2d 1109, 1112–13 (D. Or. 2006).\\n\\n Following a remand from this Court on consent of the parties, the BIA\\n\\nagain denied relief to Balde on December 19, 2008. Balde did not appeal to this\\n\\n\\n 5\\n\\fCourt, and the order of removal became final. Balde’s passport expired around\\n\\nthat time, however, and the government was therefore unable to effect his\\n\\ndeportation. He remained at liberty, under supervision. Immigration officials\\n\\nmodified the terms of that supervision in 2012. At no time, however, did Balde\\n\\nhold a visa or other legal authorization to enter the United States, and he\\n\\nremained subject to a final order of removal.\\n\\n On December 14, 2015 — seven years after his removal order became final\\n\\n— Balde was involved in a fight in a Bronx delicatessen. During the altercation,\\n\\nBalde pulled out a gun and pointed it at others inside the deli. He then left the\\n\\npremises, but returned a short while later and fired a single shot into the air from\\n\\nthe passenger seat of a vehicle outside the deli.\\n\\n When officers from the New York City Police Department responded to\\n\\nthe scene, witnesses identified the car from which the shot had been fired as it\\n\\npulled up to an intersection nearby. Police officers pursued and stopped the\\n\\nvehicle. Balde got out of the car from the front passenger seat, and was quickly\\n\\napprehended. A police search discovered four cartridges in Balde’s jacket pocket,\\n\\nand a revolver under the front passenger seat where Balde had been sitting.\\n\\n\\n\\n\\n 6\\n\\fWitnesses at the deli later identified Balde as the person who had fired the\\n\\ngunshot.\\n\\n A grand jury indicted Balde on one count of possession of a firearm in\\n\\nviolation of 18 U.S.C. § 922(g)(5). He moved to dismiss the indictment. After the\\n\\ndistrict court denied the motion he pled guilty pursuant to an agreement that\\n\\npreserved his right to appeal the district court’s denial of his motion. The district\\n\\ncourt sentenced Balde to 23 months’ imprisonment and two years of supervised\\n\\nrelease. He now appeals that conviction.\\n\\n DISCUSSION\\n\\n 18 U.S.C. § 922(g)(5)(A) prohibits an “alien . . . illegally or unlawfully in the\\n\\nUnited States” from possessing a firearm or ammunition. Balde argues that\\n\\nunder his particular immigration circumstances he was not “in” the United States\\n\\nwhen he possessed the firearm and that, even if he was, he was not here\\n\\n“illegally or unlawfully.”\\n\\n We review the denial of a motion to dismiss an indictment de novo. United\\n\\nStates v. Kirsch, 903 F.3d 213, 221 (2d Cir. 2018). If we were persuaded by either of\\n\\nBalde's arguments, we would be required to vacate the district court’s judgment\\n\\nand remand with instructions to dismiss the indictment. However, given the\\n\\n\\n\\n 7\\n\\fparticulars of Balde’s situation, we find that he is within the category of\\n\\nindividuals prohibited from possessing a firearm under 18 U.S.C. § 922(g)(5)(A),\\n\\nand we therefore affirm the judgment of the district court.\\n\\nI. “In the United States”\\n\\n Balde first argues that the prohibition of firearms possession in\\n\\n§ 922(g)(5)(A) is not triggered by mere physical presence within the territory of\\n\\nthe United States, but instead requires that a “defendant must have ‘entered’ the\\n\\ncountry as a matter of immigration law.” Appellant's Br. at 17. For the technical\\n\\npurposes of immigration law, Balde notes, he did not “enter” the United States\\n\\nwhen he returned in March 2006, and he should therefore be treated as if he were\\n\\nstill at the border seeking admission. Because he has never entered, Balde argues,\\n\\nhe is not “in” the United States within the meaning of 18 U.S.C. § 922(g)(5).\\n\\n As with most matters of statutory interpretation, we start with the text of\\n\\nthe statute. “Statutory analysis necessarily begins with the plain meaning of a\\n\\nlaw's text and, absent ambiguity, will generally end there.” Dobrova v. Holder, 607\\n\\nF.3d 297, 301 (2d Cir. 2010) (internal quotation marks and alterations omitted).\\n\\n“In conducting such an analysis, we review the statutory text, considering the\\n\\nordinary or natural meaning of the words chosen by Congress, as well as the\\n\\n\\n 8\\n\\fplacement and purpose of those words in the statutory scheme.” Id. (internal\\n\\nquotation marks omitted).\\n\\n The plain meaning here is clear. “In” is an ordinary, familiar English word,\\n\\nwith a well understood meaning. Its principal definition in the Oxford English\\n\\nDictionary is “[w]ithin the limits or bounds of, within (any place or thing).” In,\\n\\nOXFORD ENGLISH DICTIONARY (2d ed. 1989); see also Taniguchi v. Kan Pac. Saipan,\\n\\nLtd., 566 U.S. 560, 566–66 (2012) (relying on dictionary definitions to aid in\\n\\ninterpreting statutory text). Someone arriving to meet a friend might call to say\\n\\nthat she was “in the lobby;” she might tell her friend over dinner that she was “in\\n\\nTexas last weekend.” It would be clear to the friend in both cases that the speaker\\n\\nmeant that she was physically present in those locations at the time she indicated\\n\\nshe was “in” them. The plain meaning of the statute reflects that ordinary\\n\\nmeaning: a person, citizen or noncitizen, is “in” the United States when he is\\n\\npresent within its geographic borders. The text is therefore “absent ambiguity”\\n\\nand our analysis presumptively ends there. Dobrova, 607 F.3d at 301.\\n\\n Accepting Balde’s argument would invert the normal plain meaning rule\\n\\nof statutory interpretation by substituting a technical term-of-art meaning for the\\n\\nordinary plain meaning of a straightforward English word. “In” is not a technical\\n\\n\\n 9\\n\\fterm with a special meaning in immigration law. In order to adopt Balde’s\\n\\ninterpretation, we would have to replace the plain meaning of “is . . . in the\\n\\nUnited States” with the different meaning of “has entered the United States,” thus\\n\\nsubstituting a word that is “a specific legal term” within immigration law. See\\n\\nUnited States v. Lopez-Perera, 438 F.3d 932, 935 (9th Cir. 2006).\\n\\n We decline to do so for four reasons. First, that is simply not the language\\n\\nthat Congress chose. The statute deliberately uses the ordinary word “in,” not the\\n\\nmore technical term “entered.”\\n\\n Second, substituting “has entered” for “is in” would change the meaning\\n\\nof the statute, even with respect to one who unquestionably had “entered” the\\n\\nUnited States in the technical immigration sense of the word. The language\\n\\ndefining the crime refers to a noncitizen who “is illegally or unlawfully in the\\n\\nUnited States.” A noncitizen who enters the United States with a visa and\\n\\noverstays the term of that visa is clearly in the United States illegally but, at least\\n\\nif his decision to stay was made after his arrival, it would not be correct to say\\n\\nthat he entered the United States illegally.\\n\\n Third, we are interpreting a section of the criminal code that prohibits gun\\n\\npossession by various categories of person, not an immigration provision.\\n\\n\\n 10\\n\\fCriminal laws are ordinarily written to be understood by the non-specialist\\n\\nindividuals who are subject to the law, law enforcement officers, prosecutors,\\n\\nand jurors, not to be given arcane hidden meanings identifiable only by\\n\\nimmigration lawyers — and even by them only by identifying a “ghost” technical\\n\\nterm supposedly lurking behind the actual, non-technical words used in the\\n\\nstatute. See, e.g., Mitsui & Co. v. Am. Exp. Lines, Inc., 636 F.2d 807, 814 (2d Cir.\\n\\n1981) (“Legislation when not expressed in technical terms is addressed to the\\n\\ncommon run of men and is therefore to be understood according to the sense of\\n\\nthe thing, as the ordinary man has a right to rely on ordinary words addressed to\\n\\nhim.”) (citations omitted); see also Taniguichi, 566 U.S. at 568 (“That a definition is\\n\\nbroad enough to encompass one sense of a word does not establish that the word\\n\\nis ordinarily understood in that sense”).\\n\\n Fourth, Congress clearly knows how to import the technicalities of\\n\\nimmigration law into the federal criminal code when it so chooses. For example,\\n\\nin the subsection immediately following the one at issue here, Congress\\n\\nprohibited possession of firearms by noncitizens who were “admitted to the\\n\\nUnited States under a nonimmigrant visa (as that term is defined in section\\n\\n101(a)(26) of the Immigration and Nationality Act).” 18 U.S.C. § 922(g)(5)(B). The\\n\\n\\n 11\\n\\ffact that Congress did not choose similar technical language in 18 U.S.C.\\n\\n§ 922(g)(5)(A) counsels against interpreting “in” in any manner other than by\\n\\ngiving it its plain meaning.\\n\\n Balde bases his argument almost entirely on United States v. Lopez-Perera, a\\n\\ndecision in which the Ninth Circuit held that § 922(g)(5)(A) inapplicable to a\\n\\ndefendant who had not “entered” the United States within the meaning of\\n\\nimmigration law. 438 F.3d 932 (9th Cir. 2008). But the facts of that decision are\\n\\neasily distinguishable from those before us. In Lopez-Perera, the defendant drove\\n\\nhis van from Mexico into the San Ysidro Port of Entry in California, claiming to\\n\\nbe a United States citizen. Id. at 932–33. At the first checkpoint, an officer directed\\n\\nLopez-Perera to a secondary inspection area, where he “waited approximately\\n\\ntwenty-five minutes . . . and then drove his van toward the north exit of the San\\n\\nYsidro Port of Entry.” Id. at 933. Law enforcement officers stopped him before he\\n\\ncould leave the area and discovered a revolver in the van. Id. Thus, unlike Balde,\\n\\nLopez-Perera had never left the border area (he was stopped between inspection\\n\\nsites within the Port of Entry) and he had been across the geographic border for\\n\\nmere minutes, not (as Balde had) for years.\\n\\n\\n\\n\\n 12\\n\\f Lopez-Perera’s legal reasoning, moreover, is not persuasive. In holding that\\n\\n§ 922(g)(5)(A) requires an “entry,” the Ninth Circuit deferred to a regulation\\n\\npromulgated by the then-Bureau of Alcohol, Tobacco and Firearms (“ATF”). See\\n\\nid. at 934–35. That regulation purports to define “[a]lien[s] illegally or unlawfully\\n\\nin the United States” as noncitizens who “are not in valid immigrant,\\n\\nnonimmigrant or parole status,” including (among other categories) any\\n\\nnoncitizen “[w]ho unlawfully entered the United States without inspection and\\n\\nauthorization by an immigration officer and who has not been paroled into the\\n\\nUnited States under [8 U.S.C. § 1182(d)(5)(A)].” 27 C.F.R. § 478.11 (emphasis\\n\\nadded). The Ninth Circuit concluded that Lopez-Perera was not within this\\n\\ndefinition because he “was never free from official restraint and, therefore, never\\n\\nentered the United States.” Lopez-Perera, 438 F.3d at 935.\\n\\n But even if the ATF regulation were entitled to deference, it does not help\\n\\nBalde. First, the regulation does not purport to define being “in the United\\n\\nStates” as requiring an entry. Rather, it defines the entire phrase “[a]lien illegally\\n\\nor unlawfully in the United States,” thus conflating the two issues Balde wishes\\n\\nto separate. Second, it primarily defines the term as referencing noncitizens “not\\n\\nin valid immigrant, nonimmigrant, or parole status,” thus focusing primarily on\\n\\n\\n 13\\n\\fwhat makes their presence unlawful rather than on what constitutes being “in”\\n\\nthe country, and it does so in a way that encompasses Balde, who has never had\\n\\na valid immigrant or non-immigrant visa and is not, as explained in Part II below,\\n\\nin “parole status.” And third, the language of the regulation referencing\\n\\nnoncitizens who have “entered” the United States is only one example of those\\n\\ncovered by that definition; another category that is covered is “any alien . . .\\n\\n[u]nder an order of deportation, exclusion, or removal, . . . whether or not he or\\n\\nshe has left the United States.”27 C.F.R. § 478.11. That category makes no\\n\\nreference to whether or not the individual ever technically effected an “entry”\\n\\ninto the United States and by its plain language includes Balde, who was under\\n\\nan order of removal when he was found in possession of a firearm. Thus,\\n\\nhowever it might have affected Lopez-Perera, when read properly and fully the\\n\\nregulation offers no support to Balde’s argument.\\n\\n In any event, we are not required to defer to the ATF’s interpretation. Since\\n\\nLopez-Perera was decided, the Supreme Court has clarified that law enforcement\\n\\nagency interpretations of criminal statutes are not entitled to deference: “Whether\\n\\nthe Government interprets a criminal statute too broadly (as it sometimes does)\\n\\nor too narrowly . . . , a court has an obligation to correct its error.” Abramski v.\\n\\n\\n 14\\n\\fUnited States, 573 U.S. 169, 191 (2014); see also United States v. Gayle, 342 F.3d 89, 93\\n\\nn.4 (2d Cir. 2003) (noting this Court had requested additional briefing on the\\n\\nissue of deference and both parties agreed that a definition in 27 C.F.R. § 478.11\\n\\nwas not entitled to deference); United States v. Garcia, 707 F. App'x 231, 234 (5th\\n\\nCir. 2017) (“Following the Supreme Court's instruction that no deference is owed\\n\\nto agency interpretations of criminal statutes, specifically the ATF's interpretation\\n\\nof 18 U.S.C. § 922, we decline to show deference to the ATF regulation\\n\\ninterpreting § 922(g)(5)(A).”).\\n\\n Given these considerations, we decline to adopt the rule that Balde would\\n\\nlike us to derive from Lopez-Perera. We conclude instead that the “in the United\\n\\nStates” element of 18 U.S.C. § 922(g)(5)(A) requires only that a noncitizen be\\n\\nphysically present within the United States. It is uncontested that Balde was\\n\\nphysically present here, and so his conviction will stand unless he is able to show\\n\\nhe was not present illegally or unlawfully.\\n\\nII. “Illegally or Unlawfully” Present\\n\\n Balde next argues that, even assuming that he is considered to have been\\n\\n“in” the United States within the meaning of the statute, he was not present\\n\\n“illegally or unlawfully” because he was effectively paroled into the country\\n\\n\\n 15\\n\\fwhen he was released from detention in 2007. His argument essentially rests on\\n\\nwhat at best amounts to an administrative mistake. Balde did not seek parole as\\n\\nthat status is defined in 8 U.S.C. § 1182(d)(5)(A), nor did the government\\n\\nunderstand itself to be granting him parole at the time it released him from\\n\\ndetention. Balde argues, however, that, because he had not been finally ordered\\n\\nremoved when he was released from detention, the only statutory authority\\n\\nunder which ICE could have released him was the parole authority. Since Balde\\n\\nshould not have been found eligible for the program under which he sought and\\n\\nwas granted supervised release, he reasons, he must have been, sub silentio,\\n\\ngranted parole.\\n\\n It is helpful to contextualize Balde’s argument by reviewing the various\\n\\nstatutory authorities providing for the detention of noncitizens. The\\n\\ngovernment’s authority to detain an individual depends in part on whether that\\n\\nperson is seeking admission to the United States or, once having entered, is\\n\\nremovable for some reason. See, e.g., 8 U.S.C. § 1226(c) (describing certain\\n\\ncategories of noncitizens subject to mandatory detention); 8 U.S.C. § 1225(b)(2)(A)\\n\\n(describing detention during pendency of inadmissibility proceedings). Any\\n\\nstatus that Balde had when he left the United States had been revoked before he\\n\\n\\n 16\\n\\freturned. Thus, when he arrived at the airport, he was treated as seeking\\n\\nadmission. And an alien seeking admission, like Balde, “shall be detained”\\n\\npending a removal proceeding “if the examining immigration officer determines\\n\\nthat [he] is not clearly and beyond a doubt entitled to be admitted.” 8 U.S.C.\\n\\n§ 1225(b)(2)(A).\\n\\n The government may also “parole” any noncitizen “applying for\\n\\nadmission” into the United States “temporarily under such conditions as [it] may\\n\\nprescribe only on a case-by-case basis for urgent humanitarian reasons or\\n\\nsignificant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Parole does not change\\n\\nparolees’ immigration status: they remain “at the border” for the purposes of\\n\\nimmigration law and are treated as applicants for admission into the country.\\n\\nIbragimov v. Gonzales, 476 F.3d 125, 134 (2d Cir. 2007). But parolees’ physical\\n\\npresence within the United States cannot be said to be unlawful or illegal because\\n\\nit is authorized by the Attorney General, and parole has long been understood to\\n\\nconstitute lawful status. See Cruz-Miguel v. Holder, 650 F.3d 189, 198 (2d Cir. 2011)\\n\\n(“In other words, the United States accepts an alien paroled under\\n\\n§ 1182(d)(5)(A) into the country for as long as the humanitarian or public benefit\\n\\npurpose persists.”); see also United States v. Al Sabahi, 719 F.3d 305, 309 (4th Cir.\\n\\n\\n 17\\n\\f2013) (relying on 27 C.F.R. § 478.11 to note that a defendant is “not illegally or\\n\\nunlawfully in the United States if [he or she is] in valid parole status.”); Matter of\\n\\nCastillo-Padilla, 25 I. & N. Dec. 257, 259 (BIA 2010) (“An alien paroled into the\\n\\nUnited States under section 212(d)(5) of the Act is authorized to come into the United\\n\\nStates ‘temporarily’ for urgent humanitarian reasons or significant public benefit\\n\\nand under strict conditions defining his or her status. After the purpose of the\\n\\nparole has been served, the alien returns to custody, and his or her case is dealt\\n\\nwith in the same manner as any other applicant for admission.” (emphasis\\n\\nadded)).\\n\\n Balde does not dispute that, when he presented himself at the airport on\\n\\nhis return from Guinea, he was detained, not paroled, within the meaning of\\n\\nthese provisions. His argument focuses, rather, on what happened thereafter,\\n\\nduring the lengthy process of adjudicating the government’s effort to remove\\n\\nhim.\\n\\n If a noncitizen is administratively determined to be inadmissible, a\\n\\nremoval order is entered and further immigration detention is governed by 8\\n\\nU.S.C. § 1231. The government is required to detain such an individual during\\n\\nthe “removal period,” the 90-day period (extendable under certain\\n\\n\\n 18\\n\\fcircumstances, see 8 U.S.C. § 1231(a)(1)(C)), that begins on either (1) “[t]he date\\n\\nthe order of removal becomes administratively final,” (2) the date of a final order\\n\\nfrom a Court of Appeals “[i]f the removal order is judicially reviewed and if a\\n\\ncourt orders a stay of the removal,” or (3) the date of release from criminal\\n\\ndetention or confinement. See id. § 1231(a)(1)(B), (2). If, at the end of the removal\\n\\nperiod, the individual still has not been removed, he or she may be released\\n\\n“subject to supervision under regulations prescribed by the Attorney General.”\\n\\nId. § 1231(a)(3). But an individual deemed inadmissible by reason of criminal\\n\\nconduct, or one who is deemed a danger to the community or a risk not to\\n\\ncomply with the order of removal, “may be detained beyond the removal period\\n\\nand, if released, shall be subject to the terms of supervision in” 8 U.S.C.\\n\\n§ 1231(a)(3). Id. § 1231(a)(6). Even for individuals detained beyond the removal\\n\\nperiod, however, continued detention is presumptively limited to six months\\n\\nunless their removal is “reasonably foreseeable.” Clark v. Martinez, 543 U.S. 371,\\n\\n378 (2005); see also Zadvydas v. Davis, 533 U.S. 678, 701 (2001).\\n\\n At the time ICE granted Balde’s application for supervised release, he\\n\\nappears to have fallen outside the categories for which such release was\\n\\navailable. He was required to be detained when he presented himself at the\\n\\n\\n 19\\n\\fborder when was not admitted or paroled. And once a stay had been granted by\\n\\nthis Court pending appeal, until the final resolution of the appeal Balde had not\\n\\nentered the “removal period,” let alone reached the expiration of that period, at\\n\\nwhich point he would become eligible for release under the conditions set forth\\n\\nin § 1231(a)(3). See 8 U.S.C. § 1231(a)(6).\\n\\n In the documentation accompanying Balde’s release from detention, ICE\\n\\nstated that it was reviewing his continued detention pursuant to 8 C.F.R. § 241.4.\\n\\nThat regulation states that it addresses the government’s “authority to continue\\n\\nan alien in custody or grant release [under 8 U.S.C. § 1231(a)(6)] or parole under\\n\\n[8 U.S.C. § 1182(d)(5)(A)].” Id. § 241.4. Balde argues that he could not have been\\n\\ngranted release under § 1231(a)(6), even though the documentation suggests that\\n\\nis what ICE contemplated, because his appeal was still pending and thus the\\n\\nremoval period had not begun. He therefore argues that, if ICE released him\\n\\npursuant to 8 C.F.R. § 241.4, the Court should construe that release as parole.\\n\\n Nothing in the record, however, suggests that Balde applied for, or that the\\n\\ngovernment granted, humanitarian parole. Instead, Balde wrote that he was\\n\\nseeking supervised release, and the government released him under the ISAP\\n\\nprogram, which provides for the kind of release he requested. If, as Balde\\n\\n\\n 20\\n\\fcontends, he was in fact ineligible for that program because he was not yet\\n\\nsubject to a final order of removal, that would mean at most that the government\\n\\nmay have been without authority to release Balde from detention when it did.\\n\\nBut that does not convert his release into his being paroled into the country\\n\\nwithin the meaning of 8 U.S.C. § 1182(d)(5)(A), given the absence of any explicit\\n\\ndetermination by the government that such parole was contemplated and any\\n\\nconsideration of whether the “urgent humanitarian reasons or significant public\\n\\nbenefit” required for such discretionary relief existed. Indeed, Balde does not\\n\\ncontend that such reasons existed in his case.\\n\\n Balde also does not contend that any individual under an order of removal\\n\\nwho is properly released under supervision pursuant to § 1231(a)(6) is lawfully\\n\\npresent in the United States for purposes of 18 U.S.C. § 922(g)(5)(A), and any\\n\\nsuch contention would be unpersuasive in any event. A noncitizen who has been\\n\\ndetermined to be inadmissible and ordered removed is not lawfully in the United\\n\\nStates, whether he remains in detention or has been granted conditional liberty\\n\\nunder supervision while awaiting execution of the order of removal. Release on\\n\\nsupervision makes it lawful for such a person to be outside of jail; it does not\\n\\nchange his or her immigration status. Cf. United States v. Bravo-Muzquiz, 412 F.3d\\n\\n\\n 21\\n\\f1052, 1055 (9th Cir. 2005) (noncitizen’s release from custody on an immigration\\n\\nbond does not change his otherwise unlawful status). An alien under an order of\\n\\nremoval who has not been paroled, and who is permitted supervised release in\\n\\nerror when he had not yet become eligible for such release by virtue of expiration\\n\\nof his removal period (such as Balde), can have no greater lawful status than one\\n\\nwho was properly released under § 1231(a)(6).\\n\\n In any event, whatever may have been the case at the moment of Balde’s\\n\\nrelease from detention and admission to the ISAP program, the key inquiry for\\n\\npurposes of § 922(g)(5)(A) is whether a noncitizen “lacks lawful immigration\\n\\nstatus on the date charged in his indictment.” United States v. Lucio, 428 F.3d 519,\\n\\n525 (5th Cir. 2005); see also United States v. Latu, 479 F.3d 1153, 1157 (9th Cir. 2007)\\n\\n(noting that defendant was “found to be in possession of a handgun on May 15,\\n\\n2004,” and therefore “[t]o sustain a conviction under § 922(g)(5)(A), the\\n\\ngovernment must prove that, on that date, Latu was ‘illegally or unlawfully in the\\n\\nUnited States’” (emphasis added)). There is no dispute that, by the time of the\\n\\nconduct for which he was indicted, Balde had a final order of removal lodged\\n\\nagainst him, even if the government was unable to remove him at that point, and\\n\\nhad exceeded the 90-day removal period. Therefore, by that time, his continued\\n\\n\\n 22\\n\\fsupervised release from detention was firmly within the authority provided by 8\\n\\nU.S.C. § 1231(a)(6) and would not constitute parole.\\n\\n Having determined that Balde was not paroled, we have little trouble\\n\\nconcluding that he is within the category of individuals prohibited by\\n\\n§ 922(g)(5)(A) from possessing a firearm. In enacting the statutory scheme,\\n\\nCongress decided that, except for very limited categories of persons, noncitizens\\n\\nwho are not lawful permanent residents should be prohibited from possessing a\\n\\nfirearm in or affecting commerce. See generally 18 U.S.C. § 922(g)(5). Its choice of\\n\\nlanguage, which prohibits firearm possession both by most holders of\\n\\nnon-immigrant visas and by all those unlawfully present, covers large numbers\\n\\neven of those who have temporary authorization to enter the country, id. at\\n\\n§ 922(g)(5)(B), as well as those who have no such authorization, id. at\\n\\n§ 922(g)(5)(A). The facts of Balde’s case make clear that he is in the latter\\n\\ncategory: he has been finally adjudicated to be unlawfully present. Permission to\\n\\nreside at liberty under supervised conditions rather than in immigration\\n\\ndetention does not equate to a conferral of lawful status in the country, and\\n\\ntherefore does not confer permission to possess firearms. Our sister circuits have\\n\\nupheld convictions under § 922(g)(5)(A) of individuals who had an application\\n\\n\\n 23\\n\\ffor relief pending or who were in removal proceedings that were still in process\\n\\nand had not yet resulted in entry of a final removal order. See, e.g., Latu, 479 F.3d\\n\\nat 1158–59 (affirming conviction of defendant who had pending application for\\n\\nadjustment of status); United States v. Atandi, 376 F.3d 1186, 1190 (10th Cir. 2004)\\n\\n(finding defendant was illegally or unlawfully present when he failed to satisfy\\n\\nconditions of student visa, concluding “[t]he fact that he had not yet been\\n\\nordered removed is not relevant to the question of whether or not his presence in\\n\\nthe United States was then authorized”). We see no principled reason why such\\n\\nindividuals should be considered to be unlawfully present, even before entry of a\\n\\nfinal removal order, while Balde, whose removability had been fully litigated\\n\\nbefore the agency and this Court resulting in a final determination that he had no\\n\\nlegal right to be in the United States, should not be.\\n\\n Accordingly, in light of Balde’s immigration status at the time of the\\n\\nconduct underlying his arrest, we conclude that he was properly prosecuted\\n\\nunder Section 922(g)(5)(A).\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n 24\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4406332/\", \"author_raw\": \"GERARD E. LYNCH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HALL"},"judge2":{"kind":"string","value":"LYNCH"},"judge3":{"kind":"string","value":"GARDEPHE"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4629079/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Souleymane BALDE, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-06-13\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-3337-cr\nUnited States v. Balde\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n\n August Term, 2018\n\n Argued: November 6, 2018 Decided: June 13, 2019\n\n Docket No. 17-3337-cr\n\n\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n — v. —\n\n SOULEYMANE BALDE,\n\n Defendant-Appellant.\n\n\n\n\nB e f o r e:\n\n HALL and LYNCH, Circuit Judges, and GARDEPHE, District Judge.*\n\n\n\n\n Souleymane Balde, a citizen of Guinea, appeals his conviction for one\ncount of unlawful possession of a firearm by an “alien . . . [who] is illegally or\nunlawfully in the United States,” in violation of 18 U.S.C. § 922(g)(5)(A). He\n\n\n*\n Judge Paul G. Gardephe, of the United States District Court for the Southern\nDistrict of New York, sitting by designation.\n\fchallenges his conviction on two grounds. First, he argues that at the time he\npossessed the firearm he was not “in” the United States because he had not\n“entered” the United States as that term is defined for the purposes of\nimmigration law, and second, he argues that even if he was “in” the United\nStates, he was not present “illegally or unlawfully.” Finding both arguments\nunavailing, we AFFIRM the judgment of the district court.\n\n\n\n\n MATTHEW B. LARSEN, Federal Defenders of New York, New\n York, NY, for Defendant-Appellant Souleymane Balde.\n\n ELINOR TARLOW, Assistant United States Attorney (Anna M.\n Skotko, on the brief), for Geoffrey S. Berman, United\n States Attorney for the Southern District of New York,\n New York, NY.\n\n\n\n\nGERARD E. LYNCH, Circuit Judge:\n\n Souleymane Balde pled guilty to one count of unlawful possession of a\n\nfirearm by an “alien . . . [who] is illegally or unlawfully in the United States,” in\n\nviolation of 18 U.S.C. § 922(g)(5)(A). On appeal, Balde argues that the charge\n\nagainst him must be dismissed for two reasons. First, he argues that to be “in the\n\nUnited States” within the meaning of the criminal statute, a noncitizen must have\n\n“entered” the United States as that term is defined in immigration law, and that\n\nmerely being physically present within our borders does not suffice. Second, he\n\n\n\n 2\n\fargues that, even if he was “in” the United States when he possessed a firearm,\n\nhe was not then here “illegally or unlawfully,” given the particular circumstances\n\nof his release from immigration detention and his immigration status.\n\n Because we find both arguments unavailing, we AFFIRM the judgment of\n\nthe district court.\n\n BACKGROUND\n\n Souleymane Balde is a citizen of Guinea. He first arrived in the United\n\nStates as a child, without lawful immigration status. In May 2005, Balde sought to\n\nadjust his status to become a lawful permanent resident, apparently pursuant to\n\nthe terms of a class action settlement agreement.1 To qualify for adjustment of\n\nstatus, Balde had to be interviewed by the United States Citizenship and\n\nImmigration Services (”USCIS”). His interview was originally scheduled for\n\nDecember 1, 2005.\n\n Several months after applying, however, Balde learned that his mother was\n\n\n1\n Balde claimed that he applied under the LULAC (Newman) settlement\nagreement. That agreement “allow[ed] for those who meet certain requirements\nto apply or reapply for Temporary Resident status under the 1986 amnesty\nprogram of [8 U.S.C. § 1255].” News Release, USCIS, 2005 WL 1157041 (May 16,\n2005) (extending deadline to apply for legalization under the LULAC (Newman)\nsettlement agreement until December 31, 2005); see also 8 C.F.R. § 245a.14\n(describing procedures for applying for legalization under LULAC and two other\nclass action settlement agreements).\n\n 3\n\fseriously ill and that unless he traveled to Guinea to visit her soon, he risked\n\nmissing his last chance to see her alive. He asked his attorney to postpone the\n\ninterview in order for him to travel abroad. His lawyer told Balde that he would\n\ncontact USCIS to postpone the interview. The lawyer wrote to USCIS, stating that\n\nBalde would be unable to attend his interview due to unforeseen circumstances.\n\nBalde also applied for advance parole, a status which allows a noncitizen to\n\ntravel abroad temporarily and return to the United States without jeopardizing\n\nany existing legal status or pending application for immigration relief. USCIS\n\ngranted advance parole, but did not act on the request to postpone the interview.\n\n Balde did not appear for his scheduled interview, although he did not\n\nleave the United States until several weeks after the scheduled interview date\n\nand USCIS had not granted an adjournment. On January 27, 2006, while Balde\n\nwas out of the country, USCIS denied his application for adjustment of status\n\nbecause he had missed his interview and because it determined that the request\n\nfor postponement submitted by Balde’s attorney did not demonstrate sufficient\n\nreason to postpone it. The agency also revoked Balde’s advance parole.\n\n Balde's mother died on January 28, 2006. On March 17, 2006, Balde flew\n\nback to New York City and was stopped at John F. Kennedy Airport, where\n\n\n\n 4\n\fCustoms and Border Protection (“CBP”) agents informed him for the first time\n\nthat his advance parole had been revoked. CBP agents detained Balde and\n\ninitiated removal proceedings, charging him as inadmissible under 8 U.S.C.\n\n§ 1182(a)(7)(A)(i)(I), which applies to noncitizens seeking admission without a\n\nvalid visa, passport, or other suitable travel document. In due course, an\n\nimmigration judge issued an order of removal. Balde appealed, first to the Board\n\nof Immigration Appeals (“BIA”), which dismissed the appeal, and then to this\n\nCourt, which granted a stay of removal pending decision.\n\n While his appeal was pending before this Court and his removal was\n\nstayed, Balde sought supervised release from detention. The United States\n\nImmigration and Customs Enforcement Agency (“ICE”) agreed to grant such\n\nrelease, and notified Balde that he would be released under the Intensive\n\nSupervision Appearance Program (“ISAP”). First implemented in 2003, ISAP\n\noffers “an alternative[] to detention for final-order aliens” who are unable to be\n\nremoved, and provides for electronic monitoring and supervision for program\n\nparticipants. See Nguyen v. B.I. Inc., 435 F.Supp.2d 1109, 1112–13 (D. Or. 2006).\n\n Following a remand from this Court on consent of the parties, the BIA\n\nagain denied relief to Balde on December 19, 2008. Balde did not appeal to this\n\n\n 5\n\fCourt, and the order of removal became final. Balde’s passport expired around\n\nthat time, however, and the government was therefore unable to effect his\n\ndeportation. He remained at liberty, under supervision. Immigration officials\n\nmodified the terms of that supervision in 2012. At no time, however, did Balde\n\nhold a visa or other legal authorization to enter the United States, and he\n\nremained subject to a final order of removal.\n\n On December 14, 2015 — seven years after his removal order became final\n\n— Balde was involved in a fight in a Bronx delicatessen. During the altercation,\n\nBalde pulled out a gun and pointed it at others inside the deli. He then left the\n\npremises, but returned a short while later and fired a single shot into the air from\n\nthe passenger seat of a vehicle outside the deli.\n\n When officers from the New York City Police Department responded to\n\nthe scene, witnesses identified the car from which the shot had been fired as it\n\npulled up to an intersection nearby. Police officers pursued and stopped the\n\nvehicle. Balde got out of the car from the front passenger seat, and was quickly\n\napprehended. A police search discovered four cartridges in Balde’s jacket pocket,\n\nand a revolver under the front passenger seat where Balde had been sitting.\n\n\n\n\n 6\n\fWitnesses at the deli later identified Balde as the person who had fired the\n\ngunshot.\n\n A grand jury indicted Balde on one count of possession of a firearm in\n\nviolation of 18 U.S.C. § 922(g)(5). He moved to dismiss the indictment. After the\n\ndistrict court denied the motion he pled guilty pursuant to an agreement that\n\npreserved his right to appeal the district court’s denial of his motion. The district\n\ncourt sentenced Balde to 23 months’ imprisonment and two years of supervised\n\nrelease. He now appeals that conviction.\n\n DISCUSSION\n\n 18 U.S.C. § 922(g)(5)(A) prohibits an “alien . . . illegally or unlawfully in the\n\nUnited States” from possessing a firearm or ammunition. Balde argues that\n\nunder his particular immigration circumstances he was not “in” the United States\n\nwhen he possessed the firearm and that, even if he was, he was not here\n\n“illegally or unlawfully.”\n\n We review the denial of a motion to dismiss an indictment de novo. United\n\nStates v. Kirsch, 903 F.3d 213, 221 (2d Cir. 2018). If we were persuaded by either of\n\nBalde's arguments, we would be required to vacate the district court’s judgment\n\nand remand with instructions to dismiss the indictment. However, given the\n\n\n\n 7\n\fparticulars of Balde’s situation, we find that he is within the category of\n\nindividuals prohibited from possessing a firearm under 18 U.S.C. § 922(g)(5)(A),\n\nand we therefore affirm the judgment of the district court.\n\nI. “In the United States”\n\n Balde first argues that the prohibition of firearms possession in\n\n§ 922(g)(5)(A) is not triggered by mere physical presence within the territory of\n\nthe United States, but instead requires that a “defendant must have ‘entered’ the\n\ncountry as a matter of immigration law.” Appellant's Br. at 17. For the technical\n\npurposes of immigration law, Balde notes, he did not “enter” the United States\n\nwhen he returned in March 2006, and he should therefore be treated as if he were\n\nstill at the border seeking admission. Because he has never entered, Balde argues,\n\nhe is not “in” the United States within the meaning of 18 U.S.C. § 922(g)(5).\n\n As with most matters of statutory interpretation, we start with the text of\n\nthe statute. “Statutory analysis necessarily begins with the plain meaning of a\n\nlaw's text and, absent ambiguity, will generally end there.” Dobrova v. Holder, 607\n\nF.3d 297, 301 (2d Cir. 2010) (internal quotation marks and alterations omitted).\n\n“In conducting such an analysis, we review the statutory text, considering the\n\nordinary or natural meaning of the words chosen by Congress, as well as the\n\n\n 8\n\fplacement and purpose of those words in the statutory scheme.” Id. (internal\n\nquotation marks omitted).\n\n The plain meaning here is clear. “In” is an ordinary, familiar English word,\n\nwith a well understood meaning. Its principal definition in the Oxford English\n\nDictionary is “[w]ithin the limits or bounds of, within (any place or thing).” In,\n\nOXFORD ENGLISH DICTIONARY (2d ed. 1989); see also Taniguchi v. Kan Pac. Saipan,\n\nLtd., 566 U.S. 560, 566–66 (2012) (relying on dictionary definitions to aid in\n\ninterpreting statutory text). Someone arriving to meet a friend might call to say\n\nthat she was “in the lobby;” she might tell her friend over dinner that she was “in\n\nTexas last weekend.” It would be clear to the friend in both cases that the speaker\n\nmeant that she was physically present in those locations at the time she indicated\n\nshe was “in” them. The plain meaning of the statute reflects that ordinary\n\nmeaning: a person, citizen or noncitizen, is “in” the United States when he is\n\npresent within its geographic borders. The text is therefore “absent ambiguity”\n\nand our analysis presumptively ends there. Dobrova, 607 F.3d at 301.\n\n Accepting Balde’s argument would invert the normal plain meaning rule\n\nof statutory interpretation by substituting a technical term-of-art meaning for the\n\nordinary plain meaning of a straightforward English word. “In” is not a technical\n\n\n 9\n\fterm with a special meaning in immigration law. In order to adopt Balde’s\n\ninterpretation, we would have to replace the plain meaning of “is . . . in the\n\nUnited States” with the different meaning of “has entered the United States,” thus\n\nsubstituting a word that is “a specific legal term” within immigration law. See\n\nUnited States v. Lopez-Perera, 438 F.3d 932, 935 (9th Cir. 2006).\n\n We decline to do so for four reasons. First, that is simply not the language\n\nthat Congress chose. The statute deliberately uses the ordinary word “in,” not the\n\nmore technical term “entered.”\n\n Second, substituting “has entered” for “is in” would change the meaning\n\nof the statute, even with respect to one who unquestionably had “entered” the\n\nUnited States in the technical immigration sense of the word. The language\n\ndefining the crime refers to a noncitizen who “is illegally or unlawfully in the\n\nUnited States.” A noncitizen who enters the United States with a visa and\n\noverstays the term of that visa is clearly in the United States illegally but, at least\n\nif his decision to stay was made after his arrival, it would not be correct to say\n\nthat he entered the United States illegally.\n\n Third, we are interpreting a section of the criminal code that prohibits gun\n\npossession by various categories of person, not an immigration provision.\n\n\n 10\n\fCriminal laws are ordinarily written to be understood by the non-specialist\n\nindividuals who are subject to the law, law enforcement officers, prosecutors,\n\nand jurors, not to be given arcane hidden meanings identifiable only by\n\nimmigration lawyers — and even by them only by identifying a “ghost” technical\n\nterm supposedly lurking behind the actual, non-technical words used in the\n\nstatute. See, e.g., Mitsui & Co. v. Am. Exp. Lines, Inc., 636 F.2d 807, 814 (2d Cir.\n\n1981) (“Legislation when not expressed in technical terms is addressed to the\n\ncommon run of men and is therefore to be understood according to the sense of\n\nthe thing, as the ordinary man has a right to rely on ordinary words addressed to\n\nhim.”) (citations omitted); see also Taniguichi, 566 U.S. at 568 (“That a definition is\n\nbroad enough to encompass one sense of a word does not establish that the word\n\nis ordinarily understood in that sense”).\n\n Fourth, Congress clearly knows how to import the technicalities of\n\nimmigration law into the federal criminal code when it so chooses. For example,\n\nin the subsection immediately following the one at issue here, Congress\n\nprohibited possession of firearms by noncitizens who were “admitted to the\n\nUnited States under a nonimmigrant visa (as that term is defined in section\n\n101(a)(26) of the Immigration and Nationality Act).” 18 U.S.C. § 922(g)(5)(B). The\n\n\n 11\n\ffact that Congress did not choose similar technical language in 18 U.S.C.\n\n§ 922(g)(5)(A) counsels against interpreting “in” in any manner other than by\n\ngiving it its plain meaning.\n\n Balde bases his argument almost entirely on United States v. Lopez-Perera, a\n\ndecision in which the Ninth Circuit held that § 922(g)(5)(A) inapplicable to a\n\ndefendant who had not “entered” the United States within the meaning of\n\nimmigration law. 438 F.3d 932 (9th Cir. 2008). But the facts of that decision are\n\neasily distinguishable from those before us. In Lopez-Perera, the defendant drove\n\nhis van from Mexico into the San Ysidro Port of Entry in California, claiming to\n\nbe a United States citizen. Id. at 932–33. At the first checkpoint, an officer directed\n\nLopez-Perera to a secondary inspection area, where he “waited approximately\n\ntwenty-five minutes . . . and then drove his van toward the north exit of the San\n\nYsidro Port of Entry.” Id. at 933. Law enforcement officers stopped him before he\n\ncould leave the area and discovered a revolver in the van. Id. Thus, unlike Balde,\n\nLopez-Perera had never left the border area (he was stopped between inspection\n\nsites within the Port of Entry) and he had been across the geographic border for\n\nmere minutes, not (as Balde had) for years.\n\n\n\n\n 12\n\f Lopez-Perera’s legal reasoning, moreover, is not persuasive. In holding that\n\n§ 922(g)(5)(A) requires an “entry,” the Ninth Circuit deferred to a regulation\n\npromulgated by the then-Bureau of Alcohol, Tobacco and Firearms (“ATF”). See\n\nid. at 934–35. That regulation purports to define “[a]lien[s] illegally or unlawfully\n\nin the United States” as noncitizens who “are not in valid immigrant,\n\nnonimmigrant or parole status,” including (among other categories) any\n\nnoncitizen “[w]ho unlawfully entered the United States without inspection and\n\nauthorization by an immigration officer and who has not been paroled into the\n\nUnited States under [8 U.S.C. § 1182(d)(5)(A)].” 27 C.F.R. § 478.11 (emphasis\n\nadded). The Ninth Circuit concluded that Lopez-Perera was not within this\n\ndefinition because he “was never free from official restraint and, therefore, never\n\nentered the United States.” Lopez-Perera, 438 F.3d at 935.\n\n But even if the ATF regulation were entitled to deference, it does not help\n\nBalde. First, the regulation does not purport to define being “in the United\n\nStates” as requiring an entry. Rather, it defines the entire phrase “[a]lien illegally\n\nor unlawfully in the United States,” thus conflating the two issues Balde wishes\n\nto separate. Second, it primarily defines the term as referencing noncitizens “not\n\nin valid immigrant, nonimmigrant, or parole status,” thus focusing primarily on\n\n\n 13\n\fwhat makes their presence unlawful rather than on what constitutes being “in”\n\nthe country, and it does so in a way that encompasses Balde, who has never had\n\na valid immigrant or non-immigrant visa and is not, as explained in Part II below,\n\nin “parole status.” And third, the language of the regulation referencing\n\nnoncitizens who have “entered” the United States is only one example of those\n\ncovered by that definition; another category that is covered is “any alien . . .\n\n[u]nder an order of deportation, exclusion, or removal, . . . whether or not he or\n\nshe has left the United States.”27 C.F.R. § 478.11. That category makes no\n\nreference to whether or not the individual ever technically effected an “entry”\n\ninto the United States and by its plain language includes Balde, who was under\n\nan order of removal when he was found in possession of a firearm. Thus,\n\nhowever it might have affected Lopez-Perera, when read properly and fully the\n\nregulation offers no support to Balde’s argument.\n\n In any event, we are not required to defer to the ATF’s interpretation. Since\n\nLopez-Perera was decided, the Supreme Court has clarified that law enforcement\n\nagency interpretations of criminal statutes are not entitled to deference: “Whether\n\nthe Government interprets a criminal statute too broadly (as it sometimes does)\n\nor too narrowly . . . , a court has an obligation to correct its error.” Abramski v.\n\n\n 14\n\fUnited States, 573 U.S. 169, 191 (2014); see also United States v. Gayle, 342 F.3d 89, 93\n\nn.4 (2d Cir. 2003) (noting this Court had requested additional briefing on the\n\nissue of deference and both parties agreed that a definition in 27 C.F.R. § 478.11\n\nwas not entitled to deference); United States v. Garcia, 707 F. App'x 231, 234 (5th\n\nCir. 2017) (“Following the Supreme Court's instruction that no deference is owed\n\nto agency interpretations of criminal statutes, specifically the ATF's interpretation\n\nof 18 U.S.C. § 922, we decline to show deference to the ATF regulation\n\ninterpreting § 922(g)(5)(A).”).\n\n Given these considerations, we decline to adopt the rule that Balde would\n\nlike us to derive from Lopez-Perera. We conclude instead that the “in the United\n\nStates” element of 18 U.S.C. § 922(g)(5)(A) requires only that a noncitizen be\n\nphysically present within the United States. It is uncontested that Balde was\n\nphysically present here, and so his conviction will stand unless he is able to show\n\nhe was not present illegally or unlawfully.\n\nII. “Illegally or Unlawfully” Present\n\n Balde next argues that, even assuming that he is considered to have been\n\n“in” the United States within the meaning of the statute, he was not present\n\n“illegally or unlawfully” because he was effectively paroled into the country\n\n\n 15\n\fwhen he was released from detention in 2007. His argument essentially rests on\n\nwhat at best amounts to an administrative mistake. Balde did not seek parole as\n\nthat status is defined in 8 U.S.C. § 1182(d)(5)(A), nor did the government\n\nunderstand itself to be granting him parole at the time it released him from\n\ndetention. Balde argues, however, that, because he had not been finally ordered\n\nremoved when he was released from detention, the only statutory authority\n\nunder which ICE could have released him was the parole authority. Since Balde\n\nshould not have been found eligible for the program under which he sought and\n\nwas granted supervised release, he reasons, he must have been, sub silentio,\n\ngranted parole.\n\n It is helpful to contextualize Balde’s argument by reviewing the various\n\nstatutory authorities providing for the detention of noncitizens. The\n\ngovernment’s authority to detain an individual depends in part on whether that\n\nperson is seeking admission to the United States or, once having entered, is\n\nremovable for some reason. See, e.g., 8 U.S.C. § 1226(c) (describing certain\n\ncategories of noncitizens subject to mandatory detention); 8 U.S.C. § 1225(b)(2)(A)\n\n(describing detention during pendency of inadmissibility proceedings). Any\n\nstatus that Balde had when he left the United States had been revoked before he\n\n\n 16\n\freturned. Thus, when he arrived at the airport, he was treated as seeking\n\nadmission. And an alien seeking admission, like Balde, “shall be detained”\n\npending a removal proceeding “if the examining immigration officer determines\n\nthat [he] is not clearly and beyond a doubt entitled to be admitted.” 8 U.S.C.\n\n§ 1225(b)(2)(A).\n\n The government may also “parole” any noncitizen “applying for\n\nadmission” into the United States “temporarily under such conditions as [it] may\n\nprescribe only on a case-by-case basis for urgent humanitarian reasons or\n\nsignificant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Parole does not change\n\nparolees’ immigration status: they remain “at the border” for the purposes of\n\nimmigration law and are treated as applicants for admission into the country.\n\nIbragimov v. Gonzales, 476 F.3d 125, 134 (2d Cir. 2007). But parolees’ physical\n\npresence within the United States cannot be said to be unlawful or illegal because\n\nit is authorized by the Attorney General, and parole has long been understood to\n\nconstitute lawful status. See Cruz-Miguel v. Holder, 650 F.3d 189, 198 (2d Cir. 2011)\n\n(“In other words, the United States accepts an alien paroled under\n\n§ 1182(d)(5)(A) into the country for as long as the humanitarian or public benefit\n\npurpose persists.”); see also United States v. Al Sabahi, 719 F.3d 305, 309 (4th Cir.\n\n\n 17\n\f2013) (relying on 27 C.F.R. § 478.11 to note that a defendant is “not illegally or\n\nunlawfully in the United States if [he or she is] in valid parole status.”); Matter of\n\nCastillo-Padilla, 25 I. & N. Dec. 257, 259 (BIA 2010) (“An alien paroled into the\n\nUnited States under section 212(d)(5) of the Act is authorized to come into the United\n\nStates ‘temporarily’ for urgent humanitarian reasons or significant public benefit\n\nand under strict conditions defining his or her status. After the purpose of the\n\nparole has been served, the alien returns to custody, and his or her case is dealt\n\nwith in the same manner as any other applicant for admission.” (emphasis\n\nadded)).\n\n Balde does not dispute that, when he presented himself at the airport on\n\nhis return from Guinea, he was detained, not paroled, within the meaning of\n\nthese provisions. His argument focuses, rather, on what happened thereafter,\n\nduring the lengthy process of adjudicating the government’s effort to remove\n\nhim.\n\n If a noncitizen is administratively determined to be inadmissible, a\n\nremoval order is entered and further immigration detention is governed by 8\n\nU.S.C. § 1231. The government is required to detain such an individual during\n\nthe “removal period,” the 90-day period (extendable under certain\n\n\n 18\n\fcircumstances, see 8 U.S.C. § 1231(a)(1)(C)), that begins on either (1) “[t]he date\n\nthe order of removal becomes administratively final,” (2) the date of a final order\n\nfrom a Court of Appeals “[i]f the removal order is judicially reviewed and if a\n\ncourt orders a stay of the removal,” or (3) the date of release from criminal\n\ndetention or confinement. See id. § 1231(a)(1)(B), (2). If, at the end of the removal\n\nperiod, the individual still has not been removed, he or she may be released\n\n“subject to supervision under regulations prescribed by the Attorney General.”\n\nId. § 1231(a)(3). But an individual deemed inadmissible by reason of criminal\n\nconduct, or one who is deemed a danger to the community or a risk not to\n\ncomply with the order of removal, “may be detained beyond the removal period\n\nand, if released, shall be subject to the terms of supervision in” 8 U.S.C.\n\n§ 1231(a)(3). Id. § 1231(a)(6). Even for individuals detained beyond the removal\n\nperiod, however, continued detention is presumptively limited to six months\n\nunless their removal is “reasonably foreseeable.” Clark v. Martinez, 543 U.S. 371,\n\n378 (2005); see also Zadvydas v. Davis, 533 U.S. 678, 701 (2001).\n\n At the time ICE granted Balde’s application for supervised release, he\n\nappears to have fallen outside the categories for which such release was\n\navailable. He was required to be detained when he presented himself at the\n\n\n 19\n\fborder when was not admitted or paroled. And once a stay had been granted by\n\nthis Court pending appeal, until the final resolution of the appeal Balde had not\n\nentered the “removal period,” let alone reached the expiration of that period, at\n\nwhich point he would become eligible for release under the conditions set forth\n\nin § 1231(a)(3). See 8 U.S.C. § 1231(a)(6).\n\n In the documentation accompanying Balde’s release from detention, ICE\n\nstated that it was reviewing his continued detention pursuant to 8 C.F.R. § 241.4.\n\nThat regulation states that it addresses the government’s “authority to continue\n\nan alien in custody or grant release [under 8 U.S.C. § 1231(a)(6)] or parole under\n\n[8 U.S.C. § 1182(d)(5)(A)].” Id. § 241.4. Balde argues that he could not have been\n\ngranted release under § 1231(a)(6), even though the documentation suggests that\n\nis what ICE contemplated, because his appeal was still pending and thus the\n\nremoval period had not begun. He therefore argues that, if ICE released him\n\npursuant to 8 C.F.R. § 241.4, the Court should construe that release as parole.\n\n Nothing in the record, however, suggests that Balde applied for, or that the\n\ngovernment granted, humanitarian parole. Instead, Balde wrote that he was\n\nseeking supervised release, and the government released him under the ISAP\n\nprogram, which provides for the kind of release he requested. If, as Balde\n\n\n 20\n\fcontends, he was in fact ineligible for that program because he was not yet\n\nsubject to a final order of removal, that would mean at most that the government\n\nmay have been without authority to release Balde from detention when it did.\n\nBut that does not convert his release into his being paroled into the country\n\nwithin the meaning of 8 U.S.C. § 1182(d)(5)(A), given the absence of any explicit\n\ndetermination by the government that such parole was contemplated and any\n\nconsideration of whether the “urgent humanitarian reasons or significant public\n\nbenefit” required for such discretionary relief existed. Indeed, Balde does not\n\ncontend that such reasons existed in his case.\n\n Balde also does not contend that any individual under an order of removal\n\nwho is properly released under supervision pursuant to § 1231(a)(6) is lawfully\n\npresent in the United States for purposes of 18 U.S.C. § 922(g)(5)(A), and any\n\nsuch contention would be unpersuasive in any event. A noncitizen who has been\n\ndetermined to be inadmissible and ordered removed is not lawfully in the United\n\nStates, whether he remains in detention or has been granted conditional liberty\n\nunder supervision while awaiting execution of the order of removal. Release on\n\nsupervision makes it lawful for such a person to be outside of jail; it does not\n\nchange his or her immigration status. Cf. United States v. Bravo-Muzquiz, 412 F.3d\n\n\n 21\n\f1052, 1055 (9th Cir. 2005) (noncitizen’s release from custody on an immigration\n\nbond does not change his otherwise unlawful status). An alien under an order of\n\nremoval who has not been paroled, and who is permitted supervised release in\n\nerror when he had not yet become eligible for such release by virtue of expiration\n\nof his removal period (such as Balde), can have no greater lawful status than one\n\nwho was properly released under § 1231(a)(6).\n\n In any event, whatever may have been the case at the moment of Balde’s\n\nrelease from detention and admission to the ISAP program, the key inquiry for\n\npurposes of § 922(g)(5)(A) is whether a noncitizen “lacks lawful immigration\n\nstatus on the date charged in his indictment.” United States v. Lucio, 428 F.3d 519,\n\n525 (5th Cir. 2005); see also United States v. Latu, 479 F.3d 1153, 1157 (9th Cir. 2007)\n\n(noting that defendant was “found to be in possession of a handgun on May 15,\n\n2004,” and therefore “[t]o sustain a conviction under § 922(g)(5)(A), the\n\ngovernment must prove that, on that date, Latu was ‘illegally or unlawfully in the\n\nUnited States’” (emphasis added)). There is no dispute that, by the time of the\n\nconduct for which he was indicted, Balde had a final order of removal lodged\n\nagainst him, even if the government was unable to remove him at that point, and\n\nhad exceeded the 90-day removal period. Therefore, by that time, his continued\n\n\n 22\n\fsupervised release from detention was firmly within the authority provided by 8\n\nU.S.C. § 1231(a)(6) and would not constitute parole.\n\n Having determined that Balde was not paroled, we have little trouble\n\nconcluding that he is within the category of individuals prohibited by\n\n§ 922(g)(5)(A) from possessing a firearm. In enacting the statutory scheme,\n\nCongress decided that, except for very limited categories of persons, noncitizens\n\nwho are not lawful permanent residents should be prohibited from possessing a\n\nfirearm in or affecting commerce. See generally 18 U.S.C. § 922(g)(5). Its choice of\n\nlanguage, which prohibits firearm possession both by most holders of\n\nnon-immigrant visas and by all those unlawfully present, covers large numbers\n\neven of those who have temporary authorization to enter the country, id. at\n\n§ 922(g)(5)(B), as well as those who have no such authorization, id. at\n\n§ 922(g)(5)(A). The facts of Balde’s case make clear that he is in the latter\n\ncategory: he has been finally adjudicated to be unlawfully present. Permission to\n\nreside at liberty under supervised conditions rather than in immigration\n\ndetention does not equate to a conferral of lawful status in the country, and\n\ntherefore does not confer permission to possess firearms. Our sister circuits have\n\nupheld convictions under § 922(g)(5)(A) of individuals who had an application\n\n\n 23\n\ffor relief pending or who were in removal proceedings that were still in process\n\nand had not yet resulted in entry of a final removal order. See, e.g., Latu, 479 F.3d\n\nat 1158–59 (affirming conviction of defendant who had pending application for\n\nadjustment of status); United States v. Atandi, 376 F.3d 1186, 1190 (10th Cir. 2004)\n\n(finding defendant was illegally or unlawfully present when he failed to satisfy\n\nconditions of student visa, concluding “[t]he fact that he had not yet been\n\nordered removed is not relevant to the question of whether or not his presence in\n\nthe United States was then authorized”). We see no principled reason why such\n\nindividuals should be considered to be unlawfully present, even before entry of a\n\nfinal removal order, while Balde, whose removability had been fully litigated\n\nbefore the agency and this Court resulting in a final determination that he had no\n\nlegal right to be in the United States, should not be.\n\n Accordingly, in light of Balde’s immigration status at the time of the\n\nconduct underlying his arrest, we conclude that he was properly prosecuted\n\nunder Section 922(g)(5)(A).\n\n CONCLUSION\n\n For the foregoing reasons, we AFFIRM the judgment of the district court.\n\n\n\n\n 24\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Appellee, v. Souleymane BALDE, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-06-13\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17-3337-cr\\nUnited States v. Balde\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n\\n August Term, 2018\\n\\n Argued: November 6, 2018 Decided: June 13, 2019\\n\\n Docket No. 17-3337-cr\\n\\n\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n — v. —\\n\\n SOULEYMANE BALDE,\\n\\n Defendant-Appellant.\\n\\n\\n\\n\\nB e f o r e:\\n\\n HALL and LYNCH, Circuit Judges, and GARDEPHE, District Judge.*\\n\\n\\n\\n\\n Souleymane Balde, a citizen of Guinea, appeals his conviction for one\\ncount of unlawful possession of a firearm by an “alien . . . [who] is illegally or\\nunlawfully in the United States,” in violation of 18 U.S.C. § 922(g)(5)(A). He\\n\\n\\n*\\n Judge Paul G. Gardephe, of the United States District Court for the Southern\\nDistrict of New York, sitting by designation.\\n\\fchallenges his conviction on two grounds. First, he argues that at the time he\\npossessed the firearm he was not “in” the United States because he had not\\n“entered” the United States as that term is defined for the purposes of\\nimmigration law, and second, he argues that even if he was “in” the United\\nStates, he was not present “illegally or unlawfully.” Finding both arguments\\nunavailing, we AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n MATTHEW B. LARSEN, Federal Defenders of New York, New\\n York, NY, for Defendant-Appellant Souleymane Balde.\\n\\n ELINOR TARLOW, Assistant United States Attorney (Anna M.\\n Skotko, on the brief), for Geoffrey S. Berman, United\\n States Attorney for the Southern District of New York,\\n New York, NY.\\n\\n\\n\\n\\nGERARD E. LYNCH, Circuit Judge:\\n\\n Souleymane Balde pled guilty to one count of unlawful possession of a\\n\\nfirearm by an “alien . . . [who] is illegally or unlawfully in the United States,” in\\n\\nviolation of 18 U.S.C. § 922(g)(5)(A). On appeal, Balde argues that the charge\\n\\nagainst him must be dismissed for two reasons. First, he argues that to be “in the\\n\\nUnited States” within the meaning of the criminal statute, a noncitizen must have\\n\\n“entered” the United States as that term is defined in immigration law, and that\\n\\nmerely being physically present within our borders does not suffice. Second, he\\n\\n\\n\\n 2\\n\\fargues that, even if he was “in” the United States when he possessed a firearm,\\n\\nhe was not then here “illegally or unlawfully,” given the particular circumstances\\n\\nof his release from immigration detention and his immigration status.\\n\\n Because we find both arguments unavailing, we AFFIRM the judgment of\\n\\nthe district court.\\n\\n BACKGROUND\\n\\n Souleymane Balde is a citizen of Guinea. He first arrived in the United\\n\\nStates as a child, without lawful immigration status. In May 2005, Balde sought to\\n\\nadjust his status to become a lawful permanent resident, apparently pursuant to\\n\\nthe terms of a class action settlement agreement.1 To qualify for adjustment of\\n\\nstatus, Balde had to be interviewed by the United States Citizenship and\\n\\nImmigration Services (”USCIS”). His interview was originally scheduled for\\n\\nDecember 1, 2005.\\n\\n Several months after applying, however, Balde learned that his mother was\\n\\n\\n1\\n Balde claimed that he applied under the LULAC (Newman) settlement\\nagreement. That agreement “allow[ed] for those who meet certain requirements\\nto apply or reapply for Temporary Resident status under the 1986 amnesty\\nprogram of [8 U.S.C. § 1255].” News Release, USCIS, 2005 WL 1157041 (May 16,\\n2005) (extending deadline to apply for legalization under the LULAC (Newman)\\nsettlement agreement until December 31, 2005); see also 8 C.F.R. § 245a.14\\n(describing procedures for applying for legalization under LULAC and two other\\nclass action settlement agreements).\\n\\n 3\\n\\fseriously ill and that unless he traveled to Guinea to visit her soon, he risked\\n\\nmissing his last chance to see her alive. He asked his attorney to postpone the\\n\\ninterview in order for him to travel abroad. His lawyer told Balde that he would\\n\\ncontact USCIS to postpone the interview. The lawyer wrote to USCIS, stating that\\n\\nBalde would be unable to attend his interview due to unforeseen circumstances.\\n\\nBalde also applied for advance parole, a status which allows a noncitizen to\\n\\ntravel abroad temporarily and return to the United States without jeopardizing\\n\\nany existing legal status or pending application for immigration relief. USCIS\\n\\ngranted advance parole, but did not act on the request to postpone the interview.\\n\\n Balde did not appear for his scheduled interview, although he did not\\n\\nleave the United States until several weeks after the scheduled interview date\\n\\nand USCIS had not granted an adjournment. On January 27, 2006, while Balde\\n\\nwas out of the country, USCIS denied his application for adjustment of status\\n\\nbecause he had missed his interview and because it determined that the request\\n\\nfor postponement submitted by Balde’s attorney did not demonstrate sufficient\\n\\nreason to postpone it. The agency also revoked Balde’s advance parole.\\n\\n Balde's mother died on January 28, 2006. On March 17, 2006, Balde flew\\n\\nback to New York City and was stopped at John F. Kennedy Airport, where\\n\\n\\n\\n 4\\n\\fCustoms and Border Protection (“CBP”) agents informed him for the first time\\n\\nthat his advance parole had been revoked. CBP agents detained Balde and\\n\\ninitiated removal proceedings, charging him as inadmissible under 8 U.S.C.\\n\\n§ 1182(a)(7)(A)(i)(I), which applies to noncitizens seeking admission without a\\n\\nvalid visa, passport, or other suitable travel document. In due course, an\\n\\nimmigration judge issued an order of removal. Balde appealed, first to the Board\\n\\nof Immigration Appeals (“BIA”), which dismissed the appeal, and then to this\\n\\nCourt, which granted a stay of removal pending decision.\\n\\n While his appeal was pending before this Court and his removal was\\n\\nstayed, Balde sought supervised release from detention. The United States\\n\\nImmigration and Customs Enforcement Agency (“ICE”) agreed to grant such\\n\\nrelease, and notified Balde that he would be released under the Intensive\\n\\nSupervision Appearance Program (“ISAP”). First implemented in 2003, ISAP\\n\\noffers “an alternative[] to detention for final-order aliens” who are unable to be\\n\\nremoved, and provides for electronic monitoring and supervision for program\\n\\nparticipants. See Nguyen v. B.I. Inc., 435 F.Supp.2d 1109, 1112–13 (D. Or. 2006).\\n\\n Following a remand from this Court on consent of the parties, the BIA\\n\\nagain denied relief to Balde on December 19, 2008. Balde did not appeal to this\\n\\n\\n 5\\n\\fCourt, and the order of removal became final. Balde’s passport expired around\\n\\nthat time, however, and the government was therefore unable to effect his\\n\\ndeportation. He remained at liberty, under supervision. Immigration officials\\n\\nmodified the terms of that supervision in 2012. At no time, however, did Balde\\n\\nhold a visa or other legal authorization to enter the United States, and he\\n\\nremained subject to a final order of removal.\\n\\n On December 14, 2015 — seven years after his removal order became final\\n\\n— Balde was involved in a fight in a Bronx delicatessen. During the altercation,\\n\\nBalde pulled out a gun and pointed it at others inside the deli. He then left the\\n\\npremises, but returned a short while later and fired a single shot into the air from\\n\\nthe passenger seat of a vehicle outside the deli.\\n\\n When officers from the New York City Police Department responded to\\n\\nthe scene, witnesses identified the car from which the shot had been fired as it\\n\\npulled up to an intersection nearby. Police officers pursued and stopped the\\n\\nvehicle. Balde got out of the car from the front passenger seat, and was quickly\\n\\napprehended. A police search discovered four cartridges in Balde’s jacket pocket,\\n\\nand a revolver under the front passenger seat where Balde had been sitting.\\n\\n\\n\\n\\n 6\\n\\fWitnesses at the deli later identified Balde as the person who had fired the\\n\\ngunshot.\\n\\n A grand jury indicted Balde on one count of possession of a firearm in\\n\\nviolation of 18 U.S.C. § 922(g)(5). He moved to dismiss the indictment. After the\\n\\ndistrict court denied the motion he pled guilty pursuant to an agreement that\\n\\npreserved his right to appeal the district court’s denial of his motion. The district\\n\\ncourt sentenced Balde to 23 months’ imprisonment and two years of supervised\\n\\nrelease. He now appeals that conviction.\\n\\n DISCUSSION\\n\\n 18 U.S.C. § 922(g)(5)(A) prohibits an “alien . . . illegally or unlawfully in the\\n\\nUnited States” from possessing a firearm or ammunition. Balde argues that\\n\\nunder his particular immigration circumstances he was not “in” the United States\\n\\nwhen he possessed the firearm and that, even if he was, he was not here\\n\\n“illegally or unlawfully.”\\n\\n We review the denial of a motion to dismiss an indictment de novo. United\\n\\nStates v. Kirsch, 903 F.3d 213, 221 (2d Cir. 2018). If we were persuaded by either of\\n\\nBalde's arguments, we would be required to vacate the district court’s judgment\\n\\nand remand with instructions to dismiss the indictment. However, given the\\n\\n\\n\\n 7\\n\\fparticulars of Balde’s situation, we find that he is within the category of\\n\\nindividuals prohibited from possessing a firearm under 18 U.S.C. § 922(g)(5)(A),\\n\\nand we therefore affirm the judgment of the district court.\\n\\nI. “In the United States”\\n\\n Balde first argues that the prohibition of firearms possession in\\n\\n§ 922(g)(5)(A) is not triggered by mere physical presence within the territory of\\n\\nthe United States, but instead requires that a “defendant must have ‘entered’ the\\n\\ncountry as a matter of immigration law.” Appellant's Br. at 17. For the technical\\n\\npurposes of immigration law, Balde notes, he did not “enter” the United States\\n\\nwhen he returned in March 2006, and he should therefore be treated as if he were\\n\\nstill at the border seeking admission. Because he has never entered, Balde argues,\\n\\nhe is not “in” the United States within the meaning of 18 U.S.C. § 922(g)(5).\\n\\n As with most matters of statutory interpretation, we start with the text of\\n\\nthe statute. “Statutory analysis necessarily begins with the plain meaning of a\\n\\nlaw's text and, absent ambiguity, will generally end there.” Dobrova v. Holder, 607\\n\\nF.3d 297, 301 (2d Cir. 2010) (internal quotation marks and alterations omitted).\\n\\n“In conducting such an analysis, we review the statutory text, considering the\\n\\nordinary or natural meaning of the words chosen by Congress, as well as the\\n\\n\\n 8\\n\\fplacement and purpose of those words in the statutory scheme.” Id. (internal\\n\\nquotation marks omitted).\\n\\n The plain meaning here is clear. “In” is an ordinary, familiar English word,\\n\\nwith a well understood meaning. Its principal definition in the Oxford English\\n\\nDictionary is “[w]ithin the limits or bounds of, within (any place or thing).” In,\\n\\nOXFORD ENGLISH DICTIONARY (2d ed. 1989); see also Taniguchi v. Kan Pac. Saipan,\\n\\nLtd., 566 U.S. 560, 566–66 (2012) (relying on dictionary definitions to aid in\\n\\ninterpreting statutory text). Someone arriving to meet a friend might call to say\\n\\nthat she was “in the lobby;” she might tell her friend over dinner that she was “in\\n\\nTexas last weekend.” It would be clear to the friend in both cases that the speaker\\n\\nmeant that she was physically present in those locations at the time she indicated\\n\\nshe was “in” them. The plain meaning of the statute reflects that ordinary\\n\\nmeaning: a person, citizen or noncitizen, is “in” the United States when he is\\n\\npresent within its geographic borders. The text is therefore “absent ambiguity”\\n\\nand our analysis presumptively ends there. Dobrova, 607 F.3d at 301.\\n\\n Accepting Balde’s argument would invert the normal plain meaning rule\\n\\nof statutory interpretation by substituting a technical term-of-art meaning for the\\n\\nordinary plain meaning of a straightforward English word. “In” is not a technical\\n\\n\\n 9\\n\\fterm with a special meaning in immigration law. In order to adopt Balde’s\\n\\ninterpretation, we would have to replace the plain meaning of “is . . . in the\\n\\nUnited States” with the different meaning of “has entered the United States,” thus\\n\\nsubstituting a word that is “a specific legal term” within immigration law. See\\n\\nUnited States v. Lopez-Perera, 438 F.3d 932, 935 (9th Cir. 2006).\\n\\n We decline to do so for four reasons. First, that is simply not the language\\n\\nthat Congress chose. The statute deliberately uses the ordinary word “in,” not the\\n\\nmore technical term “entered.”\\n\\n Second, substituting “has entered” for “is in” would change the meaning\\n\\nof the statute, even with respect to one who unquestionably had “entered” the\\n\\nUnited States in the technical immigration sense of the word. The language\\n\\ndefining the crime refers to a noncitizen who “is illegally or unlawfully in the\\n\\nUnited States.” A noncitizen who enters the United States with a visa and\\n\\noverstays the term of that visa is clearly in the United States illegally but, at least\\n\\nif his decision to stay was made after his arrival, it would not be correct to say\\n\\nthat he entered the United States illegally.\\n\\n Third, we are interpreting a section of the criminal code that prohibits gun\\n\\npossession by various categories of person, not an immigration provision.\\n\\n\\n 10\\n\\fCriminal laws are ordinarily written to be understood by the non-specialist\\n\\nindividuals who are subject to the law, law enforcement officers, prosecutors,\\n\\nand jurors, not to be given arcane hidden meanings identifiable only by\\n\\nimmigration lawyers — and even by them only by identifying a “ghost” technical\\n\\nterm supposedly lurking behind the actual, non-technical words used in the\\n\\nstatute. See, e.g., Mitsui & Co. v. Am. Exp. Lines, Inc., 636 F.2d 807, 814 (2d Cir.\\n\\n1981) (“Legislation when not expressed in technical terms is addressed to the\\n\\ncommon run of men and is therefore to be understood according to the sense of\\n\\nthe thing, as the ordinary man has a right to rely on ordinary words addressed to\\n\\nhim.”) (citations omitted); see also Taniguichi, 566 U.S. at 568 (“That a definition is\\n\\nbroad enough to encompass one sense of a word does not establish that the word\\n\\nis ordinarily understood in that sense”).\\n\\n Fourth, Congress clearly knows how to import the technicalities of\\n\\nimmigration law into the federal criminal code when it so chooses. For example,\\n\\nin the subsection immediately following the one at issue here, Congress\\n\\nprohibited possession of firearms by noncitizens who were “admitted to the\\n\\nUnited States under a nonimmigrant visa (as that term is defined in section\\n\\n101(a)(26) of the Immigration and Nationality Act).” 18 U.S.C. § 922(g)(5)(B). The\\n\\n\\n 11\\n\\ffact that Congress did not choose similar technical language in 18 U.S.C.\\n\\n§ 922(g)(5)(A) counsels against interpreting “in” in any manner other than by\\n\\ngiving it its plain meaning.\\n\\n Balde bases his argument almost entirely on United States v. Lopez-Perera, a\\n\\ndecision in which the Ninth Circuit held that § 922(g)(5)(A) inapplicable to a\\n\\ndefendant who had not “entered” the United States within the meaning of\\n\\nimmigration law. 438 F.3d 932 (9th Cir. 2008). But the facts of that decision are\\n\\neasily distinguishable from those before us. In Lopez-Perera, the defendant drove\\n\\nhis van from Mexico into the San Ysidro Port of Entry in California, claiming to\\n\\nbe a United States citizen. Id. at 932–33. At the first checkpoint, an officer directed\\n\\nLopez-Perera to a secondary inspection area, where he “waited approximately\\n\\ntwenty-five minutes . . . and then drove his van toward the north exit of the San\\n\\nYsidro Port of Entry.” Id. at 933. Law enforcement officers stopped him before he\\n\\ncould leave the area and discovered a revolver in the van. Id. Thus, unlike Balde,\\n\\nLopez-Perera had never left the border area (he was stopped between inspection\\n\\nsites within the Port of Entry) and he had been across the geographic border for\\n\\nmere minutes, not (as Balde had) for years.\\n\\n\\n\\n\\n 12\\n\\f Lopez-Perera’s legal reasoning, moreover, is not persuasive. In holding that\\n\\n§ 922(g)(5)(A) requires an “entry,” the Ninth Circuit deferred to a regulation\\n\\npromulgated by the then-Bureau of Alcohol, Tobacco and Firearms (“ATF”). See\\n\\nid. at 934–35. That regulation purports to define “[a]lien[s] illegally or unlawfully\\n\\nin the United States” as noncitizens who “are not in valid immigrant,\\n\\nnonimmigrant or parole status,” including (among other categories) any\\n\\nnoncitizen “[w]ho unlawfully entered the United States without inspection and\\n\\nauthorization by an immigration officer and who has not been paroled into the\\n\\nUnited States under [8 U.S.C. § 1182(d)(5)(A)].” 27 C.F.R. § 478.11 (emphasis\\n\\nadded). The Ninth Circuit concluded that Lopez-Perera was not within this\\n\\ndefinition because he “was never free from official restraint and, therefore, never\\n\\nentered the United States.” Lopez-Perera, 438 F.3d at 935.\\n\\n But even if the ATF regulation were entitled to deference, it does not help\\n\\nBalde. First, the regulation does not purport to define being “in the United\\n\\nStates” as requiring an entry. Rather, it defines the entire phrase “[a]lien illegally\\n\\nor unlawfully in the United States,” thus conflating the two issues Balde wishes\\n\\nto separate. Second, it primarily defines the term as referencing noncitizens “not\\n\\nin valid immigrant, nonimmigrant, or parole status,” thus focusing primarily on\\n\\n\\n 13\\n\\fwhat makes their presence unlawful rather than on what constitutes being “in”\\n\\nthe country, and it does so in a way that encompasses Balde, who has never had\\n\\na valid immigrant or non-immigrant visa and is not, as explained in Part II below,\\n\\nin “parole status.” And third, the language of the regulation referencing\\n\\nnoncitizens who have “entered” the United States is only one example of those\\n\\ncovered by that definition; another category that is covered is “any alien . . .\\n\\n[u]nder an order of deportation, exclusion, or removal, . . . whether or not he or\\n\\nshe has left the United States.”27 C.F.R. § 478.11. That category makes no\\n\\nreference to whether or not the individual ever technically effected an “entry”\\n\\ninto the United States and by its plain language includes Balde, who was under\\n\\nan order of removal when he was found in possession of a firearm. Thus,\\n\\nhowever it might have affected Lopez-Perera, when read properly and fully the\\n\\nregulation offers no support to Balde’s argument.\\n\\n In any event, we are not required to defer to the ATF’s interpretation. Since\\n\\nLopez-Perera was decided, the Supreme Court has clarified that law enforcement\\n\\nagency interpretations of criminal statutes are not entitled to deference: “Whether\\n\\nthe Government interprets a criminal statute too broadly (as it sometimes does)\\n\\nor too narrowly . . . , a court has an obligation to correct its error.” Abramski v.\\n\\n\\n 14\\n\\fUnited States, 573 U.S. 169, 191 (2014); see also United States v. Gayle, 342 F.3d 89, 93\\n\\nn.4 (2d Cir. 2003) (noting this Court had requested additional briefing on the\\n\\nissue of deference and both parties agreed that a definition in 27 C.F.R. § 478.11\\n\\nwas not entitled to deference); United States v. Garcia, 707 F. App'x 231, 234 (5th\\n\\nCir. 2017) (“Following the Supreme Court's instruction that no deference is owed\\n\\nto agency interpretations of criminal statutes, specifically the ATF's interpretation\\n\\nof 18 U.S.C. § 922, we decline to show deference to the ATF regulation\\n\\ninterpreting § 922(g)(5)(A).”).\\n\\n Given these considerations, we decline to adopt the rule that Balde would\\n\\nlike us to derive from Lopez-Perera. We conclude instead that the “in the United\\n\\nStates” element of 18 U.S.C. § 922(g)(5)(A) requires only that a noncitizen be\\n\\nphysically present within the United States. It is uncontested that Balde was\\n\\nphysically present here, and so his conviction will stand unless he is able to show\\n\\nhe was not present illegally or unlawfully.\\n\\nII. “Illegally or Unlawfully” Present\\n\\n Balde next argues that, even assuming that he is considered to have been\\n\\n“in” the United States within the meaning of the statute, he was not present\\n\\n“illegally or unlawfully” because he was effectively paroled into the country\\n\\n\\n 15\\n\\fwhen he was released from detention in 2007. His argument essentially rests on\\n\\nwhat at best amounts to an administrative mistake. Balde did not seek parole as\\n\\nthat status is defined in 8 U.S.C. § 1182(d)(5)(A), nor did the government\\n\\nunderstand itself to be granting him parole at the time it released him from\\n\\ndetention. Balde argues, however, that, because he had not been finally ordered\\n\\nremoved when he was released from detention, the only statutory authority\\n\\nunder which ICE could have released him was the parole authority. Since Balde\\n\\nshould not have been found eligible for the program under which he sought and\\n\\nwas granted supervised release, he reasons, he must have been, sub silentio,\\n\\ngranted parole.\\n\\n It is helpful to contextualize Balde’s argument by reviewing the various\\n\\nstatutory authorities providing for the detention of noncitizens. The\\n\\ngovernment’s authority to detain an individual depends in part on whether that\\n\\nperson is seeking admission to the United States or, once having entered, is\\n\\nremovable for some reason. See, e.g., 8 U.S.C. § 1226(c) (describing certain\\n\\ncategories of noncitizens subject to mandatory detention); 8 U.S.C. § 1225(b)(2)(A)\\n\\n(describing detention during pendency of inadmissibility proceedings). Any\\n\\nstatus that Balde had when he left the United States had been revoked before he\\n\\n\\n 16\\n\\freturned. Thus, when he arrived at the airport, he was treated as seeking\\n\\nadmission. And an alien seeking admission, like Balde, “shall be detained”\\n\\npending a removal proceeding “if the examining immigration officer determines\\n\\nthat [he] is not clearly and beyond a doubt entitled to be admitted.” 8 U.S.C.\\n\\n§ 1225(b)(2)(A).\\n\\n The government may also “parole” any noncitizen “applying for\\n\\nadmission” into the United States “temporarily under such conditions as [it] may\\n\\nprescribe only on a case-by-case basis for urgent humanitarian reasons or\\n\\nsignificant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Parole does not change\\n\\nparolees’ immigration status: they remain “at the border” for the purposes of\\n\\nimmigration law and are treated as applicants for admission into the country.\\n\\nIbragimov v. Gonzales, 476 F.3d 125, 134 (2d Cir. 2007). But parolees’ physical\\n\\npresence within the United States cannot be said to be unlawful or illegal because\\n\\nit is authorized by the Attorney General, and parole has long been understood to\\n\\nconstitute lawful status. See Cruz-Miguel v. Holder, 650 F.3d 189, 198 (2d Cir. 2011)\\n\\n(“In other words, the United States accepts an alien paroled under\\n\\n§ 1182(d)(5)(A) into the country for as long as the humanitarian or public benefit\\n\\npurpose persists.”); see also United States v. Al Sabahi, 719 F.3d 305, 309 (4th Cir.\\n\\n\\n 17\\n\\f2013) (relying on 27 C.F.R. § 478.11 to note that a defendant is “not illegally or\\n\\nunlawfully in the United States if [he or she is] in valid parole status.”); Matter of\\n\\nCastillo-Padilla, 25 I. & N. Dec. 257, 259 (BIA 2010) (“An alien paroled into the\\n\\nUnited States under section 212(d)(5) of the Act is authorized to come into the United\\n\\nStates ‘temporarily’ for urgent humanitarian reasons or significant public benefit\\n\\nand under strict conditions defining his or her status. After the purpose of the\\n\\nparole has been served, the alien returns to custody, and his or her case is dealt\\n\\nwith in the same manner as any other applicant for admission.” (emphasis\\n\\nadded)).\\n\\n Balde does not dispute that, when he presented himself at the airport on\\n\\nhis return from Guinea, he was detained, not paroled, within the meaning of\\n\\nthese provisions. His argument focuses, rather, on what happened thereafter,\\n\\nduring the lengthy process of adjudicating the government’s effort to remove\\n\\nhim.\\n\\n If a noncitizen is administratively determined to be inadmissible, a\\n\\nremoval order is entered and further immigration detention is governed by 8\\n\\nU.S.C. § 1231. The government is required to detain such an individual during\\n\\nthe “removal period,” the 90-day period (extendable under certain\\n\\n\\n 18\\n\\fcircumstances, see 8 U.S.C. § 1231(a)(1)(C)), that begins on either (1) “[t]he date\\n\\nthe order of removal becomes administratively final,” (2) the date of a final order\\n\\nfrom a Court of Appeals “[i]f the removal order is judicially reviewed and if a\\n\\ncourt orders a stay of the removal,” or (3) the date of release from criminal\\n\\ndetention or confinement. See id. § 1231(a)(1)(B), (2). If, at the end of the removal\\n\\nperiod, the individual still has not been removed, he or she may be released\\n\\n“subject to supervision under regulations prescribed by the Attorney General.”\\n\\nId. § 1231(a)(3). But an individual deemed inadmissible by reason of criminal\\n\\nconduct, or one who is deemed a danger to the community or a risk not to\\n\\ncomply with the order of removal, “may be detained beyond the removal period\\n\\nand, if released, shall be subject to the terms of supervision in” 8 U.S.C.\\n\\n§ 1231(a)(3). Id. § 1231(a)(6). Even for individuals detained beyond the removal\\n\\nperiod, however, continued detention is presumptively limited to six months\\n\\nunless their removal is “reasonably foreseeable.” Clark v. Martinez, 543 U.S. 371,\\n\\n378 (2005); see also Zadvydas v. Davis, 533 U.S. 678, 701 (2001).\\n\\n At the time ICE granted Balde’s application for supervised release, he\\n\\nappears to have fallen outside the categories for which such release was\\n\\navailable. He was required to be detained when he presented himself at the\\n\\n\\n 19\\n\\fborder when was not admitted or paroled. And once a stay had been granted by\\n\\nthis Court pending appeal, until the final resolution of the appeal Balde had not\\n\\nentered the “removal period,” let alone reached the expiration of that period, at\\n\\nwhich point he would become eligible for release under the conditions set forth\\n\\nin § 1231(a)(3). See 8 U.S.C. § 1231(a)(6).\\n\\n In the documentation accompanying Balde’s release from detention, ICE\\n\\nstated that it was reviewing his continued detention pursuant to 8 C.F.R. § 241.4.\\n\\nThat regulation states that it addresses the government’s “authority to continue\\n\\nan alien in custody or grant release [under 8 U.S.C. § 1231(a)(6)] or parole under\\n\\n[8 U.S.C. § 1182(d)(5)(A)].” Id. § 241.4. Balde argues that he could not have been\\n\\ngranted release under § 1231(a)(6), even though the documentation suggests that\\n\\nis what ICE contemplated, because his appeal was still pending and thus the\\n\\nremoval period had not begun. He therefore argues that, if ICE released him\\n\\npursuant to 8 C.F.R. § 241.4, the Court should construe that release as parole.\\n\\n Nothing in the record, however, suggests that Balde applied for, or that the\\n\\ngovernment granted, humanitarian parole. Instead, Balde wrote that he was\\n\\nseeking supervised release, and the government released him under the ISAP\\n\\nprogram, which provides for the kind of release he requested. If, as Balde\\n\\n\\n 20\\n\\fcontends, he was in fact ineligible for that program because he was not yet\\n\\nsubject to a final order of removal, that would mean at most that the government\\n\\nmay have been without authority to release Balde from detention when it did.\\n\\nBut that does not convert his release into his being paroled into the country\\n\\nwithin the meaning of 8 U.S.C. § 1182(d)(5)(A), given the absence of any explicit\\n\\ndetermination by the government that such parole was contemplated and any\\n\\nconsideration of whether the “urgent humanitarian reasons or significant public\\n\\nbenefit” required for such discretionary relief existed. Indeed, Balde does not\\n\\ncontend that such reasons existed in his case.\\n\\n Balde also does not contend that any individual under an order of removal\\n\\nwho is properly released under supervision pursuant to § 1231(a)(6) is lawfully\\n\\npresent in the United States for purposes of 18 U.S.C. § 922(g)(5)(A), and any\\n\\nsuch contention would be unpersuasive in any event. A noncitizen who has been\\n\\ndetermined to be inadmissible and ordered removed is not lawfully in the United\\n\\nStates, whether he remains in detention or has been granted conditional liberty\\n\\nunder supervision while awaiting execution of the order of removal. Release on\\n\\nsupervision makes it lawful for such a person to be outside of jail; it does not\\n\\nchange his or her immigration status. Cf. United States v. Bravo-Muzquiz, 412 F.3d\\n\\n\\n 21\\n\\f1052, 1055 (9th Cir. 2005) (noncitizen’s release from custody on an immigration\\n\\nbond does not change his otherwise unlawful status). An alien under an order of\\n\\nremoval who has not been paroled, and who is permitted supervised release in\\n\\nerror when he had not yet become eligible for such release by virtue of expiration\\n\\nof his removal period (such as Balde), can have no greater lawful status than one\\n\\nwho was properly released under § 1231(a)(6).\\n\\n In any event, whatever may have been the case at the moment of Balde’s\\n\\nrelease from detention and admission to the ISAP program, the key inquiry for\\n\\npurposes of § 922(g)(5)(A) is whether a noncitizen “lacks lawful immigration\\n\\nstatus on the date charged in his indictment.” United States v. Lucio, 428 F.3d 519,\\n\\n525 (5th Cir. 2005); see also United States v. Latu, 479 F.3d 1153, 1157 (9th Cir. 2007)\\n\\n(noting that defendant was “found to be in possession of a handgun on May 15,\\n\\n2004,” and therefore “[t]o sustain a conviction under § 922(g)(5)(A), the\\n\\ngovernment must prove that, on that date, Latu was ‘illegally or unlawfully in the\\n\\nUnited States’” (emphasis added)). There is no dispute that, by the time of the\\n\\nconduct for which he was indicted, Balde had a final order of removal lodged\\n\\nagainst him, even if the government was unable to remove him at that point, and\\n\\nhad exceeded the 90-day removal period. Therefore, by that time, his continued\\n\\n\\n 22\\n\\fsupervised release from detention was firmly within the authority provided by 8\\n\\nU.S.C. § 1231(a)(6) and would not constitute parole.\\n\\n Having determined that Balde was not paroled, we have little trouble\\n\\nconcluding that he is within the category of individuals prohibited by\\n\\n§ 922(g)(5)(A) from possessing a firearm. In enacting the statutory scheme,\\n\\nCongress decided that, except for very limited categories of persons, noncitizens\\n\\nwho are not lawful permanent residents should be prohibited from possessing a\\n\\nfirearm in or affecting commerce. See generally 18 U.S.C. § 922(g)(5). Its choice of\\n\\nlanguage, which prohibits firearm possession both by most holders of\\n\\nnon-immigrant visas and by all those unlawfully present, covers large numbers\\n\\neven of those who have temporary authorization to enter the country, id. at\\n\\n§ 922(g)(5)(B), as well as those who have no such authorization, id. at\\n\\n§ 922(g)(5)(A). The facts of Balde’s case make clear that he is in the latter\\n\\ncategory: he has been finally adjudicated to be unlawfully present. Permission to\\n\\nreside at liberty under supervised conditions rather than in immigration\\n\\ndetention does not equate to a conferral of lawful status in the country, and\\n\\ntherefore does not confer permission to possess firearms. Our sister circuits have\\n\\nupheld convictions under § 922(g)(5)(A) of individuals who had an application\\n\\n\\n 23\\n\\ffor relief pending or who were in removal proceedings that were still in process\\n\\nand had not yet resulted in entry of a final removal order. See, e.g., Latu, 479 F.3d\\n\\nat 1158–59 (affirming conviction of defendant who had pending application for\\n\\nadjustment of status); United States v. Atandi, 376 F.3d 1186, 1190 (10th Cir. 2004)\\n\\n(finding defendant was illegally or unlawfully present when he failed to satisfy\\n\\nconditions of student visa, concluding “[t]he fact that he had not yet been\\n\\nordered removed is not relevant to the question of whether or not his presence in\\n\\nthe United States was then authorized”). We see no principled reason why such\\n\\nindividuals should be considered to be unlawfully present, even before entry of a\\n\\nfinal removal order, while Balde, whose removability had been fully litigated\\n\\nbefore the agency and this Court resulting in a final determination that he had no\\n\\nlegal right to be in the United States, should not be.\\n\\n Accordingly, in light of Balde’s immigration status at the time of the\\n\\nconduct underlying his arrest, we conclude that he was properly prosecuted\\n\\nunder Section 922(g)(5)(A).\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n 24\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2394,"cells":{"id":{"kind":"number","value":4629080,"string":"4,629,080"},"name":{"kind":"string","value":"Eric HU, NY Drilling, Inc., and 888 Consulting Corp., Plaintiffs-Appellants, v. the CITY OF NEW YORK, Dennis Burkart, Jose L. Espaillat, Michael Camera, Rafael Collis, Salvatore Concialdi, Robert Turner, Cesar Romero, Rick D. Chandler, Muhammad Imran, D. Eric Hoyt, Defendants-Appellees, John/Jane Does, Nos. 1-10, Defendants."},"name_abbreviation":{"kind":"string","value":"Hu v. City of New York"},"decision_date":{"kind":"string","value":"2019-06-13"},"docket_number":{"kind":"string","value":"Docket 18-737-cv; August Term 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Jacobs, Lynch, Hall\", \"parties\": \"\", \"opinions\": [{\"author\": \"J. HALL, District Judge:\", \"type\": \"010combined\", \"text\": \"18‐737‐cv\\n Hu v. City of New York\\n\\n\\n 1 UNITED STATES COURT OF APPEALS\\n 2 FOR THE SECOND CIRCUIT\\n 3 _____________________\\n 4\\n 5 August Term 2018\\n 6\\n 7 (Argued: March 6, 2019 Decided: June 13, 2019)\\n 8\\n 9 Docket No. 18‐737‐cv\\n10 _____________________\\n11\\n12 ERIC HU, NY DRILLING, INC., AND 888 CONSULTING CORP.,\\n13 Plaintiffs‐Appellants,\\n14\\n15 v.\\n16\\n17 THE CITY OF NEW YORK, DENNIS BURKART, JOSE L. ESPAILLAT, MICHAEL CAMERA,\\n18 RAFAEL COLLIS, SALVATORE CONCIALDI, ROBERT TURNER, CESAR ROMERO, RICK D.\\n19 CHANDLER, MUHAMMAD IMRAN, D. ERIC HOYT,\\n20 Defendants‐Appellees,\\n21\\n22 JOHN/JANE DOES, NOS. 1‐10,\\n23 Defendants.*\\n24 _____________________\\n25\\n\\n26 Before:\\n\\n27 JACOBS and LYNCH, Circuit Judges, and J. HALL, District Judge.**\\n\\n28 The Plaintiffs‐Appellants, an Asian construction worker and Asian‐owned\\n29 companies, brought suit against the City of New York and several of its\\n\\n\\n * The Clerk of Court is directed to amend the caption as shown above.\\n\\n **Judge Janet C. Hall, United States District Court for the District of Connecticut, sitting by\\n designation.\\n\\f 1 employees, alleging that the defendants discriminatorily enforced municipal\\n 2 building codes against the plaintiffs on the basis of race and personal animus. The\\n 3 plaintiffs asserted Equal Protection claims under the theories articulated in Village\\n 4 of Willowbrook v. Olech, 528 U.S. 562 (2000) and LeClair v. Saunders, 627 F.2d 606 (2d\\n 5 Cir. 1980). They also raised claims under the Due Process Clause, section 1981 of\\n 6 title 42 of the United States Code, the Monell doctrine, and New York tax law. The\\n 7 United States District Court for the Eastern District of New York (Allyne Ross,\\n 8 Judge) dismissed the suit under Federal Rule of Civil Procedure 12(b)(6). We\\n 9 AFFIRM the District Court’s dismissal of the plaintiffs’ Olech claim, Due Process\\n10 claim, and Monell claim. However, we VACATE the judgment as to the plaintiffs’\\n11 section 1981 claim and LeClair claims, as well as their state law claim.\\n12 _____________________\\n13\\n14 DANIEL J. SCHNEIDER, Farber Schneider Ferrari LLP, New York, NY,\\n15 for Plaintiffs‐Appellants.\\n16\\n17 ANTONELLA KARLIN, Assistant Corporation Counsel (Richard\\n18 Dearing and\\n19 Kathy Chang Park, on the brief), for Zachary W. Carter, Corporation\\n20 Counsel of the City of New York, New York, NY, for Defendants‐\\n21 Appellees.\\n22 _____________________\\n23\\n24 J. HALL, District Judge:\\n\\n25 Plaintiffs Eric Hu (“Hu”), 888 Consulting Corporation (“888 Consulting”),\\n\\n26 and NY Drilling (“NY Drilling”) are an Asian construction worker and Asian‐\\n\\n27 owned companies.1 They brought this lawsuit against the City of New York\\n\\n\\n\\n\\n 1This appeal was heard in tandem with Hsin v. City of New York, Case No. 18‐751‐cv, a related but\\n not consolidated action. We resolve Hsin in a separate Summary Order.\\n 2\\n\\f 1 (“the City”), Assistant Chief Inspector Dennis Burkart (“Burkart”), and several of\\n\\n 2 Burkart’s colleagues at the Department of Buildings (“DOB”), alleging that the\\n\\n 3 defendants selectively enforced the City’s building codes on the basis of racial\\n\\n 4 animus against Asians and personal animus against Hu. The plaintiffs raised\\n\\n 5 claims under the Equal Protection Clause, the Due Process Clause, section 1981\\n\\n 6 of title 42 of the United States Code, the Monell doctrine, and New York tax law.\\n\\n 7 The United States District Court for the Eastern District of New York\\n\\n 8 (Ross, J.) dismissed the plaintiffs’ federal causes of action under Federal Rule of\\n\\n 9 Civil Procedure 12(b)(6) and declined to exercise supplemental jurisdiction over\\n\\n10 the remaining state claim. The plaintiffs now appeal, arguing that the District\\n\\n11 Court improperly applied a heightened pleading standard to their Amended\\n\\n12 Complaint. For the reasons that follow, we AFFIRM in part and VACATE in part\\n\\n13 the judgment below.\\n\\n14 I. BACKGROUND\\n\\n15 The Amended Complaint alleges the following facts, which we take as true\\n\\n16 for the purposes of evaluating a motion to dismiss.\\n\\n17 This action centers primarily on Burkart’s “personal vendetta” against\\n\\n18 Asians in general and Hu in particular. Burkart’s racial animus stems from his\\n\\n19 belief that Asians were responsible for the downfall of a construction company\\n 3\\n\\f 1 that he owned prior to his employment at DOB. In particular, Burkart blames\\n\\n 2 Asians for undercutting his rates to the point where he could no longer compete.\\n\\n 3 Burkart’s alleged animus against Hu, a Taiwanese‐American construction\\n\\n 4 worker, has several sources. In 2011, Hu filed a complaint with DOB alleging\\n\\n 5 that Burkart’s enforcement of the building code was racially discriminatory.\\n\\n 6 Later that year, Hu sued one of Burkart’s colleagues at DOB for hitting Hu with a\\n\\n 7 car. Although Burkart was only a passenger in the vehicle and was not named as\\n\\n 8 a defendant in the lawsuit, the plaintiffs believe that DOB may have disciplined\\n\\n 9 Burkart for his involvement in the car accident. In 2014, Hu filed an FBI report\\n\\n10 alleging extortion by another of Burkart’s colleagues, Massimo Dabusco\\n\\n11 (“Dabusco”). As a result of the ensuing FBI investigation, Dabusco left DOB,\\n\\n12 pled guilty to criminal charges, and was sentenced to 18 months’ imprisonment.\\n\\n13 See Judgment (Doc. No. 47), United States v. Massimo Dabusco, EDNY Docket No.\\n\\n14 16‐CR‐559‐DLI.\\n\\n15 Burkart has not been shy in voicing his feelings about Asians and Hu.\\n\\n16 While inspecting construction worksites, Burkhart has been observed harassing,\\n\\n17 belittling, and threatening Asian workers. He has been overheard calling Hu “a\\n\\n18 rat” for reporting Dabusco to the FBI, as well as bragging about his plans to\\n\\n\\n\\n 4\\n\\f 1 “shut down every one of Hu’s jobsites around the city.” Hu Appellants’\\n\\n 2 Appendix (“Hu Appx.”) (Doc. No. 40), Case No. 18‐737‐cv, at A24 ¶ 75, A27 ¶ 96.\\n\\n 3 According to other DOB inspectors, Burkart even has a picture of Hu on his wall.\\n\\n 4 It is an open secret within the City’s construction community that a jobsite that\\n\\n 5 involves Hu will be shut down by DOB inspectors.\\n\\n 6 NY Drilling and 888 Consulting have also become targets of Burkart’s\\n\\n 7 animosity, due both to their racial composition and to their close ties to Hu. NY\\n\\n 8 Drilling is a construction company that employed Hu until 2015, when Hu\\n\\n 9 formed his own construction company, 888 Consulting. Both NY Drilling and\\n\\n10 888 Consulting are owned and controlled by Asians, and they frequently work\\n\\n11 with each other on construction jobs.\\n\\n12 Burkart has acted on his prejudices by targeting the plaintiffs’ worksites\\n\\n13 for inspections and unwarranted building code violations. Although DOB\\n\\n14 inspectors are assigned predetermined routes, Burkart regularly deviates from\\n\\n15 his routes to visit, inspect, and issue violations to construction sites that are\\n\\n16 managed and operated by Asian workers and Asian‐owned companies. He\\n\\n17 often does so on his own time and while off duty. Further, he conducts these site\\n\\n18 visits on his own initiative and not in response to public complaints, even though\\n\\n\\n\\n 5\\n\\f 1 DOB is a complaint‐driven agency that takes enforcement actions primarily in\\n\\n 2 response to grievances received from the general public. During these visits,\\n\\n 3 Burkart issues violations and stop work orders, often for aspects of construction\\n\\n 4 that fall outside the purview of his division within DOB, the Concrete\\n\\n 5 Enforcement Unit. Burkart also appears to issue violations to Asian‐run\\n\\n 6 construction sites at a higher rate than his colleagues. According to the plaintiffs’\\n\\n 7 review of building code violations, Burkart issues 63 percent of his violations to\\n\\n 8 Asian‐run construction companies, workers, or sites, as compared to between 8\\n\\n 9 and 28 percent for other DOB inspectors.\\n\\n10 While Burkart is the only defendant alleged to harbor animus against Hu\\n\\n11 or Asians, Burkart has enlisted the help of other DOB officers in harassing the\\n\\n12 plaintiffs. Burkart or members of his team actively search DOB databases to\\n\\n13 identify construction worksites that employ Hu. When Burkart becomes aware\\n\\n14 of a job involving Hu, 888 Consulting, or NY Drilling, Burkart makes sure that he\\n\\n15 or a member of his team visits that jobsite. Burkart also sends other DOB\\n\\n16 inspectors outside of their assigned routes to issue violations to Asian developers\\n\\n17 and contractors. Sometimes, Burkart visits a construction site, takes pictures, and\\n\\n18 then leaves without taking any enforcement action. Shortly thereafter, however,\\n\\n\\n\\n 6\\n\\f 1 another DOB inspector will return to that site and issue a violation for the\\n\\n 2 conditions observed by Burkart. The plaintiffs believe that Burkart directs other\\n\\n 3 DOB inspectors to issue violations in order to “avoid the optic of having an\\n\\n 4 enormous number of violations and SWO[s] [stop work orders] signed in\\n\\n 5 Burkart’s name which are for alleged violations beyond the scope of his own\\n\\n 6 duties [and] outside his route and region[.]” Hu Appx. at A34 ¶ 166.\\n\\n 7 The Amended Complaint details four enforcement actions. Although the\\n\\n 8 specifics vary, they generally involve Burkart, by himself or in coordination with\\n\\n 9 other DOB officers, sanctioning the plaintiffs based on fabricated or frivolous\\n\\n10 building code violations; orchestrating time‐consuming audits of the plaintiffs’\\n\\n11 jobsites; forcing the plaintiffs to install unnecessary onsite protections, such as\\n\\n12 additional fencing; or halting the plaintiffs’ projects with stop work orders.\\n\\n13 These and other enforcement actions are taking a financial toll on the\\n\\n14 plaintiffs. Burkart’s violations have burdened the plaintiffs with fines,\\n\\n15 compliance costs, and legal fees. Clients are firing the plaintiffs due to jobsite\\n\\n16 delays resulting from DOB audits and stop work orders, and some are suing the\\n\\n17 plaintiffs for breaches of contract. The plaintiffs are also losing prospective\\n\\n\\n\\n\\n 7\\n\\f 1 business, because of Hu’s reputation as a lightning rod for DOB inspections and\\n\\n 2 sanctions.\\n\\n 3 II. PROCEDURAL HISTORY\\n\\n 4 The plaintiffs brought this lawsuit in April 2017. See generally Complaint\\n\\n 5 (Doc. No. 1), EDNY Docket No. 17‐cv‐2348. At a pre‐motion conference, the\\n\\n 6 District Court permitted the plaintiffs to amend their pleadings to address\\n\\n 7 deficiencies the Court had identified. See generally Transcript for Telephonic\\n\\n 8 Conference (“Pre‐Motion Conf. Tr.”) (Doc. No. 43‐8), EDNY Docket No. 17‐cv‐\\n\\n 9 2348. The plaintiffs filed an Amended Complaint, and the defendants moved to\\n\\n10 dismiss shortly thereafter. In March 2018, the District Court granted the Motion\\n\\n11 to Dismiss with prejudice, and this appeal followed.\\n\\n12 III. STANDARD OF REVIEW\\n\\n13 We review de novo a district court’s dismissal of a complaint under Rule\\n\\n14 12(b)(6). Carpenters Pension Tr. Fund of St. Louis v. Barclays PLC, 750 F.3d 227, 232\\n\\n15 (2d Cir. 2014). For the purposes of such a review, “this Court must accept as true\\n\\n16 all allegations in the complaint and draw all reasonable inferences in favor of the\\n\\n17 non‐moving party.” Matson v. Bd. of Educ. of City Sch. Dist. of New York, 631 F.3d\\n\\n18 57, 63 (2d Cir. 2011) (internal quotation marks omitted). Nevertheless, the\\n\\n19 plaintiff’s complaint must “contain sufficient factual matter, accepted as true, to\\n\\n 8\\n\\f 1 state a claim to relief that is plausible on its face.” Id. “A claim is facially\\n\\n 2 plausible when the plaintiff pleads factual content that allows the court to draw\\n\\n 3 the reasonable inference that the defendant is liable for the misconduct alleged.”\\n\\n 4 Progressive Credit Union v. City of New York, 889 F.3d 40, 48 (2d Cir. 2018) (internal\\n\\n 5 quotation marks omitted). In deciding a Rule 12(b)(6) motion, the court may\\n\\n 6 consider “only the facts alleged in the pleadings, documents attached as exhibits\\n\\n 7 or incorporated by reference in the pleadings[,] and matters of which judicial\\n\\n 8 notice may be taken.” Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir.\\n\\n 9 1993).\\n\\n10 IV. DISCUSSION\\n\\n11 In the Amended Complaint, the plaintiffs assert (1) Equal Protection claims\\n\\n12 for discriminatory enforcement of the building code; (2) a section 1981 claim for\\n\\n13 interfering on the basis of race with the right to make and enforce contracts; (3)\\n\\n14 Due Process claims for depriving them of their chosen occupation and for\\n\\n15 engaging in a systematic campaign of government harassment; (4) a Monell claim\\n\\n16 against the City; and (5) a state law taxpayer claim for violation of section 51 of\\n\\n17 the New York General Municipal Law.\\n\\n18 The District Court dismissed the federal claims with prejudice and\\n\\n19 declined to exercise supplemental jurisdiction over the remaining state claim. As\\n 9\\n\\f 1 to the Equal Protection and section 1981 claims, the District Court concluded that\\n\\n 2 the plaintiffs had not plausibly alleged that they had been treated differently\\n\\n 3 from another similarly situated comparator. It dismissed the plaintiffs’ Due\\n\\n 4 Process claims on the grounds that the Amended Complaint did not plausibly\\n\\n 5 allege either (1) that the defendants’ actions had entirely precluded the plaintiffs\\n\\n 6 from working in the construction industry, or (2) that the defendants’ actions\\n\\n 7 rose to the level of intentional and systematic government harassment. Finally,\\n\\n 8 the District Court dismissed the plaintiffs’ Monell claim for, inter alia, failure to\\n\\n 9 plausibly allege that the plaintiffs’ constitutional injuries were caused by an\\n\\n10 official municipal policy.\\n\\n11 On appeal, the plaintiffs argue that District Court improperly applied a\\n\\n12 heightened pleading standard to their federal claims. They further argue that,\\n\\n13 even if dismissal of these claims was warranted, the District Court erred by\\n\\n14 dismissing the Amended Complaint with prejudice. We address these\\n\\n15 arguments below. Before doing so, however, we first respond to the defendants’\\n\\n16 contention that two of the plaintiffs – Hu and 888 Consulting – lack standing\\n\\n17 because they have not plausibly pled an injury‐in‐fact, an issue that was not\\n\\n18 addressed by the court below.\\n\\n\\n\\n 10\\n\\f 1 A. Standing\\n\\n 2 Because “[a]ppellate courts have an independent obligation to examine\\n\\n 3 their own jurisdiction,” In re TPG Troy, LLC, 793 F.3d 228, 232 (2d Cir. 2015)\\n\\n 4 (internal quotation marks omitted), we must always address questions of\\n\\n 5 standing, even when neither the parties nor the court below have considered the\\n\\n 6 issue, see FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230–31 (1990). To satisfy the\\n\\n 7 requirements of Article III standing, plaintiffs must demonstrate “(1) [an] injury‐\\n\\n 8 in‐fact, which is a concrete and particularized harm to a legally protected\\n\\n 9 interest; (2) causation in the form of a fairly traceable connection between the\\n\\n10 asserted injury‐in‐fact and the alleged actions of the defendant; and\\n\\n11 (3) redressability, or a non‐speculative likelihood that the injury can be remedied\\n\\n12 by the requested relief.” Selevan v. New York Thruway Auth., 711 F.3d 253, 257 (2d\\n\\n13 Cir. 2013) (internal quotation marks omitted). These elements “are not mere\\n\\n14 pleading requirements but rather an indispensable part of the plaintiff’s case[.]”\\n\\n15 Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). As a result, “each element must\\n\\n16 be supported in the same way as any other matter on which the plaintiff bears\\n\\n17 the burden of proof, i.e., with the manner and degree of evidence required at the\\n\\n18 successive stages of the litigation.” Id. Thus, “general factual allegations of\\n\\n19 injury resulting from the defendant’s conduct may suffice” at the pleading stage,\\n 11\\n\\f 1 because it is presumed on a motion to dismiss that “general allegations embrace\\n\\n 2 those specific facts that are necessary to support the claim.” Id. (internal\\n\\n 3 quotation marks and alterations omitted); see also John v. Whole Foods Mkt. Grp.,\\n\\n 4 Inc., 858 F.3d 732, 736–37 (2d Cir. 2017) (applying Lujan’s standard).\\n\\n 5 Notwithstanding the defendants’ claims to the contrary, the Amended\\n\\n 6 Complaint plausibly alleges injuries to Hu and 888 Consulting that are fairly\\n\\n 7 traceable to the defendants’ alleged actions. The plaintiffs’ allegations detail how\\n\\n 8 Burkart and his colleagues have increased the plaintiffs’ costs of doing business\\n\\n 9 by conducting audits, forcing the plaintiffs to pay fines for unwarranted\\n\\n10 violations, and halting work on the plaintiffs’ jobsites with stop work orders. As\\n\\n11 a result of this targeting, the plaintiffs have not only lost current clients and\\n\\n12 future business, but they have also incurred legal fees challenging notices of\\n\\n13 violation and defending against breach‐of‐contract suits from dissatisfied clients.\\n\\n14 The Amended Complaint supplements these general allegations of harm with\\n\\n15 specific instances where the defendants’ enforcement activities financially\\n\\n16 burdened the plaintiffs. To take one example, Burkart allegedly “forced\\n\\n17 Plaintiffs, at significant cost, to install protection on neighbors’ walls” at one of\\n\\n18 their construction sites, which enforcement actions ultimately resulted in the\\n\\n\\n\\n 12\\n\\f 1 plaintiffs being fired from the job. Hu Appx. at A38 ¶¶ 193–196.2 Taken\\n\\n 2 together, these allegations are more than sufficient to establish Hu and 888\\n\\n 3 Consulting’s standing at the pleading stage. We therefore turn to the merits of\\n\\n 4 the plaintiffs’ claims.\\n\\n 5 B. Equal Protection Claims\\n\\n 6 The Amended Complaint can be reasonably construed as alleging three\\n\\n 7 types of Equal Protection claims for discrimination based on the selective\\n\\n 8 enforcement of the City’s building codes. The first two – which proceed under\\n\\n 9 the theory of LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980) – allege that the\\n\\n10 defendants treated the plaintiffs differently from others similarly situated on the\\n\\n11 basis of racial animus against Asians and personal animus against Hu. The third\\n\\n12 claim adopts the theory of Village of Willowbrook v. Olech, 528 U.S. 562 (2000),\\n\\n13 alleging that the defendants’ differential treatment of the plaintiffs violated the\\n\\n14 Equal Protection Clause because it was irrational and wholly arbitrary.\\n\\n\\n\\n\\n 2 The Amended Complaint does not expressly allocate harms between the three plaintiffs,\\n alleging instead that the various injuries accrued to the “plaintiffs.” See, e.g., Hu Appx. at A44. It does,\\n however, explicitly define the “plaintiffs” to include Hu, 888 Consulting, and NY Drilling. Id. at A12.\\n Thus, a natural reading of the Amended Complaint is that the alleged injuries are shared by all three\\n plaintiffs, an inference that is buttressed by the fact that the plaintiffs have a close working relationship\\n with one another.\\n 13\\n\\f 1 The District Court dismissed these claims on the grounds that the\\n\\n 2 Amended Complaint failed to plausibly allege a comparator that was similarly\\n\\n 3 situated to the plaintiffs. In reaching this outcome, it correctly noted that there is\\n\\n 4 disagreement among district courts in this Circuit as to the degree of similarity\\n\\n 5 required in a LeClair claim. See Leon v. Rockland Psychiatric Ctr., 232 F. Supp. 3d\\n\\n 6 420, 432 (S.D.N.Y. 2017) (documenting this split). Some district courts have\\n\\n 7 applied the similarity standard for an Olech cause of action to LeClair claims,\\n\\n 8 requiring that plaintiffs show an “extremely high” level of similarity between\\n\\n 9 themselves and the persons to whom they compare themselves. See, e.g.,\\n\\n10 Kamholtz v. Yates Cty., No. 08‐CV‐6210, 2008 WL 5114964, at *5 (W.D.N.Y. Dec. 3,\\n\\n11 2008), affʹd, 350 F. Appʹx 589 (2d Cir. 2009); Spanierman v. Hughes, 576 F. Supp. 2d\\n\\n12 292, 307 (D. Conn. 2008); Dones v. City of New York, No. 07 CIV. 3085 (SAS), 2008\\n\\n13 WL 2742108, at *9 (S.D.N.Y. July 9, 2008). Others have applied a less stringent\\n\\n14 standard to LeClair claims, requiring only that plaintiffs show that they are\\n\\n15 “roughly equivalent” to the proffered comparators. See, e.g., Mosdos Chofetz\\n\\n16 Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 696–97 (S.D.N.Y. 2011); T.S.\\n\\n17 Haulers, Inc. v. Town of Riverhead, 190 F. Supp. 2d 455, 462–63 (E.D.N.Y. 2002). In\\n\\n18 this case, the District Court adopted the latter approach. It concluded, however,\\n\\n\\n\\n 14\\n\\f 1 that the Amended Complaint failed to allege a comparator that was even\\n\\n 2 roughly equivalent to the plaintiffs.\\n\\n 3 On appeal, neither party disputes that the plaintiffs’ LeClair claims should\\n\\n 4 be subjected to a less stringent similarity standard than their Olech claim. This\\n\\n 5 apparent agreement, however, does not control our judgment, as we are not\\n\\n 6 bound by stipulations of law. See Neilson v. DʹAngelis, 409 F.3d 100, 104 n.2 (2d\\n\\n 7 Cir. 2005), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir.\\n\\n 8 2008). Because we conclude that the viability of the plaintiffs’ Equal Protection\\n\\n 9 claims turns on the precise degree of similarity required by LeClair, we write to\\n\\n10 resolve this open question and, more generally, to clarify the relationship\\n\\n11 between LeClair and Olech. For the reasons that follow, we agree with the court\\n\\n12 below that a lower similarity standard applies to the plaintiffs’ LeClair claims.\\n\\n13 Unlike the District Court, however, we conclude that the Amended Complaint\\n\\n14 satisfies this less stringent standard, albeit just barely, by alleging facts that\\n\\n15 plausibly show a reasonably close resemblance between the plaintiffs and a\\n\\n16 comparator who received more favorable treatment from the defendants. We\\n\\n17 therefore affirm the District Court’s dismissal of the plaintiffs’ Olech claim but\\n\\n18 vacate as to the LeClair claims.\\n\\n\\n\\n 15\\n\\f 1 i. Legal Framework\\n\\n 2 We first articulated a theory of Equal Protection based on the selective\\n\\n 3 enforcement of the law in LeClair v. Saunders, a case decided nearly four decades\\n\\n 4 ago. 627 F.2d 606, 609–10 (2d Cir. 1980). To prevail on such a claim, a plaintiff\\n\\n 5 must prove that “(1) the person, compared with others similarly situated, was\\n\\n 6 selectively treated, and (2) the selective treatment was motivated by an intention\\n\\n 7 to discriminate on the basis of impermissible considerations, such as race or\\n\\n 8 religion, to punish or inhibit the exercise of constitutional rights, or by a\\n\\n 9 malicious or bad faith intent to injure the person.” Zahra v. Town of Southold, 48\\n\\n10 F.3d 674, 683 (2d Cir. 1995) (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d\\n\\n11 Cir. 1992)). As this test makes clear, “[t]he LeClair type of equal protection claim\\n\\n12 requires proof of disparate treatment and impermissible motivation.” Bizzarro v.\\n\\n13 Miranda, 394 F.3d 82, 87 (2d Cir. 2005). A plaintiff cannot merely rest on “a\\n\\n14 demonstration of different treatment from persons similarly situated[.]” Id.\\n\\n15 (quoting Crowley v. Courville, 76 F.3d 47, 53 (2d Cir. 1996)) (internal quotation\\n\\n16 marks and alterations omitted). Instead, he must “prove that the disparate\\n\\n17 treatment was caused by the impermissible motivation.” Id.. As evident from\\n\\n18 LeClair’s broad definition of “impermissible considerations,” LeClair protects\\n\\n19 against both discrimination on the basis of a plaintiff’s protected status (e.g., race\\n 16\\n\\f 1 or a constitutionally‐protected activity) and discrimination on the basis of a\\n\\n 2 defendant’s personal malice or ill will towards a plaintiff. However, we have\\n\\n 3 cautioned that the latter type of LeClair claim, unlike the former, is “lodged in a\\n\\n 4 murky corner of equal protection law in which there are surprisingly few cases\\n\\n 5 and no clearly delineated rules to apply.” Id. at 86 (quoting LeClair, 627 F.2d at\\n\\n 6 608).\\n\\n 7 In Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), the\\n\\n 8 Supreme Court ventured into that murky corner and articulated what has\\n\\n 9 become known as the “class of one” theory of Equal Protection. The plaintiff in\\n\\n10 that case sought to connect her property to a municipal water supply. Id. at 563.\\n\\n11 When the Village of Willowbrook conditioned its approval on the plaintiff\\n\\n12 granting it a 33‐foot easement, the plaintiff brought suit on the grounds that the\\n\\n13 Village only required a 15‐foot easement from other property owners seeking\\n\\n14 similar water access. Id. Although the plaintiff did “not allege membership in a\\n\\n15 class or group,” the Supreme Court held that she could nonetheless state an\\n\\n16 Equal Protection claim by alleging “[1] that she has been intentionally treated\\n\\n17 differently from others similarly situated and [2] that there is no rational basis for\\n\\n18 the difference in treatment.” Id. at 564. As the Olech Court explained, this cause\\n\\n\\n\\n 17\\n\\f 1 of action arises out of the Equal Protection Clause’s “purpose . . . to secure every\\n\\n 2 person within the State’s jurisdiction against intentional and arbitrary\\n\\n 3 discrimination.” Id. The Court did not reach the alternative theory that the\\n\\n 4 Village harbored subjective ill will towards the plaintiff. Further, Olech declined\\n\\n 5 to specify the degree of similarity required between a plaintiff and her\\n\\n 6 comparator.\\n\\n 7 In Neilson v. DʹAngelis, 409 F.3d 100 (2d Cir. 2005), we addressed that\\n\\n 8 omission and set forth the Second Circuit’s similarity standard for an Olech cause\\n\\n 9 of action.3 See, e.g., Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d\\n\\n10 Cir. 2010) (relying on Neilson’s articulation of the elements of an Olech claim);\\n\\n11 Progressive Credit Union v. City of New York, 889 F.3d 40, 49 (2d Cir. 2018) (same).\\n\\n12 We held that, “[i]n order to succeed on a ‘class of one’ claim, the level of\\n\\n13 similarity between plaintiffs and the persons with whom they compare\\n\\n14 themselves must be extremely high.” Neilson, 409 F.3d at 104. More precisely, a\\n\\n15 plaintiff must establish that he and a comparator are “prima facie identical” by\\n\\n16 showing that “(i) no rational person could regard the circumstances of the\\n\\n\\n\\n 3 Although we later overruled Neilson insofar as it allowed public employees to assert Olech\\n claims against their government employers, see Appel v. Spiridon, 531 F.3d 138, 139 (2d Cir. 2008), we left\\n intact Neilson’s articulation of the elements of an Olech claim, see Analytical Diagnostic Labs, Inc. v. Kusel,\\n 626 F.3d 135, 140 n.1 (2d Cir. 2010).\\n 18\\n\\f 1 plaintiff to differ from those of a comparator to a degree that would justify the\\n\\n 2 differential treatment on the basis of a legitimate government policy; and (ii) the\\n\\n 3 similarity in circumstances and difference in treatment are sufficient to exclude\\n\\n 4 the possibility that the defendant acted on the basis of a mistake.” Id. at 105. We\\n\\n 5 explained that the existence of highly similar circumstances provides the basis\\n\\n 6 for “infer[ring] that the plaintiff was intentionally singled out for reasons that so\\n\\n 7 lack any reasonable nexus with a legitimate governmental policy that an\\n\\n 8 improper purpose – whether personal or otherwise – is all but certain.” Id.\\n\\n 9 While we have made efforts to clarify the contours of an Olech claim, we\\n\\n10 have paid less attention to the interaction between Olech and LeClair. The precise\\n\\n11 relationship between these doctrines, however, has become a source of some\\n\\n12 confusion in the Circuit. See 33 Seminary LLC v. City of Binghamton, 670 F. Appʹx\\n\\n13 727, 730 (2d Cir. 2016) (noting this confusion); Gray v. Maquat, 669 F. Appʹx 4, 5\\n\\n14 n.1 (2d Cir. 2016) (same). On the one hand, we have suggested that Olech and\\n\\n15 LeClair offer two distinct Equal Protection theories of non‐class‐based\\n\\n16 discrimination, with Olech claims focused on whether the defendant’s conduct\\n\\n17 was rationally related to a legitimate government policy and LeClair claims\\n\\n18 focused on whether the defendant’s conduct was motivated by malice towards\\n\\n\\n\\n 19\\n\\f 1 the plaintiff. See Bizzarro, 394 F.3d at 86 (presenting Olech and LeClair as “two\\n\\n 2 slightly different theories” of Equal Protection); Cobb v. Pozzi, 363 F.3d 89, 109 (2d\\n\\n 3 Cir. 2004) (calling them “two related, yet different, equal protection arguments”).\\n\\n 4 Periodically, however, we have raised the possibility that an Olech claim requires\\n\\n 5 proof of a defendant’s ill will towards the plaintiff, suggesting that Olech may\\n\\n 6 have displaced or merged with LeClair’s Equal Protection theory of malice‐based\\n\\n 7 discrimination. See Bizzarro, 394 F.3d at 88 (“We have not resolved whether, in\\n\\n 8 light of Olech, the theory espoused by LeClair remains the proper one in ‘class of\\n\\n 9 one’ claims.”); Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499–500 (2d Cir.\\n\\n10 2001) (declining to reach the question of whether the “Supreme Courtʹs decision\\n\\n11 in Olech modified the second part of the LeClair analysis by removing the\\n\\n12 requirement that malice or bad faith be shown in order to state a valid ‘class of\\n\\n13 one’ equal protection claim”); Giordano v. City of New York, 274 F.3d 740, 751 (2d\\n\\n14 Cir. 2001) (same). As noted above, Olech has also sparked questions about the\\n\\n15 degree of similarity required in a LeClair claim. See supra at 14. While some\\n\\n16 district courts have applied Neilson’s similarity standard for Olech claims to\\n\\n17 LeClair claims, others have concluded that a lower similarity standard should\\n\\n18 apply. See Mosdos Chofetz Chaim, 815 F. Supp. 2d at 693–97 (collecting cases).\\n\\n\\n\\n 20\\n\\f 1 Today, we seek to resolve some of this uncertainty and clarify the\\n\\n 2 relationship between LeClair and Olech. For the reasons that follow, we hold that\\n\\n 3 these two decisions offer distinct pathways for proving a non‐class‐based Equal\\n\\n 4 Protection violation. While both types of Equal Protection claims require a\\n\\n 5 showing that the plaintiff was treated differently from another similarly situated\\n\\n 6 comparator, they differ in at least two key respects. First, unlike a malice‐based\\n\\n 7 LeClair claim, an Olech claim does not require proof of a defendant’s subjective ill\\n\\n 8 will towards a plaintiff. Instead, a plaintiff can prevail on an Olech claim on the\\n\\n 9 basis of similarity alone. However, the similarity standard for an Olech claim is\\n\\n10 more stringent than the standard for a LeClair claim. While Olech requires an\\n\\n11 “extremely high” degree of similarity between a plaintiff and comparator, LeClair\\n\\n12 merely requires a “reasonably close resemblance” between a plaintiff’s and\\n\\n13 comparator’s circumstances.\\n\\n14 These holdings stem from both the Supreme Court’s decision in Olech and\\n\\n15 our own subsequent precedent. To begin, we read Olech as rejecting the\\n\\n16 contention that malice is a requirement of a class of one Equal Protection claim.\\n\\n17 The majority opinion recognized that the plaintiff’s complaint contained\\n\\n18 allegations that the Village’s conduct was “motivated by ill will resulting from\\n\\n\\n\\n 21\\n\\f 1 [her] previous filing of an unrelated, successful lawsuit against the Village.”\\n\\n 2 Olech, 528 U.S. at 563. It further acknowledged that the appellate court below\\n\\n 3 had ruled in favor of the plaintiff on the basis of these allegations of subjective ill\\n\\n 4 will. Id. at 563–64. Nevertheless, the Supreme Court expressly declined to adopt\\n\\n 5 the circuit court’s Equal Protection theory, see id. at 565, a theory that would have\\n\\n 6 “require[d] proof that the cause of the differential treatment of which the plaintiff\\n\\n 7 complains was a totally illegitimate animus toward the plaintiff by the\\n\\n 8 defendant,” Olech v. Vill. of Willowbrook, 160 F.3d 386, 388 (7th Cir. 1998). Instead,\\n\\n 9 the majority in Olech focused on the allegations that the Village’s demand for a\\n\\n10 33‐foot easement was “irrational and wholly arbitrary” given that the Village\\n\\n11 required only a 15‐foot easement from other similarly situated property owners.\\n\\n12 Olech, 528 U.S. at 565. It held that “[t]hese allegations, quite apart from the\\n\\n13 Village’s subjective motivation, are sufficient to state a claim for relief under\\n\\n14 traditional equal protection analysis.” Id. The Supreme Court therefore affirmed\\n\\n15 the appellate court’s judgment, without “reach[ing] the alternative theory of\\n\\n16 ‘subjective ill will’ relied on by that court.” Id. This choice is even more telling in\\n\\n17 light of Justice Breyer’s concurrence in the case. Echoing concerns raised by the\\n\\n18 circuit court, Justice Breyer warned against interpreting the Equal Protection\\n\\n\\n\\n 22\\n\\f 1 Clause in a way that would “transform[ ] run‐of‐the‐mill zoning cases into cases\\n\\n 2 of constitutional right,” and he justified his concurrence on the grounds that the\\n\\n 3 plaintiff’s allegations of “ill will” were “sufficient to minimize [this] concern[.]”\\n\\n 4 Id. at 566.\\n\\n 5 Our reading of Olech finds support in Second Circuit caselaw. See, e.g.,\\n\\n 6 Harlen, 273 F.3d at 499–500 (collecting cases that support this interpretation of\\n\\n 7 Olech). Indeed, it appears that Neilson developed this Circuit’s similarity\\n\\n 8 standard for an Olech claim based on the assumption that Olech did not require a\\n\\n 9 showing of malice. Specifically, Neilson derived its standard by comparing (1) a\\n\\n10 case where the plaintiff seeks to prevail on an Olech claim “based on similar\\n\\n11 circumstances alone,” with (2) a case where the plaintiff claims “discrimination\\n\\n12 based on membership in a specific protected class.” Neilson, 409 F.3d at 104–05\\n\\n13 (internal quotation marks omitted, emphasis added). We noted that, to succeed\\n\\n14 in the latter case, a plaintiff must prove both that he was treated differently from\\n\\n15 another similarly situated, and that the differential treatment was motivated by\\n\\n16 the plaintiff’s membership in a protected class. Id. at 105. In an Olech claim, by\\n\\n17 contrast, the existence of persons in similar circumstances is offered not only to\\n\\n18 show disparate treatment, but to also “provide an inference that the plaintiff was\\n\\n\\n\\n 23\\n\\f 1 intentionally singled out for reasons that so lack any reasonable nexus with a\\n\\n 2 legitimate governmental policy that an improper purpose – whether personal or\\n\\n 3 otherwise – is all but certain.” Id. Thus, we distinguished Olech from the typical,\\n\\n 4 class‐based Equal Protection claim on the grounds that, in an Olech claim, the\\n\\n 5 disparate treatment and impermissible motive inquiries are “virtually one and\\n\\n 6 the same.” Id. An Olech claim asserts that the distinction between the plaintiff’s\\n\\n 7 case and those similarly situated is so arbitrary and irrational that it fails to pass\\n\\n 8 even the “minimal” equal protection standard: that distinctions among the\\n\\n 9 objects of government action must be rationally related to a legitimate\\n\\n10 government objective. See Kotch v. Bd. Of River Port Pilot Comm’rs for Port of New\\n\\n11 Orleans, 330 U.S. 552, 564 (1947) (upholding a licensing scheme that disfavored\\n\\n12 persons not related to current river boat pilots based on possible efficiency and\\n\\n13 safety benefits of close ties among pilots).\\n\\n14 On the basis of this analytical difference, we concluded that Olech claims,\\n\\n15 which “rel[y] on similarity alone,” should be subjected to a more stringent\\n\\n16 similarity standard than class‐based discrimination claims. Neilson, 409 F.3d at\\n\\n17 106. To hold otherwise, we observed, would yield a “pervers[e]” outcome,\\n\\n18 namely: it would be easier for plaintiffs to plead an Olech claim than a race\\n\\n\\n\\n 24\\n\\f 1 discrimination case, “the core of equal protection[.]” Id. This is because, as noted\\n\\n 2 above, race discrimination claims require proof of both disparate treatment and\\n\\n 3 racial animus, while “[a] finding of general ‘similarity’ alone would do the trick\\n\\n 4 in the ‘class of one’ case.” Id.. Because we were unwilling to take the law of\\n\\n 5 Equal Protection down such a path, we set forth the “extremely high” similarity\\n\\n 6 standard that has come to govern Olech claims in this Circuit, requiring a plaintiff\\n\\n 7 to prove that “(i) no rational person could regard the circumstances of the\\n\\n 8 plaintiff to differ from those of a comparator to a degree that would justify the\\n\\n 9 differential treatment on the basis of a legitimate government policy; and (ii) the\\n\\n10 similarity in circumstances and difference in treatment are sufficient to exclude\\n\\n11 the possibility that the defendant acted on the basis of a mistake.” Id. at 104–05.\\n\\n12 Today’s opinion therefore validates the premise upon which this Circuit\\n\\n13 has constructed its standard for an Olech claim. Olech, unlike the malice‐based\\n\\n14 theory of Equal Protection under LeClair, does not require proof of a defendant’s\\n\\n15 subjective ill will towards the plaintiff. Instead, a plaintiff may prevail on an\\n\\n16 Olech claim based on prima facie identical circumstances alone. In reaching this\\n\\n17 conclusion, we are mindful of the concerns raised by Justice Breyer’s concurrence\\n\\n18 about transforming “run‐of‐the‐mill” enforcement actions into constitutional\\n\\n\\n\\n 25\\n\\f 1 causes of action. Olech, 528 U.S. at 566. We believe, however, that Neilson’s\\n\\n 2 exacting similarity standard limits the risk that Olech “will create a flood of\\n\\n 3 claims in that area of government action where discretion is high and variation is\\n\\n 4 common.” Del Marcelle v. Brown Cty. Corp., 680 F.3d 887, 915 (7th Cir. 2012)\\n\\n 5 (Wood, J., dissenting).\\n\\n 6 We would also note that Olech has been cabined in other ways. Most\\n\\n 7 notably, the Supreme Court in Engquist v. Oregon Department of Agriculture, 553\\n\\n 8 U.S. 591, 594 (2008), barred public employees from bringing Olech claims against\\n\\n 9 their government employers. The Court reasoned that some types of state action\\n\\n10 are so inherently discretionary that they are not suitable for an Olech cause of\\n\\n11 action. Id. at 603. In such situations, the Engquist Court explained, “allowing a\\n\\n12 challenge based on the arbitrary singling out of a particular person would\\n\\n13 undermine the very discretion that such state officials are entrusted to exercise.”\\n\\n14 Id. The Court found that “[t]his principle applies most clearly in the employment\\n\\n15 context, for employment decisions are quite often subjective and individualized,\\n\\n16 resting on a wide array of factors that are difficult to articulate and quantify.” Id.\\n\\n17 at 604. We have read Engquist as essentially “a jurisdiction‐limiting decision”\\n\\n18 and, while we have declined to extend Engquist’s bar to “all class‐of‐one claims\\n\\n\\n\\n 26\\n\\f 1 involving discretionary state action,” we have suggested that “there may be\\n\\n 2 some circumstances where Engquist is properly applied outside of the\\n\\n 3 employment context.” Analytical Diagnostic Labs, 626 F.3d at 140, 142. We have\\n\\n 4 noted, however, that Engquist’s limitation on “class of one” claims is more likely\\n\\n 5 to apply when the state acts as a proprietor rather than as a regulator, reasoning\\n\\n 6 that “[t]he government has significantly greater leeway in its dealings with\\n\\n 7 citizen employees than it does when it brings its sovereign power to bear on\\n\\n 8 citizens at large.” Id. at 142 (internal quotation marks omitted). Admittedly, we\\n\\n 9 have not found occasion to extend Engquist outside of the employment context.\\n\\n10 See id. at 142–43 (concluding that Engquist did not apply to a state system for\\n\\n11 issuing clinical testing laboratory permits); Fortress Bible Church v. Feiner, 694 F.3d\\n\\n12 208, 222 (2d Cir. 2012) (finding that Engquist did not apply to a town’s zoning\\n\\n13 decisions). Nevertheless, our caselaw suggests that Engquist protects against the\\n\\n14 concern that, notwithstanding Neilson’s strict similarity standard, Olech will flood\\n\\n15 the courts with Equal Protection cases involving highly discretionary\\n\\n16 government action.\\n\\n17 Having concluded that malice is not a requirement of an Olech claim, we\\n\\n18 now turn to the question of whether Olech and LeClair require the same degree of\\n\\n\\n\\n 27\\n\\f 1 similarity between a plaintiff and her proffered comparator. Neilson also\\n\\n 2 supplies the answer to this second question. As explained above, Neilson applied\\n\\n 3 a higher similarity standard to Olech claims than to claims for race discrimination\\n\\n 4 because plaintiffs pursuing the latter claims had the extra burden of proving that\\n\\n 5 their negative treatment was caused by an impermissible motive. See supra at 23–\\n\\n 6 24. That same logic, however, counsels in favor of applying a lower similarity\\n\\n 7 standard to LeClair claims than to Olech claims, because LeClair also requires\\n\\n 8 plaintiffs to not only demonstrate that they have been treated differently from\\n\\n 9 another similarly situated comparator but that “the selective treatment was\\n\\n10 motivated by an intention to discriminate on the basis of impermissible\\n\\n11 considerations, such as race or religion, to punish or inhibit the exercise of\\n\\n12 constitutional rights, or by a malicious or bad faith intent to injure the person.”\\n\\n13 Zahra, 48 F.3d at 683 (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir.\\n\\n14 1992).\\n\\n15 We therefore analyze the first element of a LeClair claim under the\\n\\n16 similarity standard that we articulated in Graham v. Long Island Rail Road, 230\\n\\n17 F.3d 34 (2d Cir. 2000), and that we have since used in a variety of contexts to\\n\\n18 determine whether a plaintiff’s disparate treatment “raise[s] an inference of\\n\\n\\n\\n 28\\n\\f 1 discrimination.” Id. at 39 (Title VII discrimination claim); see also Lizardo v.\\n\\n 2 Dennyʹs, Inc., 270 F.3d 94, 101 (2d Cir. 2001) (section 1981 discrimination claim);\\n\\n 3 Men of Color Helping All Soc., Inc. v. City of Buffalo, 529 F. Appʹx 20, 26 (2d Cir.\\n\\n 4 2013) (Equal Protection claim). To satisfy this standard, “the plaintiff’s and\\n\\n 5 comparator’s circumstances must bear a reasonably close resemblance.” Brown v.\\n\\n 6 Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (internal quotation marks\\n\\n 7 omitted). They need not, however, be “identical.” Id. A plaintiff can prevail by\\n\\n 8 showing that “she was similarly situated in all material respects to the\\n\\n 9 individuals with whom she seeks to compare herself.” Graham, 230 F.3d at 39\\n\\n10 (internal quotation marks omitted).\\n\\n11 With these standards in mind, we now address whether the District Court\\n\\n12 properly dismissed the plaintiffs’ Olech claim, malice‐based LeClair claim, and\\n\\n13 race‐based LeClair claim for failure to plausibly allege a similarly situated\\n\\n14 comparator.\\n\\n15 ii. Application\\n\\n16 The Amended Complaint identifies three specific comparators relating to\\n\\n17 the plaintiffs’ jobsites at (1) 139‐20 34th Avenue, Flushing New York (“the 34th\\n\\n18 Avenue Jobsite”); (2) 43‐05 162nd Street, Flushing New York (“the 43‐05\\n\\n19 Jobsite”); and (3) 542 West 22nd Street, New York (“the West 22nd Jobsite”). In\\n 29\\n\\f 1 addition, the plaintiffs rely on statistics concerning Burkart’s enforcement\\n\\n 2 practices to show that they have been treated differently than similarly situated\\n\\n 3 non‐Asians. For the reasons discussed below, only the 34th Avenue Jobsite\\n\\n 4 plausibly satisfies the lower similarity standard of a LeClair claim – albeit, barely.\\n\\n 5 None of the proffered comparators, however, satisfy the more stringent\\n\\n 6 similarity requirements of an Olech claim. Thus, because Olech and LeClair both\\n\\n 7 require the plaintiffs to plausibly plead at least one similarly situated\\n\\n 8 comparator, we affirm the District Court’s dismissal of the plaintiffs’ Olech claim\\n\\n 9 but vacate as to their LeClair claims for race‐based and malice‐based\\n\\n10 discrimination.\\n\\n11 a. LeClair Claims\\n\\n12 The first proffered comparator concerns work conducted at the 34th\\n\\n13 Avenue Jobsite. Specifically, the plaintiffs allege that Burkart issued them a\\n\\n14 violation “for having a pool of water” on the 34th Avenue Jobsite. Hu Appx. at\\n\\n15 A37 ¶ 190. Later, Burkart returned to the location when white workers were\\n\\n16 performing work on the jobsite. Even though these white workers were also\\n\\n17 working next to a pool of water, Burkart did not issue them a notice of violation\\n\\n18 or otherwise interrupt their work. Instead, Burkart reserved “such negative\\n\\n19 treatment for Asian workers.” Id. at A39 ¶ 202.\\n 30\\n\\f 1 The District Court concluded that these allegations were “suggestive” but\\n\\n 2 “not sufficient to show that any of the plaintiffs were similarly situated to these\\n\\n 3 white workers in all material respects.” See Hu Appellants’ Special Appendix\\n\\n 4 (“District Court Ruling”) (Doc. No. 42), Case No. 18‐737‐cv at SPA16. In arriving\\n\\n 5 at this outcome, the lower court faulted the plaintiffs for failing to allege\\n\\n 6 sufficient details about the circumstances surrounding the violation, “such as\\n\\n 7 how deep the standing water was, how long it had been sitting at the site, or\\n\\n 8 whether there were other violations at the job site.” Id.\\n\\n 9 To survive a motion to dismiss, however, the plaintiffs’ Amended\\n\\n10 Complaint “need not contain ‘detailed factual allegations[.]’” Matson v. Bd. of\\n\\n11 Educ. of City Sch. Dist. of New York, 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft\\n\\n12 v. Iqbal, 556 U.S. 662, 678 (2009)). While the plaintiffs must plead factual\\n\\n13 allegations that “raise a right to relief above the speculative level,” Bell Atl. Corp.\\n\\n14 v. Twombly, 550 U.S. 544, 555 (2007), Twombly and Iqbal “do not require heightened\\n\\n15 fact pleading of specifics, but only enough facts to state a claim to relief that is\\n\\n16 plausible on its face.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.\\n\\n17 2010). So long as a plaintiff pleads “factual content that allows the court to draw\\n\\n18 the reasonable inference that the defendant is liable for the misconduct alleged,”\\n\\n\\n\\n 31\\n\\f 1 Iqbal, 556 U.S. at 678, “a well‐pleaded complaint may proceed even if it strikes a\\n\\n 2 savvy judge that actual proof of those facts is improbable, and that a recovery is\\n\\n 3 very remote and unlikely,” Twombly, 550 U.S. at 556 (internal quotation marks\\n\\n 4 omitted).\\n\\n 5 The plaintiffs in this case have satisfied the standard of plausibility by\\n\\n 6 alleging differential treatment by the same defendant (Burkart) for the same\\n\\n 7 conduct (having a pool of standing water) at the same jobsite (the 34th Avenue\\n\\n 8 Jobsite). While these allegations are admittedly few in number, they nonetheless\\n\\n 9 allow us to plausibly infer “a reasonably close resemblance” between the\\n\\n10 plaintiffs and the white workers. Discovery in this case may ultimately confirm\\n\\n11 the District Court’s suspicions that water depth, the existence of other building\\n\\n12 code violations, the outstanding violation for the same condition, or any number\\n\\n13 of on‐site characteristics render the resemblance between the plaintiffs and the\\n\\n14 white workers less than “reasonably close.” Graham, 230 F.3d at 40. At this early\\n\\n15 stage in the litigation, however, the plaintiffs’ failure to plead such fact‐specific\\n\\n16 details should not bar their LeClair claims.\\n\\n17 We recognize, of course, that “[t]here is no precise formula to determine\\n\\n18 whether an individual is similarly situated to comparators.” McDonald v. Vill. of\\n\\n\\n\\n 32\\n\\f 1 Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004); Lindquist v. City of Pasadena Texas, 669\\n\\n 2 F.3d 225, 234 (5th Cir. 2012) (“[T]he inquiry is case‐specific and requires us to\\n\\n 3 consider the full variety of factors that an objectively reasonable decisionmaker\\n\\n 4 would have found relevant in making the challenged decision.”) (quoting Griffin\\n\\n 5 Indus., Inc. v. Irvin, 496 F.3d 1189, 1203 (11th Cir. 2007) (internal quotation marks\\n\\n 6 and alterations omitted)). The question of “whether parties are similarly situated\\n\\n 7 is [generally] a fact‐intensive inquiry” that depends heavily on the particular\\n\\n 8 context of the case at hand. Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.\\n\\n 9 2006); see also Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004)\\n\\n10 (“Inevitably, the degree to which others are viewed as similarly situated depends\\n\\n11 substantially on the facts and context of the case.”). However, it is precisely in\\n\\n12 light of the inquiry’s fact‐intensive nature that we have cautioned against\\n\\n13 deciding whether two comparators are similarly situated on a motion to dismiss.\\n\\n14 See Brown, 756 F.3d at 230 (“Ordinarily, whether two employees are similarly\\n\\n15 situated presents a question of fact, rather than a legal question to be resolved on\\n\\n16 a motion to dismiss.” (internal quotation marks and alterations omitted)); cf.\\n\\n17 Chapman v. New York State Div. for Youth, 546 F.3d 230, 238 (2d Cir. 2008)\\n\\n18 (“[M]arket definition is a deeply fact‐intensive inquiry and courts therefore\\n\\n\\n\\n 33\\n\\f 1 hesitate to grant motions to dismiss for failure to plead a relevant product\\n\\n 2 market . . . .” (internal quotation marks and alterations omitted)).\\n\\n 3 On appeal, the defendants raise four additional arguments in favor of\\n\\n 4 dismissal, none of which is availing. First, the defendants fault the Amended\\n\\n 5 Complaint for not expressly alleging that there were Asian workers at the 34th\\n\\n 6 Avenue Jobsite when Burkart issued the violation for the pool of water. While\\n\\n 7 the defendants are technically correct, other factual allegations in the Amended\\n\\n 8 Complaint provide a basis for reasonably inferring that Burkart issued the\\n\\n 9 violation when Asian workers were working on the site. For example, the\\n\\n10 Amended Complaint alleges that “Burkart issued a violation [to the plaintiffs],\\n\\n11 though, as discussed below, he did not issue one when non‐Asian workers were\\n\\n12 performing work in and around the same standing water.” Hu Appx. at A37 ¶\\n\\n13 192. The plaintiffs’ description of the white workers as “non‐Asian” supports the\\n\\n14 inference that the workers who were present when Burkart issued his violation\\n\\n15 were Asian. This inference is bolstered by the allegation that Burkart “reserved\\n\\n16 such negative treatment [i.e., the issuance of a violation] for Asian workers,” id. at\\n\\n17 A39 ¶ 202, which allegation in essence states that the violation was issued when\\n\\n18 the workers on the site with the pool of water were Asian. When these\\n\\n\\n\\n 34\\n\\f 1 allegations are combined with the fact that the plaintiffs are an Asian worker and\\n\\n 2 Asian‐owned companies, they create the plausible inference that Burkart issued a\\n\\n 3 violation for the pool of water when Asian workers were working at the 34th\\n\\n 4 Avenue Jobsite, but declined to issue a violation for the same pool of water when\\n\\n 5 white workers were working at the location.\\n\\n 6 Second, the defendants argue that the white workers cannot be similarly\\n\\n 7 situated to NY Drilling or 888 Consulting because individuals cannot be similarly\\n\\n 8 situated to corporate entities. However, they offer no explanation or caselaw in\\n\\n 9 support of this assertion, and it is not clear to us why corporate form is material\\n\\n10 to the similarly situated analysis in this case. According to the plaintiffs’ theory\\n\\n11 of discrimination, NY Drilling and 888 Consulting are being unfairly targeted\\n\\n12 because Burkart has identified them as “Asian” construction companies that\\n\\n13 work closely with Hu. Thus, from Burkart’s perspective, it is not the plaintiffs’\\n\\n14 corporate form that materially distinguishes them from other entities working in\\n\\n15 the construction industry. Instead, it is the fact that these corporate plaintiffs are\\n\\n16 owned and controlled by Asians and have close associations with Hu. Said\\n\\n17 another way, the defendants discriminate against NY Drilling and 888\\n\\n18 Consulting based on the identities of these companies’ employees and business\\n\\n\\n\\n 35\\n\\f 1 associates. Indeed, it can be reasonably inferred from the Amended Complaint\\n\\n 2 that the defendants use the presence of Asian workers to identify and target\\n\\n 3 jobsites that are being run by these plaintiffs. See Hu Appx. at A44 ¶ 249\\n\\n 4 (“Plaintiffs have been forced to put Caucasian people in positions whereby they\\n\\n 5 interact with inspectors, so as to facilitate lifting of [stop work orders] and\\n\\n 6 releasing of permits.”). Thus, because NY Drilling and 888 Consulting are being\\n\\n 7 adversely targeted based on the race and identities of their owners and workers,\\n\\n 8 they can prove their discrimination claim by showing that their Asian employees\\n\\n 9 have been treated differently from similarly situated non‐Asian workers.\\n\\n10 Third, the defendants fault the plaintiffs for not citing the specific\\n\\n11 provision of the building code that they and the white workers allegedly violated\\n\\n12 by having a pool of water at the 34th Avenue Jobsite. Although this is true, the\\n\\n13 plaintiffs do allege the precise conduct forming the basis of their alleged\\n\\n14 violation of the building code, i.e., performing construction work at a jobsite that\\n\\n15 has a pool of water. Drawing all inferences in favor of the plaintiffs, a reasonable\\n\\n16 juror could infer from the Amended Complaint that the white workers violated\\n\\n\\n\\n\\n 36\\n\\f 1 the same building code provision that the plaintiffs allegedly did by engaging in\\n\\n 2 the same conduct at the same jobsite.4\\n\\n 3 Finally, the defendants argue that the 34th Avenue Jobsite cannot serve as\\n\\n 4 a comparator because NY Drilling was the general contractor on the site and\\n\\n 5 therefore responsible for any violation issued to that location, regardless of\\n\\n 6 whether the violation sanctioned the plaintiffs’ workers or the white workers.\\n\\n 7 The defendants speculate that, if Burkart was, in fact, targeting the plaintiffs, he\\n\\n 8 would have also sanctioned the white workers for the pool of water, presumably\\n\\n 9 knowing that such a sanctioning would ultimately hurt NY Drilling. This\\n\\n10 argument, however, assumes facts that are not found in the Amended\\n\\n11 Complaint. The plaintiffs do not allege that NY Drilling was the general\\n\\n12 contractor on the 34th Avenue Jobsite. Nor does the Amended Complaint allege\\n\\n13 that any violation issued at a jobsite is issued to the jobsite’s general contractor,\\n\\n14 as opposed to the jobsite’s subcontractors. Instead, the Amended Complaint\\n\\n\\n\\n 4 As support for their assertion that the plaintiffs must identify the specific Building Code\\n provision that was violated by having a pool of water on the Jobsite, the defendants cite to the Fifth\\n Circuit’s decision in Lindquist v. City of Pasadena Texas, 669 F.3d 225, 234 (5th Cir. 2012), which decision\\n held that, in a case that “involves the application of an ordinance or statute, the plaintiff’s and\\n comparators’ relationships with the ordinance at issue will generally be a relevant characteristic for\\n purposes of the similarly‐situated analysis.” However, Lindquist was decided at the summary judgment\\n stage, not on a motion to dismiss. Id. at 227. Here, at the pleading stage, it can reasonably be inferred\\n from the factual allegations of the Amended Complaint that the white workers and the plaintiffs violated\\n the same building code provision by engaging in the same conduct at the same jobsite.\\n 37\\n\\f 1 merely alleges that the plaintiffs were issued a notice of violation for performing\\n\\n 2 work on a jobsite with a pool of water. To assume that NY Drilling was\\n\\n 3 responsible for all violations issued at the 34th Avenue Jobsite, including any\\n\\n 4 violation that could have been issued to the white workers, would be drawing\\n\\n 5 inferences against the plaintiffs.\\n\\n 6 Admittedly, the question of whether these factual allegations plausibly\\n\\n 7 support a LeClair claim is a close one. The plaintiffs have certainly not made it\\n\\n 8 easy for this court to conclude that they bear a reasonably close resemblance to\\n\\n 9 the white workers at the 34th Avenue Jobsite. Nevertheless, drawing all\\n\\n10 inferences in favor of the plaintiffs, and resolving all ambiguities against the\\n\\n11 defendants, we conclude that these allegations are sufficient to satisfy the\\n\\n12 “reasonably close resemblance” standard of similarity that governs the plaintiffs’\\n\\n13 race‐based and malice‐based LeClair claims.\\n\\n14 The plausibility of their claims is strengthened by the Amended\\n\\n15 Complaint’s allegations of racial bias against Asians and personal malice against\\n\\n16 Hu, including the allegations that, inter alia, Burkart made explicitly racist\\n\\n17 comments; had a racist motive to discriminate against Asians; statistically gave\\n\\n18 more violations to Asian construction sites than did his colleagues; bragged\\n\\n\\n\\n 38\\n\\f 1 about his plans to shut down Hu’s jobsites; called Hu “a rat” for reporting a\\n\\n 2 colleague to the FBI; hung a picture of Hu on his wall; and specifically searched\\n\\n 3 DOB’s databases for construction worksites that employed Hu. These allegations\\n\\n 4 satisfy the motive element of LeClair and help “nudge” the plaintiffs’ Equal\\n\\n 5 Protection claims “across the line from conceivable to plausible.” Iqbal, 556 U.S.\\n\\n 6 at 680 (quoting Twombly, 550 U.S. at 570). Accordingly, we vacate the District\\n\\n 7 Court’s dismissal of the plaintiffs’ LeClair selective enforcement claims of race‐\\n\\n 8 based and malice‐based discrimination.5\\n\\n 9 b. Olech Claim\\n\\n10 In contrast, none of the plaintiffs’ proffered comparators satisfy the more\\n\\n11 stringent similarity standard for an Olech claim.\\n\\n12 With regard to the 34th Avenue Jobsite, the plaintiffs’ factual allegations\\n\\n13 are too sparse to raise a reasonable inference that Burkart’s differential treatment\\n\\n14 of the plaintiffs and the white workers “lack[ed] any reasonable nexus with a\\n\\n\\n\\n 5 We have not decided whether the Supreme Court’s decision in Engquist to bar Olech claims in\\n the employment context also applies to malice‐based LeClair claims. See Spanierman v. Hughes, 576 F.\\n Supp. 2d 292, 307 (D. Conn. 2008) (noting this uncertainty). We need not, and do not, resolve this issue\\n today. Assuming arguendo that Engquist does apply to malice‐based LeClair claims, it would not preclude\\n the plaintiffs from raising this type of claim in the present suit. As in other cases where we have\\n concluded that Engquist did not bar a class of one claim, this case involves (1) the state acting as a\\n sovereign rather than a proprietor; and (2) the defendants operating within a regulatory framework (i.e.,\\n the building code) that articulates clear standards of conduct, limits their discretion, and provides\\n mechanisms for challenging and reviewing their determinations (i.e., an Article 78 proceeding). See\\n Analytical Diagnostic Labs, 626 F.3d at 142; Fortress Bible Church, 694 F.3d at 222.\\n 39\\n\\f 1 legitimate governmental policy.” Progressive Credit Union, 889 F.3d at 49 (quoting\\n\\n 2 Neilson, 409 F.3d at 105) (internal alterations omitted). The Amended Complaint\\n\\n 3 is silent as to a whole host of potential factors that could legitimately justify\\n\\n 4 Burkart’s behavior, including, inter alia, whether the white workers were\\n\\n 5 engaged in the same type of work as the plaintiffs, the length of time between\\n\\n 6 Burkart’s visits to the 34th Avenue Jobsite, and the identity of the white workers’\\n\\n 7 employer. While we are not suggesting that any one of these omissions is\\n\\n 8 dispositive, they are, together, fatal to the plaintiffs’ Olech claim. Absent the non‐\\n\\n 9 conclusory allegations that Burkart had a race‐based animus against Asians and\\n\\n10 a personal grudge against Hu, it could not reasonably be inferred that the two\\n\\n11 situations were so identical as to “exclude the possibility that [Burkart] acted on\\n\\n12 the basis of a mistake.” Id.\\n\\n13 The plaintiffs’ second proffered comparator fares no better. In particular,\\n\\n14 the plaintiffs allege that Burkart permitted Vera Construction, a non‐Asian\\n\\n15 company, to complete foundation work at the 43‐05 Jobsite, but then promptly\\n\\n16 shut down work at that location once 43 162 St. Management, an Asian company,\\n\\n17 became responsible for the construction site. The Amended Complaint,\\n\\n18 however, is devoid of facts suggesting that the plaintiffs worked at or were\\n\\n\\n\\n 40\\n\\f 1 otherwise involved with the 43‐05 Jobsite. Thus, notwithstanding the plaintiffs’\\n\\n 2 conclusory assertions that they are similarly situated to Vera Construction and its\\n\\n 3 owner, Burkart’s conduct at the 43‐05 Jobsite does not raise a plausible inference\\n\\n 4 that Burkart treated the plaintiffs differently from Vera Construction. Thus,\\n\\n 5 while this incident may tend to prove that Burkart was biased against Asians\\n\\n 6 generally, it does not show that the plaintiffs were adversely affected by that bias.\\n\\n 7 The 43‐05 Jobsite therefore provides no basis for reversing the District Court’s\\n\\n 8 dismissal of the plaintiffs’ Olech claim, as a comparator only satisfies the pleading\\n\\n 9 requirements of that claim if the comparator “received more favorable treatment\\n\\n10 than the plaintiff.” Neilson, 409 F.3d at 105.\\n\\n11 The plaintiffs’ third proffered comparator fails for the same reason. More\\n\\n12 specifically, the plaintiffs compare DOB’s lenient treatment of Westerman\\n\\n13 Construction Company (“Westerman”), a non‐Asian contractor who oversaw the\\n\\n14 West 22nd Jobsite, with DOB’s harsher treatment of certain unnamed “Asian\\n\\n15 construction professionals” who owned and operated a second jobsite located at\\n\\n16 20‐16 College Point Boulevard, College Point, New York (“the College Point\\n\\n17 Jobsite”). See Hu Appx. at A41 ¶ 221 – A43 ¶ 244. However, the plaintiffs do not\\n\\n18 allege that they worked at or were involved with the College Point Jobsite.\\n\\n\\n\\n 41\\n\\f 1 Accordingly, there are no factual allegations to suggest that the plaintiffs were\\n\\n 2 adversely affected by DOB’s differential treatment of the two construction sites.\\n\\n 3 If anything, it appears that the plaintiffs were on the benefiting end of DOB’s\\n\\n 4 selective enforcement, as NY Drilling allegedly worked as a subcontractor at the\\n\\n 5 West 22nd Jobsite.\\n\\n 6 Finally, we reject the plaintiffs’ contention that they can satisfy the\\n\\n 7 similarly situated standard based on a statistical showing that Burkart sanctioned\\n\\n 8 Asians at higher rates than his colleagues did. Our caselaw makes clear that\\n\\n 9 statistics cannot substitute for specific comparators in Olech or LeClair claims. See\\n\\n10 Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010)\\n\\n11 (dismissing an Olech claim for failure to “allege specific examples” of similarly\\n\\n12 situated comparators); Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1988) (“To\\n\\n13 support a claim of selective enforcement, appellants must allege purposeful and\\n\\n14 systematic discrimination by specifying instances in which they were singled out\\n\\n15 for unlawful oppression in contrast to others similarly situated.” (internal\\n\\n16 quotation marks and alterations omitted)). To prevail under either theory of\\n\\n17 Equal Protection, a plaintiff must specify at least one instance in which he was\\n\\n18 treated differently from another similarly situated. See Neilson, 409 F.3d at 105\\n\\n\\n\\n 42\\n\\f 1 (holding that a plaintiff must identify “a comparator” whose circumstances are\\n\\n 2 sufficiently similar). Thus, because none of the plaintiffs’ proffered comparators\\n\\n 3 satisfy the similarity standard for an Olech cause of action, we affirm the District\\n\\n 4 Court’s dismissal of that claim.\\n\\n 5 C. Section 1981 Claim\\n\\n 6 For the same reasons that we vacate the District Court’s dismissal of the\\n\\n 7 plaintiffs’ LeClair claims, we vacate its dismissal of the plaintiffs’ section 1981\\n\\n 8 claim for race‐based interference with the plaintiffs’ rights to make and enforce\\n\\n 9 contracts. As the District Court correctly noted, “plaintiffs must meet the same\\n\\n10 pleading standard for their § 1981 claims as for their § 1983 claims under the\\n\\n11 Equal Protection Clause.” Brown v. City of Oneonta, New York, 221 F.3d 329, 339\\n\\n12 (2d Cir. 2000). Thus, to prevail on a section 1981 claim, a plaintiff must allege at\\n\\n13 least one instance in which he was treated differently from a similarly situated\\n\\n14 non‐minority. Id. (citing Albert, 851 F.2d at 573). The section 1981 standard for\\n\\n15 determining whether a plaintiff and a comparator are similarly situated is\\n\\n16 identical to the similarity standard for a LeClair Equal Protection claim. Compare\\n\\n17 supra at 28–29, with Lizardo, 270 F.3d at 101 (section 1981 race discrimination\\n\\n18 claim).\\n\\n\\n\\n 43\\n\\f 1 Recognizing these parallels, the District Court dismissed the plaintiffs’\\n\\n 2 section 1981 claim for the same reason that it dismissed their Equal Protection\\n\\n 3 claims, namely, failure to plausibly allege differential treatment of a similarly\\n\\n 4 situated comparator. We now vacate, on that issue, having concluded that the\\n\\n 5 Amended Complaint does, in fact, state an Equal Protection claim under LeClair.6\\n\\n 6 D. Due Process Claim\\n\\n 7 The plaintiffs’ Due Process claim proceeds under two theories. First, they\\n\\n 8 argue that the defendants’ discriminatory enforcement practices have deprived\\n\\n 9 them of their right to pursue their occupation of choice, namely, construction\\n\\n10 work. Second, they rely on our decision in Chalfy v. Turoff, 804 F.2d 20 (2d Cir.\\n\\n11 1986), to assert a “pattern of harassment” claim, alleging that the defendants\\n\\n12 have engaged in systematic and intentional harassment with the objective of\\n\\n13 driving the plaintiffs out of business. See Appellants’ Brief (“Pls.’ Mem.”) (Doc.\\n\\n\\n\\n\\n 6 We decline to consider whether the Amended Complaint plausibly alleges the other elements of\\n a section 1981 claim, including whether the defendants’ conduct interfered with the making and\\n enforcement of contracts. See Brown, 221 F.3d at 339 (“To establish a claim under 42 U.S.C. § 1981,\\n plaintiffs must allege facts supporting the following elements: (1) plaintiffs are members of a racial\\n minority; (2) defendantsʹ intent to discriminate on the basis of race; and (3) discrimination concerning one\\n of the statuteʹs enumerated activities.”). Instead, the District Court should address these issues in the first\\n instance if they arise on remand. See Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir. 2001) (“In\\n general, a federal appellate court does not consider an issue not passed upon below.” (internal quotation\\n marks omitted)).\\n 44\\n\\f 1 No. 39), Case No. 18‐737, at 51–54. The District Court dismissed both claims, and\\n\\n 2 we now affirm.\\n\\n 3 As to the first theory, it is well established that “the liberty component of\\n\\n 4 the Fourteenth Amendmentʹs Due Process Clause includes some generalized due\\n\\n 5 process right to choose oneʹs field of private employment.” Conn v. Gabbert, 526\\n\\n 6 U.S. 286, 291–92 (1999). That right, however, is “subject to reasonable\\n\\n 7 government regulation.” Id. at 292. “[B]rief interruption[s]” of work do not give\\n\\n 8 rise to a Due Process claim. Id. Instead, the Supreme Court, this Circuit, and the\\n\\n 9 other Circuits addressing the issue have all indicated that the right of\\n\\n10 occupational choice is afforded Due Process protection only when a plaintiff is\\n\\n11 “complete[ly] prohibit[ed]” from engaging in his or her chosen profession. Id.\\n\\n12 (“These cases all deal with a complete prohibition of the right to engage in a\\n\\n13 calling, and not the sort of brief interruption which occurred here.”); United States\\n\\n14 v. Farhane, 634 F.3d 127, 137 (2d Cir. 2011) (reading Conn to imply that “due\\n\\n15 process is violated only by complete prohibition of the right to engage in a\\n\\n16 calling” (internal quotation marks omitted)); see also, e.g., Singleton v. Cecil, 176\\n\\n17 F.3d 419, 426 n.8 (8th Cir. 1999) (“The [Conn] Court then made clear that this\\n\\n18 right has been afforded substantive due process protection only when the\\n\\n\\n\\n 45\\n\\f 1 government completely prohibits, rather than briefly interrupts, a person from\\n\\n 2 engaging in his desired occupational field.” (internal quotation marks and\\n\\n 3 alterations omitted)); Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003) (“This\\n\\n 4 indirect and incidental burden on professional practice is far too removed from a\\n\\n 5 complete prohibition to support a due process claim.”).\\n\\n 6 In this case, the plaintiffs allege that the defendants’ enforcement actions\\n\\n 7 have cost them money, clients, and future business opportunities. However,\\n\\n 8 business losses alone do not implicate the Due Process right of occupational\\n\\n 9 choice. See JWJ Indus., Inc. v. Oswego Cty., 538 F. Appʹx 11, 14 (2d Cir. 2013) (“Due\\n\\n10 process has not been construed to preclude government actions that adversely\\n\\n11 affect a businessʹs profitability.”). To prevail on such a claim, a plaintiff must\\n\\n12 allege facts suggesting that a defendant’s conduct has “operate[d] as a complete\\n\\n13 prohibition on his ability to practice [his chosen profession].” Franceschi v. Yee,\\n\\n14 887 F.3d 927, 938 (9th Cir.), cert. denied, 139 S. Ct. 648 (2018). Nothing in the\\n\\n15 Amended Complaint plausibly suggests that the plaintiffs have been driven out\\n\\n16 of the construction business, or even that they are on the verge of shutting down.\\n\\n17 If anything, the Amended Complaint appears to anticipate the plaintiffs’\\n\\n18 continued operations in the construction industry. See Hu Appx. at A44 ¶ 256\\n\\n\\n\\n 46\\n\\f 1 (“Burkart and the Inspector Defendants are not only causing Hu to lose current\\n\\n 2 income streams, but are also damaging his reputation, which will lead to further\\n\\n 3 future losses.”).\\n\\n 4 Nor can the plaintiffs create a Due Process claim by alleging that it is\\n\\n 5 Burkart’s “objective” to put them out of business. See Pls.’ Mem. at 50. When\\n\\n 6 determining whether a burden amounts to a complete prohibition of the right to\\n\\n 7 engage in a calling, courts have focused on the effects of a defendant’s conduct,\\n\\n 8 not on the intentions underlying that conduct. See, e.g., Lowry, 329 F.3d at 1023\\n\\n 9 (discussing the degree to which the defendant’s conduct interfered with the\\n\\n10 plaintiffs’ professional practice); Grider v. Abramson, 180 F.3d 739, 752 n.17 (6th\\n\\n11 Cir. 1999) (same). The concept of “complete prohibition” will not stretch so far as\\n\\n12 to cover cases where, as here, the defendant’s mal‐intent is clear but the actual\\n\\n13 risk that the plaintiff will be excluded from her profession of choice is\\n\\n14 speculative. Thus, because the plaintiffs did not allege facts suggesting that the\\n\\n15 defendants have effectively prohibited them from engaging in construction\\n\\n16 work, we affirm the District Court’s dismissal of the plaintiffs’ Due Process claim\\n\\n17 for infringement of their right of occupational choice.\\n\\n\\n\\n\\n 47\\n\\f 1 As to their second theory of Due Process, the plaintiffs rely on our decision\\n\\n 2 in Chalfy, in which we suggested that a plaintiff could make out a substantive\\n\\n 3 Due Process claim by showing that government officials engaged in systematic\\n\\n 4 and intentional harassment in an attempt to drive the plaintiff out of business.\\n\\n 5 See Chalfy, 804 F.2d at 22–23; see also Interport Pilots Agency, Inc. v. Sammis, 14 F.3d\\n\\n 6 133, 144 (2d Cir. 1994) (characterizing Chalfy as a theory of substantive Due\\n\\n 7 Process). While we have not revisited this “pattern of harassment” theory of Due\\n\\n 8 Process since deciding Chalfy, district courts in this Circuit have continued to\\n\\n 9 treat it as a viable cause of action. See, e.g., Bertuglia v. City of New York, 839 F.\\n\\n10 Supp. 2d 703, 719 (S.D.N.Y. 2012) (denying the defendants’ motion to dismiss as\\n\\n11 to some of the plaintiffs’ Chalfy claims).\\n\\n12 In this case, the District Court dismissed the plaintiffs’ Chalfy claim on the\\n\\n13 grounds that the enforcement actions described in the Amended Complaint did\\n\\n14 not rise to the level of systematic and intentional harassment. We affirm the\\n\\n15 dismissal on different grounds, concluding that the plaintiffs’ substantive Due\\n\\n16 Process claim is subsumed by their Equal Protection claim.\\n\\n17 In the years following our decision in Chalfy, the Supreme Court narrowed\\n\\n18 the scope of substantive Due Process to claims that are not covered by other\\n\\n\\n\\n 48\\n\\f 1 provisions of the Constitution. See Graham v. Connor, 490 U.S. 386, 394–95 (1989)\\n\\n 2 (holding that excessive force claims should be analyzed under the Fourth\\n\\n 3 Amendment, rather than under substantive Due Process); Albright v. Oliver, 510\\n\\n 4 U.S. 266, 273 (1994) (plurality) (limiting the scope of substantive Due Process to\\n\\n 5 claims that do not have “an explicit textual source of constitutional protection”);\\n\\n 6 Conn, 526 U.S. at 293 (same). It is now well established that, “[w]here another\\n\\n 7 provision of the Constitution provides an explicit textual source of constitutional\\n\\n 8 protection, a court must assess a plaintiffʹs claims under that explicit provision\\n\\n 9 and not the more generalized notion of substantive due process.” Southerland v.\\n\\n10 City of New York, 680 F.3d 127, 142–43 (2d Cir. 2012) (quoting Kia P. v. McIntyre,\\n\\n11 235 F.3d 749, 757–58 (2d Cir. 2000)). In this case, the plaintiffs’ Chalfy claim and\\n\\n12 Equal Protection claim both rest on the same set of factual allegations, namely:\\n\\n13 that Burkart and his colleagues selectively enforced the building code against the\\n\\n14 plaintiffs based on Burkart’s racial animus towards Asians and his personal\\n\\n15 animus towards Hu. As a result, the plaintiffs’ substantive Due Process\\n\\n16 allegations are subsumed by their more particular allegations of Equal Protection\\n\\n17 violations. See Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005) (holding that the\\n\\n18 plaintiff’s substantive due process claim was subsumed by the alleged First\\n\\n\\n\\n 49\\n\\f 1 Amendment and Equal Protection violations); Terminate Control Corp. v. Horowitz,\\n\\n 2 28 F.3d 1335, 1351 n.8 (2d Cir. 1994) (dismissing a plaintiff’s substantive Due\\n\\n 3 Process claim because it was duplicative of the plaintiff’s Equal Protection claim);\\n\\n 4 see also Wilson v. Birnberg, 667 F.3d 591, 599 (5th Cir. 2012) (disregarding the\\n\\n 5 plaintiff’s substantive due process claims because they were “rooted in\\n\\n 6 procedural due process, the Equal Protection Clause, and the First\\n\\n 7 Amendment”). We therefore affirm the District Court’s dismissal of the Chalfy\\n\\n 8 claim on different grounds, concluding that this claim must be analyzed under\\n\\n 9 the Equal Protection Clause.7\\n\\n10 E. Monell Claim\\n\\n11 We also affirm the dismissal of the plaintiffs’ Monell claim against the City,\\n\\n12 concluding, as the lower court did, that the plaintiffs have not plausibly alleged\\n\\n13 the existence of an official municipal policy.\\n\\n14 To bring a section 1983 lawsuit for municipal liability, “a plaintiff must\\n\\n15 prove that action pursuant to official municipal policy caused the alleged\\n\\n16 constitutional injury.” Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011)\\n\\n\\n\\n\\n 7 In reaching this outcome, we do not mean to suggest that Chalfy is a dead letter. There may be\\n situations in which a Chalfy claim is not covered by an explicit provision of the Constitution. However,\\n on the factual allegations presented in this case, we conclude that the plaintiffs’ Chalfy claim for\\n intentional and systematic government harassment is precluded by their Equal Protection claims.\\n 50\\n\\f 1 (internal quotation marks omitted). This requirement follows from the principle\\n\\n 2 that, “under § 1983, local governments are responsible only for their own illegal\\n\\n 3 acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation marks\\n\\n 4 omitted). In other words, “a city cannot be held liable under § 1983 on a theory\\n\\n 5 of respondeat superior.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d\\n\\n 6 Cir. 2004). Instead, “a plaintiff must demonstrate that, through its deliberate\\n\\n 7 conduct, the municipality was the moving force behind the alleged injury.” Roe\\n\\n 8 v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (internal quotation marks\\n\\n 9 omitted).\\n\\n10 An official municipal policy can take a variety of forms. See, e.g., Cash, 654\\n\\n11 F.3d at 334 (“A municipal policy may be pronounced or tacit and reflected in\\n\\n12 either action or inaction.”). This case, however, only implicates two theories of\\n\\n13 municipal action, namely: (1) that a policymaking officer ratified the\\n\\n14 discriminatory enforcement practices of Burkart and his colleagues; and (2) that\\n\\n15 these unconstitutional practices were so widespread, persistent, and manifest as\\n\\n16 to imply constructive acquiescence on the part of the City.\\n\\n17 To prevail on the first theory, a plaintiff must allege facts suggesting that\\n\\n18 an officer with final policymaking authority ordered, ratified, or “was aware of a\\n\\n\\n\\n 51\\n\\f 1 subordinate’s unconstitutional actions, and consciously chose to ignore them,\\n\\n 2 effectively ratifying the actions.” Amnesty Am., 361 F.3d at 126. A plaintiff need\\n\\n 3 only identify one such decision to bring a Monell claim, for “even a single action\\n\\n 4 by a decisionmaker who possesses final authority to establish municipal policy\\n\\n 5 with respect to the action ordered may deprive the plaintiff of his or her\\n\\n 6 constitutional rights.” Montero v. City of Yonkers, New York, 890 F.3d 386, 403 (2d\\n\\n 7 Cir. 2018) (internal quotation marks and alterations omitted). The question of\\n\\n 8 whether an official “possessed final policymaking authority is a legal question,\\n\\n 9 which is to be answered on the basis of state law, . . . includ[ing] state and local\\n\\n10 positive law, as well as custom or usage having the force of law.” Jeffes v. Barnes,\\n\\n11 208 F.3d 49, 57 (2d Cir. 2000) (internal quotation marks, citations, and alterations\\n\\n12 omitted).\\n\\n13 As support for their ratification theory of municipal action, the plaintiffs\\n\\n14 point to Hu’s 2011 meeting with Burkart, an unnamed aide to a New York City\\n\\n15 Councilman, and Inspector Kaleid, the head of the Concrete Enforcement Unit\\n\\n16 (“CEU”) at the time. During this meeting, Inspector Kaleid allegedly dismissed\\n\\n17 Hu’s concerns about Burkart’s targeting of Asian construction workers and\\n\\n18 companies, stating that “[Burkart] is good for the City because he generates a lot\\n\\n\\n\\n 52\\n\\f 1 of revenue through his issuance of notices of violation.” Hu Appx. at A25 ¶ 83.\\n\\n 2 The plaintiffs contend that Inspector Kaleid’s response amounted to a\\n\\n 3 “ratification [that] gave license for DOB Inspectors to engage in such\\n\\n 4 misconduct[.]” Appellants’ Reply Brief (Doc. No. 76), Case No. 18‐737, at 23.\\n\\n 5 Nothing in the Amended Complaint, however, suggests that Inspector\\n\\n 6 Kaleid possessed final policymaking authority over Burkart’s enforcement\\n\\n 7 practices. The plaintiffs themselves appear to acknowledge in their Amended\\n\\n 8 Complaint that New York law vests DOB Commissioner Chandler, not Inspector\\n\\n 9 Kaleid, with final policymaking authority over DOB enforcement practices.\\n\\n10 There is no basis in the Amended Complaint for concluding that custom or usage\\n\\n11 imbued Inspector Kaleid with such authority. Nor is there a basis for attributing\\n\\n12 Inspector Kaleid’s dismissal of Hu’s grievances to Commissioner Chandler.\\n\\n13 Indeed, the Amended Complaint is devoid of factual allegations suggesting that\\n\\n14 Commissioner Chandler was personally involved in, or aware of, the 2011\\n\\n15 meeting, Burkart’s discriminatory enforcement practices, or any other\\n\\n16 unconstitutional actions taken by DOB’s subordinate officers.8 As a result, the\\n\\n\\n 8The Amended Complaint also alleges in conclusory terms that the City and Chandler “were [ ]\\n on notice” due to Hu’s complaint to the FBI regarding Dabusco. Hu Appx. at A60 ¶ 352. The plaintiffs\\n do not press this argument on appeal, which, in any event, has no merit. It cannot be reasonably inferred\\n that Hu’s FBI complaint, which alleged that Dabusco was engaging in extortion, put the City on notice\\n\\n\\n 53\\n\\f 1 plaintiffs have not raised a plausible inference that their constitutional injuries\\n\\n 2 were caused by a City official with final policymaking authority.\\n\\n 3 The plaintiffs’ second theory of municipal action seeks to hold the City\\n\\n 4 liable based on constructive notice. While “isolated acts by non‐policymaking\\n\\n 5 municipal employees are generally not sufficient to demonstrate a municipal\\n\\n 6 custom, policy, or usage that would justify liability,” we have recognized that\\n\\n 7 “they can be the basis of liability if they . . . were sufficiently widespread and\\n\\n 8 persistent to support a finding that they constituted a custom, policy, or usage of\\n\\n 9 which supervisors must have been aware.” Matusick v. Erie Cty. Water Auth., 757\\n\\n10 F.3d 31, 62 (2d Cir. 2014) (internal quotation marks and alterations omitted). To\\n\\n11 prevail on such a theory of Monell liability, a plaintiff need not identify an\\n\\n12 express rule or regulation that embodies the alleged unconstitutional practice\\n\\n13 among subordinate municipal employees. Green v. City of New York, 465 F.3d 65,\\n\\n14 80 (2d Cir. 2006). However, the plaintiff must show that “the alleged practice\\n\\n15 [was] so manifest as to imply the constructive acquiescence of senior policy‐\\n\\n16 making officials.” Id. (internal quotation marks omitted).\\n\\n\\n\\n\\n that other DOB officials were targeting the plaintiffs for unwarranted building code violations on the\\n basis of race and personal animus.\\n 54\\n\\f 1 The allegations of misconduct in this case do not rise to such a level. The\\n\\n 2 Amended Complaint only identifies four instances in which the plaintiffs were\\n\\n 3 alleged to have been unfairly sanctioned by DOB. Although the plaintiffs argue\\n\\n 4 that these specific enforcement actions are illustrative of a larger pattern of\\n\\n 5 unconstitutional targeting, they do not allege facts to suggest that this larger\\n\\n 6 pattern of targeting qualifies as widespread, persistent, or otherwise manifest\\n\\n 7 behavior.\\n\\n 8 Similarly, while the plaintiffs claim that Burkart enlisted the help of other\\n\\n 9 DOB employees to target and harass the plaintiffs, the Amended Complaint does\\n\\n10 not allege how many DOB employees were involved in the scheme, whether\\n\\n11 these accomplices represented a large or small share of DOB inspectors or\\n\\n12 personnel, the frequency with which these accomplices assisted in discriminatory\\n\\n13 enforcement practices, or any other facts that might indicate the extent to which\\n\\n14 DOB personnel helped Burkart carry out his alleged personal vendetta against\\n\\n15 Hu and other Asians in the construction industry. As a result, it is entirely\\n\\n16 unclear whether DOB’s targeting of the plaintiffs is the product of a few rogue\\n\\n17 officials, a department‐wide effort, or something in between.\\n\\n\\n\\n\\n 55\\n\\f 1 Likewise, the allegations that Burkart made racist remarks do not raise a\\n\\n 2 plausible inference that senior policymaking officers should have known of the\\n\\n 3 discriminatory enforcement practices. While the Amended Complaint alleges\\n\\n 4 that Burkart has been overheard harassing Asian workers, calling Hu a rat, and\\n\\n 5 bragging about his plans to drive the plaintiffs out of business, it is silent as to\\n\\n 6 the number and identities of the listeners. As a result, there is no basis for\\n\\n 7 concluding that these remarks were made “with sufficient frequency or in such a\\n\\n 8 manner that the attitude would have been known to supervisory personnel.”\\n\\n 9 Jones v. Town of East Haven, 691 F.3d 72, 82 (2d Cir. 2012). Similarly, while\\n\\n10 Burkart’s dislike of Hu and Asians may have been an open secret among\\n\\n11 construction industry professionals, there are no factual allegations to suggest\\n\\n12 that Burkart communicated this attitude directly to senior policymaking officers\\n\\n13 or in a manner that should have made senior policymaking officers aware of his\\n\\n14 discriminatory animus.\\n\\n15 In short, the Amended Complaint provides no basis for concluding that\\n\\n16 the defendants’ discriminatory enforcement actions against the plaintiffs\\n\\n17 “represent[ed] the conscious choices of the municipality itself.” Amnesty Am.,\\n\\n18 361 F.3d at 126. While it can reasonably be inferred that the plaintiffs have been\\n\\n\\n\\n 56\\n\\f 1 the victims of persistent harassment by several subordinate officers at DOB, the\\n\\n 2 factual allegations do not “compel[ ] the conclusion that the local government\\n\\n 3 has acquiesced in or tacitly authorized its subordinates’ unlawful actions.”\\n\\n 4 Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). Accordingly, we affirm the\\n\\n 5 District Court’s dismissal of the plaintiffs’ Monell claim.9\\n\\n 6 F. Dismissal with Prejudice\\n\\n 7 Finally, the plaintiffs argue that, even if the District Court properly\\n\\n 8 dismissed their federal claims under Rule 12(b)(6), it erred by dismissing those\\n\\n 9 claims with prejudice. It is true that, in general, courts should “freely give leave”\\n\\n10 to amend pleadings “when justice so requires.” Fed. R. Civ. P. 15(a)(2).\\n\\n11 However, we have also held that “no court can be said to have erred in failing to\\n\\n12 grant a request that was not made.” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir.\\n\\n\\n 9 The plaintiffs attempt to blame the defendants for any insufficiencies in their Monell claim,\\n arguing that the defendants have not timely responded to the freedom of information requests that they\\n made pursuant to New York law. We are not persuaded by this argument. As the alleged victims of the\\n defendants’ discriminatory targeting, the plaintiffs presumably possessed information on the number and\\n types of sanctions and violations that they have received over the years. Nevertheless, their Amended\\n Complaint fails to describe, in even general terms, the overall volume and frequency of enforcement\\n actions taken against the plaintiffs. Moreover, even if the plaintiffs did not personally keep records of\\n this information, they conceded at oral argument that DOB posts building code violations on its website.\\n Thus, the plaintiffs do not face the situation where the facts that they need to plead their Monell claim\\n “are peculiarly within the possession and control of the defendant[.]” Citizens United v. Schneiderman, 882\\n F.3d 374, 384 (2d Cir. 2018) (internal quotation marks omitted); see also Amnesty Am., 361 F.3d at 130 n.10\\n (noting that, on a motion to dismiss a Monell claim for failure to train, a plaintiff is not required to\\n “identify a specific deficiency in the [ ] training program or to establish a causal link between the lack of\\n training and the misconduct [because] [i]t is unlikely that a plaintiff would have information about the\\n city’s training programs or about the cause of the misconduct at the pleading stage[.]”).\\n\\n\\n 57\\n\\f 1 2011); see also Horoshko v. Citibank, N.A., 373 F.3d 248, 249–50 (2d Cir. 2004)\\n\\n 2 (“[The] contention that the District Court abused its discretion in not permitting\\n\\n 3 an amendment that was never requested is frivolous.”). Because the plaintiffs in\\n\\n 4 this case never requested leave to amend their Amended Complaint, the District\\n\\n 5 Court did not err in declining to sua sponte grant leave to amend. We therefore\\n\\n 6 affirm the lower court’s decision to dismiss with prejudice the plaintiffs’ Olech\\n\\n 7 claim, Due Process claim, and Monell claim.10\\n\\n 8 G. State Claim\\n\\n 9 The District Court declined to exercise supplemental jurisdiction over the\\n\\n10 plaintiffs’ state tax claim on the grounds that it had dismissed all of their federal\\n\\n11 claims. Having reinstated the plaintiffs’ LeClair claims, we vacate the District\\n\\n12 Court’s decision to remand the state claim to state court. On remand, the District\\n\\n13 Court may reconsider whether to exercise supplemental jurisdiction in light of\\n\\n14 the new posture of the case.\\n\\n\\n\\n\\n 10 On appeal, the plaintiffs also argue that the District Court erred by not permitting them to\\n conduct jurisdictional discovery. This argument, however, is frivolous because the plaintiffs never made\\n such a request to the District Court. Moreover, based on the plaintiffs’ description of the discovery that\\n they seek to elicit from the defendants, it appears that the plaintiffs seek discovery on the merits of their\\n claims, rather than on jurisdictional issues.\\n 58\\n\\f1 V. CONCLUSION\\n\\n2 For the foregoing reasons, the judgment below is AFFIRMED in part\\n\\n3 insofar as the District Court dismissed the plaintiffs’ Olech claim, Due Process\\n\\n4 claim, and Monell claim. It is VACATED in part insofar as the District Court\\n\\n5 dismissed the plaintiffs’ section 1981 claim and their Equal Protection claims\\n\\n6 under LeClair for race‐based and malice‐based selective enforcement. We\\n\\n7 VACATE the District Court’s decision to decline to exercise supplemental\\n\\n8 jurisdiction over the plaintiffs’ state law claim, and we REMAND this case for\\n\\n9 further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 59\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4406333/\", \"author_raw\": \"J. HALL, District Judge:\"}]}"},"judge1":{"kind":"string","value":"JACOBS"},"judge2":{"kind":"string","value":"LYNCH"},"judge3":{"kind":"string","value":"HALL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4629080/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Eric HU, NY Drilling, Inc., and 888 Consulting Corp., Plaintiffs-Appellants, v. the CITY OF NEW YORK, Dennis Burkart, Jose L. Espaillat, Michael Camera, Rafael Collis, Salvatore Concialdi, Robert Turner, Cesar Romero, Rick D. Chandler, Muhammad Imran, D. Eric Hoyt, Defendants-Appellees, John/Jane Does, Nos. 1-10, Defendants.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-06-13\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18‐737‐cv\n Hu v. City of New York\n\n\n 1 UNITED STATES COURT OF APPEALS\n 2 FOR THE SECOND CIRCUIT\n 3 _____________________\n 4\n 5 August Term 2018\n 6\n 7 (Argued: March 6, 2019 Decided: June 13, 2019)\n 8\n 9 Docket No. 18‐737‐cv\n10 _____________________\n11\n12 ERIC HU, NY DRILLING, INC., AND 888 CONSULTING CORP.,\n13 Plaintiffs‐Appellants,\n14\n15 v.\n16\n17 THE CITY OF NEW YORK, DENNIS BURKART, JOSE L. ESPAILLAT, MICHAEL CAMERA,\n18 RAFAEL COLLIS, SALVATORE CONCIALDI, ROBERT TURNER, CESAR ROMERO, RICK D.\n19 CHANDLER, MUHAMMAD IMRAN, D. ERIC HOYT,\n20 Defendants‐Appellees,\n21\n22 JOHN/JANE DOES, NOS. 1‐10,\n23 Defendants.*\n24 _____________________\n25\n\n26 Before:\n\n27 JACOBS and LYNCH, Circuit Judges, and J. HALL, District Judge.**\n\n28 The Plaintiffs‐Appellants, an Asian construction worker and Asian‐owned\n29 companies, brought suit against the City of New York and several of its\n\n\n * The Clerk of Court is directed to amend the caption as shown above.\n\n **Judge Janet C. Hall, United States District Court for the District of Connecticut, sitting by\n designation.\n\f 1 employees, alleging that the defendants discriminatorily enforced municipal\n 2 building codes against the plaintiffs on the basis of race and personal animus. The\n 3 plaintiffs asserted Equal Protection claims under the theories articulated in Village\n 4 of Willowbrook v. Olech, 528 U.S. 562 (2000) and LeClair v. Saunders, 627 F.2d 606 (2d\n 5 Cir. 1980). They also raised claims under the Due Process Clause, section 1981 of\n 6 title 42 of the United States Code, the Monell doctrine, and New York tax law. The\n 7 United States District Court for the Eastern District of New York (Allyne Ross,\n 8 Judge) dismissed the suit under Federal Rule of Civil Procedure 12(b)(6). We\n 9 AFFIRM the District Court’s dismissal of the plaintiffs’ Olech claim, Due Process\n10 claim, and Monell claim. However, we VACATE the judgment as to the plaintiffs’\n11 section 1981 claim and LeClair claims, as well as their state law claim.\n12 _____________________\n13\n14 DANIEL J. SCHNEIDER, Farber Schneider Ferrari LLP, New York, NY,\n15 for Plaintiffs‐Appellants.\n16\n17 ANTONELLA KARLIN, Assistant Corporation Counsel (Richard\n18 Dearing and\n19 Kathy Chang Park, on the brief), for Zachary W. Carter, Corporation\n20 Counsel of the City of New York, New York, NY, for Defendants‐\n21 Appellees.\n22 _____________________\n23\n24 J. HALL, District Judge:\n\n25 Plaintiffs Eric Hu (“Hu”), 888 Consulting Corporation (“888 Consulting”),\n\n26 and NY Drilling (“NY Drilling”) are an Asian construction worker and Asian‐\n\n27 owned companies.1 They brought this lawsuit against the City of New York\n\n\n\n\n 1This appeal was heard in tandem with Hsin v. City of New York, Case No. 18‐751‐cv, a related but\n not consolidated action. We resolve Hsin in a separate Summary Order.\n 2\n\f 1 (“the City”), Assistant Chief Inspector Dennis Burkart (“Burkart”), and several of\n\n 2 Burkart’s colleagues at the Department of Buildings (“DOB”), alleging that the\n\n 3 defendants selectively enforced the City’s building codes on the basis of racial\n\n 4 animus against Asians and personal animus against Hu. The plaintiffs raised\n\n 5 claims under the Equal Protection Clause, the Due Process Clause, section 1981\n\n 6 of title 42 of the United States Code, the Monell doctrine, and New York tax law.\n\n 7 The United States District Court for the Eastern District of New York\n\n 8 (Ross, J.) dismissed the plaintiffs’ federal causes of action under Federal Rule of\n\n 9 Civil Procedure 12(b)(6) and declined to exercise supplemental jurisdiction over\n\n10 the remaining state claim. The plaintiffs now appeal, arguing that the District\n\n11 Court improperly applied a heightened pleading standard to their Amended\n\n12 Complaint. For the reasons that follow, we AFFIRM in part and VACATE in part\n\n13 the judgment below.\n\n14 I. BACKGROUND\n\n15 The Amended Complaint alleges the following facts, which we take as true\n\n16 for the purposes of evaluating a motion to dismiss.\n\n17 This action centers primarily on Burkart’s “personal vendetta” against\n\n18 Asians in general and Hu in particular. Burkart’s racial animus stems from his\n\n19 belief that Asians were responsible for the downfall of a construction company\n 3\n\f 1 that he owned prior to his employment at DOB. In particular, Burkart blames\n\n 2 Asians for undercutting his rates to the point where he could no longer compete.\n\n 3 Burkart’s alleged animus against Hu, a Taiwanese‐American construction\n\n 4 worker, has several sources. In 2011, Hu filed a complaint with DOB alleging\n\n 5 that Burkart’s enforcement of the building code was racially discriminatory.\n\n 6 Later that year, Hu sued one of Burkart’s colleagues at DOB for hitting Hu with a\n\n 7 car. Although Burkart was only a passenger in the vehicle and was not named as\n\n 8 a defendant in the lawsuit, the plaintiffs believe that DOB may have disciplined\n\n 9 Burkart for his involvement in the car accident. In 2014, Hu filed an FBI report\n\n10 alleging extortion by another of Burkart’s colleagues, Massimo Dabusco\n\n11 (“Dabusco”). As a result of the ensuing FBI investigation, Dabusco left DOB,\n\n12 pled guilty to criminal charges, and was sentenced to 18 months’ imprisonment.\n\n13 See Judgment (Doc. No. 47), United States v. Massimo Dabusco, EDNY Docket No.\n\n14 16‐CR‐559‐DLI.\n\n15 Burkart has not been shy in voicing his feelings about Asians and Hu.\n\n16 While inspecting construction worksites, Burkhart has been observed harassing,\n\n17 belittling, and threatening Asian workers. He has been overheard calling Hu “a\n\n18 rat” for reporting Dabusco to the FBI, as well as bragging about his plans to\n\n\n\n 4\n\f 1 “shut down every one of Hu’s jobsites around the city.” Hu Appellants’\n\n 2 Appendix (“Hu Appx.”) (Doc. No. 40), Case No. 18‐737‐cv, at A24 ¶ 75, A27 ¶ 96.\n\n 3 According to other DOB inspectors, Burkart even has a picture of Hu on his wall.\n\n 4 It is an open secret within the City’s construction community that a jobsite that\n\n 5 involves Hu will be shut down by DOB inspectors.\n\n 6 NY Drilling and 888 Consulting have also become targets of Burkart’s\n\n 7 animosity, due both to their racial composition and to their close ties to Hu. NY\n\n 8 Drilling is a construction company that employed Hu until 2015, when Hu\n\n 9 formed his own construction company, 888 Consulting. Both NY Drilling and\n\n10 888 Consulting are owned and controlled by Asians, and they frequently work\n\n11 with each other on construction jobs.\n\n12 Burkart has acted on his prejudices by targeting the plaintiffs’ worksites\n\n13 for inspections and unwarranted building code violations. Although DOB\n\n14 inspectors are assigned predetermined routes, Burkart regularly deviates from\n\n15 his routes to visit, inspect, and issue violations to construction sites that are\n\n16 managed and operated by Asian workers and Asian‐owned companies. He\n\n17 often does so on his own time and while off duty. Further, he conducts these site\n\n18 visits on his own initiative and not in response to public complaints, even though\n\n\n\n 5\n\f 1 DOB is a complaint‐driven agency that takes enforcement actions primarily in\n\n 2 response to grievances received from the general public. During these visits,\n\n 3 Burkart issues violations and stop work orders, often for aspects of construction\n\n 4 that fall outside the purview of his division within DOB, the Concrete\n\n 5 Enforcement Unit. Burkart also appears to issue violations to Asian‐run\n\n 6 construction sites at a higher rate than his colleagues. According to the plaintiffs’\n\n 7 review of building code violations, Burkart issues 63 percent of his violations to\n\n 8 Asian‐run construction companies, workers, or sites, as compared to between 8\n\n 9 and 28 percent for other DOB inspectors.\n\n10 While Burkart is the only defendant alleged to harbor animus against Hu\n\n11 or Asians, Burkart has enlisted the help of other DOB officers in harassing the\n\n12 plaintiffs. Burkart or members of his team actively search DOB databases to\n\n13 identify construction worksites that employ Hu. When Burkart becomes aware\n\n14 of a job involving Hu, 888 Consulting, or NY Drilling, Burkart makes sure that he\n\n15 or a member of his team visits that jobsite. Burkart also sends other DOB\n\n16 inspectors outside of their assigned routes to issue violations to Asian developers\n\n17 and contractors. Sometimes, Burkart visits a construction site, takes pictures, and\n\n18 then leaves without taking any enforcement action. Shortly thereafter, however,\n\n\n\n 6\n\f 1 another DOB inspector will return to that site and issue a violation for the\n\n 2 conditions observed by Burkart. The plaintiffs believe that Burkart directs other\n\n 3 DOB inspectors to issue violations in order to “avoid the optic of having an\n\n 4 enormous number of violations and SWO[s] [stop work orders] signed in\n\n 5 Burkart’s name which are for alleged violations beyond the scope of his own\n\n 6 duties [and] outside his route and region[.]” Hu Appx. at A34 ¶ 166.\n\n 7 The Amended Complaint details four enforcement actions. Although the\n\n 8 specifics vary, they generally involve Burkart, by himself or in coordination with\n\n 9 other DOB officers, sanctioning the plaintiffs based on fabricated or frivolous\n\n10 building code violations; orchestrating time‐consuming audits of the plaintiffs’\n\n11 jobsites; forcing the plaintiffs to install unnecessary onsite protections, such as\n\n12 additional fencing; or halting the plaintiffs’ projects with stop work orders.\n\n13 These and other enforcement actions are taking a financial toll on the\n\n14 plaintiffs. Burkart’s violations have burdened the plaintiffs with fines,\n\n15 compliance costs, and legal fees. Clients are firing the plaintiffs due to jobsite\n\n16 delays resulting from DOB audits and stop work orders, and some are suing the\n\n17 plaintiffs for breaches of contract. The plaintiffs are also losing prospective\n\n\n\n\n 7\n\f 1 business, because of Hu’s reputation as a lightning rod for DOB inspections and\n\n 2 sanctions.\n\n 3 II. PROCEDURAL HISTORY\n\n 4 The plaintiffs brought this lawsuit in April 2017. See generally Complaint\n\n 5 (Doc. No. 1), EDNY Docket No. 17‐cv‐2348. At a pre‐motion conference, the\n\n 6 District Court permitted the plaintiffs to amend their pleadings to address\n\n 7 deficiencies the Court had identified. See generally Transcript for Telephonic\n\n 8 Conference (“Pre‐Motion Conf. Tr.”) (Doc. No. 43‐8), EDNY Docket No. 17‐cv‐\n\n 9 2348. The plaintiffs filed an Amended Complaint, and the defendants moved to\n\n10 dismiss shortly thereafter. In March 2018, the District Court granted the Motion\n\n11 to Dismiss with prejudice, and this appeal followed.\n\n12 III. STANDARD OF REVIEW\n\n13 We review de novo a district court’s dismissal of a complaint under Rule\n\n14 12(b)(6). Carpenters Pension Tr. Fund of St. Louis v. Barclays PLC, 750 F.3d 227, 232\n\n15 (2d Cir. 2014). For the purposes of such a review, “this Court must accept as true\n\n16 all allegations in the complaint and draw all reasonable inferences in favor of the\n\n17 non‐moving party.” Matson v. Bd. of Educ. of City Sch. Dist. of New York, 631 F.3d\n\n18 57, 63 (2d Cir. 2011) (internal quotation marks omitted). Nevertheless, the\n\n19 plaintiff’s complaint must “contain sufficient factual matter, accepted as true, to\n\n 8\n\f 1 state a claim to relief that is plausible on its face.” Id. “A claim is facially\n\n 2 plausible when the plaintiff pleads factual content that allows the court to draw\n\n 3 the reasonable inference that the defendant is liable for the misconduct alleged.”\n\n 4 Progressive Credit Union v. City of New York, 889 F.3d 40, 48 (2d Cir. 2018) (internal\n\n 5 quotation marks omitted). In deciding a Rule 12(b)(6) motion, the court may\n\n 6 consider “only the facts alleged in the pleadings, documents attached as exhibits\n\n 7 or incorporated by reference in the pleadings[,] and matters of which judicial\n\n 8 notice may be taken.” Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir.\n\n 9 1993).\n\n10 IV. DISCUSSION\n\n11 In the Amended Complaint, the plaintiffs assert (1) Equal Protection claims\n\n12 for discriminatory enforcement of the building code; (2) a section 1981 claim for\n\n13 interfering on the basis of race with the right to make and enforce contracts; (3)\n\n14 Due Process claims for depriving them of their chosen occupation and for\n\n15 engaging in a systematic campaign of government harassment; (4) a Monell claim\n\n16 against the City; and (5) a state law taxpayer claim for violation of section 51 of\n\n17 the New York General Municipal Law.\n\n18 The District Court dismissed the federal claims with prejudice and\n\n19 declined to exercise supplemental jurisdiction over the remaining state claim. As\n 9\n\f 1 to the Equal Protection and section 1981 claims, the District Court concluded that\n\n 2 the plaintiffs had not plausibly alleged that they had been treated differently\n\n 3 from another similarly situated comparator. It dismissed the plaintiffs’ Due\n\n 4 Process claims on the grounds that the Amended Complaint did not plausibly\n\n 5 allege either (1) that the defendants’ actions had entirely precluded the plaintiffs\n\n 6 from working in the construction industry, or (2) that the defendants’ actions\n\n 7 rose to the level of intentional and systematic government harassment. Finally,\n\n 8 the District Court dismissed the plaintiffs’ Monell claim for, inter alia, failure to\n\n 9 plausibly allege that the plaintiffs’ constitutional injuries were caused by an\n\n10 official municipal policy.\n\n11 On appeal, the plaintiffs argue that District Court improperly applied a\n\n12 heightened pleading standard to their federal claims. They further argue that,\n\n13 even if dismissal of these claims was warranted, the District Court erred by\n\n14 dismissing the Amended Complaint with prejudice. We address these\n\n15 arguments below. Before doing so, however, we first respond to the defendants’\n\n16 contention that two of the plaintiffs – Hu and 888 Consulting – lack standing\n\n17 because they have not plausibly pled an injury‐in‐fact, an issue that was not\n\n18 addressed by the court below.\n\n\n\n 10\n\f 1 A. Standing\n\n 2 Because “[a]ppellate courts have an independent obligation to examine\n\n 3 their own jurisdiction,” In re TPG Troy, LLC, 793 F.3d 228, 232 (2d Cir. 2015)\n\n 4 (internal quotation marks omitted), we must always address questions of\n\n 5 standing, even when neither the parties nor the court below have considered the\n\n 6 issue, see FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230–31 (1990). To satisfy the\n\n 7 requirements of Article III standing, plaintiffs must demonstrate “(1) [an] injury‐\n\n 8 in‐fact, which is a concrete and particularized harm to a legally protected\n\n 9 interest; (2) causation in the form of a fairly traceable connection between the\n\n10 asserted injury‐in‐fact and the alleged actions of the defendant; and\n\n11 (3) redressability, or a non‐speculative likelihood that the injury can be remedied\n\n12 by the requested relief.” Selevan v. New York Thruway Auth., 711 F.3d 253, 257 (2d\n\n13 Cir. 2013) (internal quotation marks omitted). These elements “are not mere\n\n14 pleading requirements but rather an indispensable part of the plaintiff’s case[.]”\n\n15 Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). As a result, “each element must\n\n16 be supported in the same way as any other matter on which the plaintiff bears\n\n17 the burden of proof, i.e., with the manner and degree of evidence required at the\n\n18 successive stages of the litigation.” Id. Thus, “general factual allegations of\n\n19 injury resulting from the defendant’s conduct may suffice” at the pleading stage,\n 11\n\f 1 because it is presumed on a motion to dismiss that “general allegations embrace\n\n 2 those specific facts that are necessary to support the claim.” Id. (internal\n\n 3 quotation marks and alterations omitted); see also John v. Whole Foods Mkt. Grp.,\n\n 4 Inc., 858 F.3d 732, 736–37 (2d Cir. 2017) (applying Lujan’s standard).\n\n 5 Notwithstanding the defendants’ claims to the contrary, the Amended\n\n 6 Complaint plausibly alleges injuries to Hu and 888 Consulting that are fairly\n\n 7 traceable to the defendants’ alleged actions. The plaintiffs’ allegations detail how\n\n 8 Burkart and his colleagues have increased the plaintiffs’ costs of doing business\n\n 9 by conducting audits, forcing the plaintiffs to pay fines for unwarranted\n\n10 violations, and halting work on the plaintiffs’ jobsites with stop work orders. As\n\n11 a result of this targeting, the plaintiffs have not only lost current clients and\n\n12 future business, but they have also incurred legal fees challenging notices of\n\n13 violation and defending against breach‐of‐contract suits from dissatisfied clients.\n\n14 The Amended Complaint supplements these general allegations of harm with\n\n15 specific instances where the defendants’ enforcement activities financially\n\n16 burdened the plaintiffs. To take one example, Burkart allegedly “forced\n\n17 Plaintiffs, at significant cost, to install protection on neighbors’ walls” at one of\n\n18 their construction sites, which enforcement actions ultimately resulted in the\n\n\n\n 12\n\f 1 plaintiffs being fired from the job. Hu Appx. at A38 ¶¶ 193–196.2 Taken\n\n 2 together, these allegations are more than sufficient to establish Hu and 888\n\n 3 Consulting’s standing at the pleading stage. We therefore turn to the merits of\n\n 4 the plaintiffs’ claims.\n\n 5 B. Equal Protection Claims\n\n 6 The Amended Complaint can be reasonably construed as alleging three\n\n 7 types of Equal Protection claims for discrimination based on the selective\n\n 8 enforcement of the City’s building codes. The first two – which proceed under\n\n 9 the theory of LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980) – allege that the\n\n10 defendants treated the plaintiffs differently from others similarly situated on the\n\n11 basis of racial animus against Asians and personal animus against Hu. The third\n\n12 claim adopts the theory of Village of Willowbrook v. Olech, 528 U.S. 562 (2000),\n\n13 alleging that the defendants’ differential treatment of the plaintiffs violated the\n\n14 Equal Protection Clause because it was irrational and wholly arbitrary.\n\n\n\n\n 2 The Amended Complaint does not expressly allocate harms between the three plaintiffs,\n alleging instead that the various injuries accrued to the “plaintiffs.” See, e.g., Hu Appx. at A44. It does,\n however, explicitly define the “plaintiffs” to include Hu, 888 Consulting, and NY Drilling. Id. at A12.\n Thus, a natural reading of the Amended Complaint is that the alleged injuries are shared by all three\n plaintiffs, an inference that is buttressed by the fact that the plaintiffs have a close working relationship\n with one another.\n 13\n\f 1 The District Court dismissed these claims on the grounds that the\n\n 2 Amended Complaint failed to plausibly allege a comparator that was similarly\n\n 3 situated to the plaintiffs. In reaching this outcome, it correctly noted that there is\n\n 4 disagreement among district courts in this Circuit as to the degree of similarity\n\n 5 required in a LeClair claim. See Leon v. Rockland Psychiatric Ctr., 232 F. Supp. 3d\n\n 6 420, 432 (S.D.N.Y. 2017) (documenting this split). Some district courts have\n\n 7 applied the similarity standard for an Olech cause of action to LeClair claims,\n\n 8 requiring that plaintiffs show an “extremely high” level of similarity between\n\n 9 themselves and the persons to whom they compare themselves. See, e.g.,\n\n10 Kamholtz v. Yates Cty., No. 08‐CV‐6210, 2008 WL 5114964, at *5 (W.D.N.Y. Dec. 3,\n\n11 2008), affʹd, 350 F. Appʹx 589 (2d Cir. 2009); Spanierman v. Hughes, 576 F. Supp. 2d\n\n12 292, 307 (D. Conn. 2008); Dones v. City of New York, No. 07 CIV. 3085 (SAS), 2008\n\n13 WL 2742108, at *9 (S.D.N.Y. July 9, 2008). Others have applied a less stringent\n\n14 standard to LeClair claims, requiring only that plaintiffs show that they are\n\n15 “roughly equivalent” to the proffered comparators. See, e.g., Mosdos Chofetz\n\n16 Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 696–97 (S.D.N.Y. 2011); T.S.\n\n17 Haulers, Inc. v. Town of Riverhead, 190 F. Supp. 2d 455, 462–63 (E.D.N.Y. 2002). In\n\n18 this case, the District Court adopted the latter approach. It concluded, however,\n\n\n\n 14\n\f 1 that the Amended Complaint failed to allege a comparator that was even\n\n 2 roughly equivalent to the plaintiffs.\n\n 3 On appeal, neither party disputes that the plaintiffs’ LeClair claims should\n\n 4 be subjected to a less stringent similarity standard than their Olech claim. This\n\n 5 apparent agreement, however, does not control our judgment, as we are not\n\n 6 bound by stipulations of law. See Neilson v. DʹAngelis, 409 F.3d 100, 104 n.2 (2d\n\n 7 Cir. 2005), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir.\n\n 8 2008). Because we conclude that the viability of the plaintiffs’ Equal Protection\n\n 9 claims turns on the precise degree of similarity required by LeClair, we write to\n\n10 resolve this open question and, more generally, to clarify the relationship\n\n11 between LeClair and Olech. For the reasons that follow, we agree with the court\n\n12 below that a lower similarity standard applies to the plaintiffs’ LeClair claims.\n\n13 Unlike the District Court, however, we conclude that the Amended Complaint\n\n14 satisfies this less stringent standard, albeit just barely, by alleging facts that\n\n15 plausibly show a reasonably close resemblance between the plaintiffs and a\n\n16 comparator who received more favorable treatment from the defendants. We\n\n17 therefore affirm the District Court’s dismissal of the plaintiffs’ Olech claim but\n\n18 vacate as to the LeClair claims.\n\n\n\n 15\n\f 1 i. Legal Framework\n\n 2 We first articulated a theory of Equal Protection based on the selective\n\n 3 enforcement of the law in LeClair v. Saunders, a case decided nearly four decades\n\n 4 ago. 627 F.2d 606, 609–10 (2d Cir. 1980). To prevail on such a claim, a plaintiff\n\n 5 must prove that “(1) the person, compared with others similarly situated, was\n\n 6 selectively treated, and (2) the selective treatment was motivated by an intention\n\n 7 to discriminate on the basis of impermissible considerations, such as race or\n\n 8 religion, to punish or inhibit the exercise of constitutional rights, or by a\n\n 9 malicious or bad faith intent to injure the person.” Zahra v. Town of Southold, 48\n\n10 F.3d 674, 683 (2d Cir. 1995) (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d\n\n11 Cir. 1992)). As this test makes clear, “[t]he LeClair type of equal protection claim\n\n12 requires proof of disparate treatment and impermissible motivation.” Bizzarro v.\n\n13 Miranda, 394 F.3d 82, 87 (2d Cir. 2005). A plaintiff cannot merely rest on “a\n\n14 demonstration of different treatment from persons similarly situated[.]” Id.\n\n15 (quoting Crowley v. Courville, 76 F.3d 47, 53 (2d Cir. 1996)) (internal quotation\n\n16 marks and alterations omitted). Instead, he must “prove that the disparate\n\n17 treatment was caused by the impermissible motivation.” Id.. As evident from\n\n18 LeClair’s broad definition of “impermissible considerations,” LeClair protects\n\n19 against both discrimination on the basis of a plaintiff’s protected status (e.g., race\n 16\n\f 1 or a constitutionally‐protected activity) and discrimination on the basis of a\n\n 2 defendant’s personal malice or ill will towards a plaintiff. However, we have\n\n 3 cautioned that the latter type of LeClair claim, unlike the former, is “lodged in a\n\n 4 murky corner of equal protection law in which there are surprisingly few cases\n\n 5 and no clearly delineated rules to apply.” Id. at 86 (quoting LeClair, 627 F.2d at\n\n 6 608).\n\n 7 In Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), the\n\n 8 Supreme Court ventured into that murky corner and articulated what has\n\n 9 become known as the “class of one” theory of Equal Protection. The plaintiff in\n\n10 that case sought to connect her property to a municipal water supply. Id. at 563.\n\n11 When the Village of Willowbrook conditioned its approval on the plaintiff\n\n12 granting it a 33‐foot easement, the plaintiff brought suit on the grounds that the\n\n13 Village only required a 15‐foot easement from other property owners seeking\n\n14 similar water access. Id. Although the plaintiff did “not allege membership in a\n\n15 class or group,” the Supreme Court held that she could nonetheless state an\n\n16 Equal Protection claim by alleging “[1] that she has been intentionally treated\n\n17 differently from others similarly situated and [2] that there is no rational basis for\n\n18 the difference in treatment.” Id. at 564. As the Olech Court explained, this cause\n\n\n\n 17\n\f 1 of action arises out of the Equal Protection Clause’s “purpose . . . to secure every\n\n 2 person within the State’s jurisdiction against intentional and arbitrary\n\n 3 discrimination.” Id. The Court did not reach the alternative theory that the\n\n 4 Village harbored subjective ill will towards the plaintiff. Further, Olech declined\n\n 5 to specify the degree of similarity required between a plaintiff and her\n\n 6 comparator.\n\n 7 In Neilson v. DʹAngelis, 409 F.3d 100 (2d Cir. 2005), we addressed that\n\n 8 omission and set forth the Second Circuit’s similarity standard for an Olech cause\n\n 9 of action.3 See, e.g., Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d\n\n10 Cir. 2010) (relying on Neilson’s articulation of the elements of an Olech claim);\n\n11 Progressive Credit Union v. City of New York, 889 F.3d 40, 49 (2d Cir. 2018) (same).\n\n12 We held that, “[i]n order to succeed on a ‘class of one’ claim, the level of\n\n13 similarity between plaintiffs and the persons with whom they compare\n\n14 themselves must be extremely high.” Neilson, 409 F.3d at 104. More precisely, a\n\n15 plaintiff must establish that he and a comparator are “prima facie identical” by\n\n16 showing that “(i) no rational person could regard the circumstances of the\n\n\n\n 3 Although we later overruled Neilson insofar as it allowed public employees to assert Olech\n claims against their government employers, see Appel v. Spiridon, 531 F.3d 138, 139 (2d Cir. 2008), we left\n intact Neilson’s articulation of the elements of an Olech claim, see Analytical Diagnostic Labs, Inc. v. Kusel,\n 626 F.3d 135, 140 n.1 (2d Cir. 2010).\n 18\n\f 1 plaintiff to differ from those of a comparator to a degree that would justify the\n\n 2 differential treatment on the basis of a legitimate government policy; and (ii) the\n\n 3 similarity in circumstances and difference in treatment are sufficient to exclude\n\n 4 the possibility that the defendant acted on the basis of a mistake.” Id. at 105. We\n\n 5 explained that the existence of highly similar circumstances provides the basis\n\n 6 for “infer[ring] that the plaintiff was intentionally singled out for reasons that so\n\n 7 lack any reasonable nexus with a legitimate governmental policy that an\n\n 8 improper purpose – whether personal or otherwise – is all but certain.” Id.\n\n 9 While we have made efforts to clarify the contours of an Olech claim, we\n\n10 have paid less attention to the interaction between Olech and LeClair. The precise\n\n11 relationship between these doctrines, however, has become a source of some\n\n12 confusion in the Circuit. See 33 Seminary LLC v. City of Binghamton, 670 F. Appʹx\n\n13 727, 730 (2d Cir. 2016) (noting this confusion); Gray v. Maquat, 669 F. Appʹx 4, 5\n\n14 n.1 (2d Cir. 2016) (same). On the one hand, we have suggested that Olech and\n\n15 LeClair offer two distinct Equal Protection theories of non‐class‐based\n\n16 discrimination, with Olech claims focused on whether the defendant’s conduct\n\n17 was rationally related to a legitimate government policy and LeClair claims\n\n18 focused on whether the defendant’s conduct was motivated by malice towards\n\n\n\n 19\n\f 1 the plaintiff. See Bizzarro, 394 F.3d at 86 (presenting Olech and LeClair as “two\n\n 2 slightly different theories” of Equal Protection); Cobb v. Pozzi, 363 F.3d 89, 109 (2d\n\n 3 Cir. 2004) (calling them “two related, yet different, equal protection arguments”).\n\n 4 Periodically, however, we have raised the possibility that an Olech claim requires\n\n 5 proof of a defendant’s ill will towards the plaintiff, suggesting that Olech may\n\n 6 have displaced or merged with LeClair’s Equal Protection theory of malice‐based\n\n 7 discrimination. See Bizzarro, 394 F.3d at 88 (“We have not resolved whether, in\n\n 8 light of Olech, the theory espoused by LeClair remains the proper one in ‘class of\n\n 9 one’ claims.”); Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499–500 (2d Cir.\n\n10 2001) (declining to reach the question of whether the “Supreme Courtʹs decision\n\n11 in Olech modified the second part of the LeClair analysis by removing the\n\n12 requirement that malice or bad faith be shown in order to state a valid ‘class of\n\n13 one’ equal protection claim”); Giordano v. City of New York, 274 F.3d 740, 751 (2d\n\n14 Cir. 2001) (same). As noted above, Olech has also sparked questions about the\n\n15 degree of similarity required in a LeClair claim. See supra at 14. While some\n\n16 district courts have applied Neilson’s similarity standard for Olech claims to\n\n17 LeClair claims, others have concluded that a lower similarity standard should\n\n18 apply. See Mosdos Chofetz Chaim, 815 F. Supp. 2d at 693–97 (collecting cases).\n\n\n\n 20\n\f 1 Today, we seek to resolve some of this uncertainty and clarify the\n\n 2 relationship between LeClair and Olech. For the reasons that follow, we hold that\n\n 3 these two decisions offer distinct pathways for proving a non‐class‐based Equal\n\n 4 Protection violation. While both types of Equal Protection claims require a\n\n 5 showing that the plaintiff was treated differently from another similarly situated\n\n 6 comparator, they differ in at least two key respects. First, unlike a malice‐based\n\n 7 LeClair claim, an Olech claim does not require proof of a defendant’s subjective ill\n\n 8 will towards a plaintiff. Instead, a plaintiff can prevail on an Olech claim on the\n\n 9 basis of similarity alone. However, the similarity standard for an Olech claim is\n\n10 more stringent than the standard for a LeClair claim. While Olech requires an\n\n11 “extremely high” degree of similarity between a plaintiff and comparator, LeClair\n\n12 merely requires a “reasonably close resemblance” between a plaintiff’s and\n\n13 comparator’s circumstances.\n\n14 These holdings stem from both the Supreme Court’s decision in Olech and\n\n15 our own subsequent precedent. To begin, we read Olech as rejecting the\n\n16 contention that malice is a requirement of a class of one Equal Protection claim.\n\n17 The majority opinion recognized that the plaintiff’s complaint contained\n\n18 allegations that the Village’s conduct was “motivated by ill will resulting from\n\n\n\n 21\n\f 1 [her] previous filing of an unrelated, successful lawsuit against the Village.”\n\n 2 Olech, 528 U.S. at 563. It further acknowledged that the appellate court below\n\n 3 had ruled in favor of the plaintiff on the basis of these allegations of subjective ill\n\n 4 will. Id. at 563–64. Nevertheless, the Supreme Court expressly declined to adopt\n\n 5 the circuit court’s Equal Protection theory, see id. at 565, a theory that would have\n\n 6 “require[d] proof that the cause of the differential treatment of which the plaintiff\n\n 7 complains was a totally illegitimate animus toward the plaintiff by the\n\n 8 defendant,” Olech v. Vill. of Willowbrook, 160 F.3d 386, 388 (7th Cir. 1998). Instead,\n\n 9 the majority in Olech focused on the allegations that the Village’s demand for a\n\n10 33‐foot easement was “irrational and wholly arbitrary” given that the Village\n\n11 required only a 15‐foot easement from other similarly situated property owners.\n\n12 Olech, 528 U.S. at 565. It held that “[t]hese allegations, quite apart from the\n\n13 Village’s subjective motivation, are sufficient to state a claim for relief under\n\n14 traditional equal protection analysis.” Id. The Supreme Court therefore affirmed\n\n15 the appellate court’s judgment, without “reach[ing] the alternative theory of\n\n16 ‘subjective ill will’ relied on by that court.” Id. This choice is even more telling in\n\n17 light of Justice Breyer’s concurrence in the case. Echoing concerns raised by the\n\n18 circuit court, Justice Breyer warned against interpreting the Equal Protection\n\n\n\n 22\n\f 1 Clause in a way that would “transform[ ] run‐of‐the‐mill zoning cases into cases\n\n 2 of constitutional right,” and he justified his concurrence on the grounds that the\n\n 3 plaintiff’s allegations of “ill will” were “sufficient to minimize [this] concern[.]”\n\n 4 Id. at 566.\n\n 5 Our reading of Olech finds support in Second Circuit caselaw. See, e.g.,\n\n 6 Harlen, 273 F.3d at 499–500 (collecting cases that support this interpretation of\n\n 7 Olech). Indeed, it appears that Neilson developed this Circuit’s similarity\n\n 8 standard for an Olech claim based on the assumption that Olech did not require a\n\n 9 showing of malice. Specifically, Neilson derived its standard by comparing (1) a\n\n10 case where the plaintiff seeks to prevail on an Olech claim “based on similar\n\n11 circumstances alone,” with (2) a case where the plaintiff claims “discrimination\n\n12 based on membership in a specific protected class.” Neilson, 409 F.3d at 104–05\n\n13 (internal quotation marks omitted, emphasis added). We noted that, to succeed\n\n14 in the latter case, a plaintiff must prove both that he was treated differently from\n\n15 another similarly situated, and that the differential treatment was motivated by\n\n16 the plaintiff’s membership in a protected class. Id. at 105. In an Olech claim, by\n\n17 contrast, the existence of persons in similar circumstances is offered not only to\n\n18 show disparate treatment, but to also “provide an inference that the plaintiff was\n\n\n\n 23\n\f 1 intentionally singled out for reasons that so lack any reasonable nexus with a\n\n 2 legitimate governmental policy that an improper purpose – whether personal or\n\n 3 otherwise – is all but certain.” Id. Thus, we distinguished Olech from the typical,\n\n 4 class‐based Equal Protection claim on the grounds that, in an Olech claim, the\n\n 5 disparate treatment and impermissible motive inquiries are “virtually one and\n\n 6 the same.” Id. An Olech claim asserts that the distinction between the plaintiff’s\n\n 7 case and those similarly situated is so arbitrary and irrational that it fails to pass\n\n 8 even the “minimal” equal protection standard: that distinctions among the\n\n 9 objects of government action must be rationally related to a legitimate\n\n10 government objective. See Kotch v. Bd. Of River Port Pilot Comm’rs for Port of New\n\n11 Orleans, 330 U.S. 552, 564 (1947) (upholding a licensing scheme that disfavored\n\n12 persons not related to current river boat pilots based on possible efficiency and\n\n13 safety benefits of close ties among pilots).\n\n14 On the basis of this analytical difference, we concluded that Olech claims,\n\n15 which “rel[y] on similarity alone,” should be subjected to a more stringent\n\n16 similarity standard than class‐based discrimination claims. Neilson, 409 F.3d at\n\n17 106. To hold otherwise, we observed, would yield a “pervers[e]” outcome,\n\n18 namely: it would be easier for plaintiffs to plead an Olech claim than a race\n\n\n\n 24\n\f 1 discrimination case, “the core of equal protection[.]” Id. This is because, as noted\n\n 2 above, race discrimination claims require proof of both disparate treatment and\n\n 3 racial animus, while “[a] finding of general ‘similarity’ alone would do the trick\n\n 4 in the ‘class of one’ case.” Id.. Because we were unwilling to take the law of\n\n 5 Equal Protection down such a path, we set forth the “extremely high” similarity\n\n 6 standard that has come to govern Olech claims in this Circuit, requiring a plaintiff\n\n 7 to prove that “(i) no rational person could regard the circumstances of the\n\n 8 plaintiff to differ from those of a comparator to a degree that would justify the\n\n 9 differential treatment on the basis of a legitimate government policy; and (ii) the\n\n10 similarity in circumstances and difference in treatment are sufficient to exclude\n\n11 the possibility that the defendant acted on the basis of a mistake.” Id. at 104–05.\n\n12 Today’s opinion therefore validates the premise upon which this Circuit\n\n13 has constructed its standard for an Olech claim. Olech, unlike the malice‐based\n\n14 theory of Equal Protection under LeClair, does not require proof of a defendant’s\n\n15 subjective ill will towards the plaintiff. Instead, a plaintiff may prevail on an\n\n16 Olech claim based on prima facie identical circumstances alone. In reaching this\n\n17 conclusion, we are mindful of the concerns raised by Justice Breyer’s concurrence\n\n18 about transforming “run‐of‐the‐mill” enforcement actions into constitutional\n\n\n\n 25\n\f 1 causes of action. Olech, 528 U.S. at 566. We believe, however, that Neilson’s\n\n 2 exacting similarity standard limits the risk that Olech “will create a flood of\n\n 3 claims in that area of government action where discretion is high and variation is\n\n 4 common.” Del Marcelle v. Brown Cty. Corp., 680 F.3d 887, 915 (7th Cir. 2012)\n\n 5 (Wood, J., dissenting).\n\n 6 We would also note that Olech has been cabined in other ways. Most\n\n 7 notably, the Supreme Court in Engquist v. Oregon Department of Agriculture, 553\n\n 8 U.S. 591, 594 (2008), barred public employees from bringing Olech claims against\n\n 9 their government employers. The Court reasoned that some types of state action\n\n10 are so inherently discretionary that they are not suitable for an Olech cause of\n\n11 action. Id. at 603. In such situations, the Engquist Court explained, “allowing a\n\n12 challenge based on the arbitrary singling out of a particular person would\n\n13 undermine the very discretion that such state officials are entrusted to exercise.”\n\n14 Id. The Court found that “[t]his principle applies most clearly in the employment\n\n15 context, for employment decisions are quite often subjective and individualized,\n\n16 resting on a wide array of factors that are difficult to articulate and quantify.” Id.\n\n17 at 604. We have read Engquist as essentially “a jurisdiction‐limiting decision”\n\n18 and, while we have declined to extend Engquist’s bar to “all class‐of‐one claims\n\n\n\n 26\n\f 1 involving discretionary state action,” we have suggested that “there may be\n\n 2 some circumstances where Engquist is properly applied outside of the\n\n 3 employment context.” Analytical Diagnostic Labs, 626 F.3d at 140, 142. We have\n\n 4 noted, however, that Engquist’s limitation on “class of one” claims is more likely\n\n 5 to apply when the state acts as a proprietor rather than as a regulator, reasoning\n\n 6 that “[t]he government has significantly greater leeway in its dealings with\n\n 7 citizen employees than it does when it brings its sovereign power to bear on\n\n 8 citizens at large.” Id. at 142 (internal quotation marks omitted). Admittedly, we\n\n 9 have not found occasion to extend Engquist outside of the employment context.\n\n10 See id. at 142–43 (concluding that Engquist did not apply to a state system for\n\n11 issuing clinical testing laboratory permits); Fortress Bible Church v. Feiner, 694 F.3d\n\n12 208, 222 (2d Cir. 2012) (finding that Engquist did not apply to a town’s zoning\n\n13 decisions). Nevertheless, our caselaw suggests that Engquist protects against the\n\n14 concern that, notwithstanding Neilson’s strict similarity standard, Olech will flood\n\n15 the courts with Equal Protection cases involving highly discretionary\n\n16 government action.\n\n17 Having concluded that malice is not a requirement of an Olech claim, we\n\n18 now turn to the question of whether Olech and LeClair require the same degree of\n\n\n\n 27\n\f 1 similarity between a plaintiff and her proffered comparator. Neilson also\n\n 2 supplies the answer to this second question. As explained above, Neilson applied\n\n 3 a higher similarity standard to Olech claims than to claims for race discrimination\n\n 4 because plaintiffs pursuing the latter claims had the extra burden of proving that\n\n 5 their negative treatment was caused by an impermissible motive. See supra at 23–\n\n 6 24. That same logic, however, counsels in favor of applying a lower similarity\n\n 7 standard to LeClair claims than to Olech claims, because LeClair also requires\n\n 8 plaintiffs to not only demonstrate that they have been treated differently from\n\n 9 another similarly situated comparator but that “the selective treatment was\n\n10 motivated by an intention to discriminate on the basis of impermissible\n\n11 considerations, such as race or religion, to punish or inhibit the exercise of\n\n12 constitutional rights, or by a malicious or bad faith intent to injure the person.”\n\n13 Zahra, 48 F.3d at 683 (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir.\n\n14 1992).\n\n15 We therefore analyze the first element of a LeClair claim under the\n\n16 similarity standard that we articulated in Graham v. Long Island Rail Road, 230\n\n17 F.3d 34 (2d Cir. 2000), and that we have since used in a variety of contexts to\n\n18 determine whether a plaintiff’s disparate treatment “raise[s] an inference of\n\n\n\n 28\n\f 1 discrimination.” Id. at 39 (Title VII discrimination claim); see also Lizardo v.\n\n 2 Dennyʹs, Inc., 270 F.3d 94, 101 (2d Cir. 2001) (section 1981 discrimination claim);\n\n 3 Men of Color Helping All Soc., Inc. v. City of Buffalo, 529 F. Appʹx 20, 26 (2d Cir.\n\n 4 2013) (Equal Protection claim). To satisfy this standard, “the plaintiff’s and\n\n 5 comparator’s circumstances must bear a reasonably close resemblance.” Brown v.\n\n 6 Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (internal quotation marks\n\n 7 omitted). They need not, however, be “identical.” Id. A plaintiff can prevail by\n\n 8 showing that “she was similarly situated in all material respects to the\n\n 9 individuals with whom she seeks to compare herself.” Graham, 230 F.3d at 39\n\n10 (internal quotation marks omitted).\n\n11 With these standards in mind, we now address whether the District Court\n\n12 properly dismissed the plaintiffs’ Olech claim, malice‐based LeClair claim, and\n\n13 race‐based LeClair claim for failure to plausibly allege a similarly situated\n\n14 comparator.\n\n15 ii. Application\n\n16 The Amended Complaint identifies three specific comparators relating to\n\n17 the plaintiffs’ jobsites at (1) 139‐20 34th Avenue, Flushing New York (“the 34th\n\n18 Avenue Jobsite”); (2) 43‐05 162nd Street, Flushing New York (“the 43‐05\n\n19 Jobsite”); and (3) 542 West 22nd Street, New York (“the West 22nd Jobsite”). In\n 29\n\f 1 addition, the plaintiffs rely on statistics concerning Burkart’s enforcement\n\n 2 practices to show that they have been treated differently than similarly situated\n\n 3 non‐Asians. For the reasons discussed below, only the 34th Avenue Jobsite\n\n 4 plausibly satisfies the lower similarity standard of a LeClair claim – albeit, barely.\n\n 5 None of the proffered comparators, however, satisfy the more stringent\n\n 6 similarity requirements of an Olech claim. Thus, because Olech and LeClair both\n\n 7 require the plaintiffs to plausibly plead at least one similarly situated\n\n 8 comparator, we affirm the District Court’s dismissal of the plaintiffs’ Olech claim\n\n 9 but vacate as to their LeClair claims for race‐based and malice‐based\n\n10 discrimination.\n\n11 a. LeClair Claims\n\n12 The first proffered comparator concerns work conducted at the 34th\n\n13 Avenue Jobsite. Specifically, the plaintiffs allege that Burkart issued them a\n\n14 violation “for having a pool of water” on the 34th Avenue Jobsite. Hu Appx. at\n\n15 A37 ¶ 190. Later, Burkart returned to the location when white workers were\n\n16 performing work on the jobsite. Even though these white workers were also\n\n17 working next to a pool of water, Burkart did not issue them a notice of violation\n\n18 or otherwise interrupt their work. Instead, Burkart reserved “such negative\n\n19 treatment for Asian workers.” Id. at A39 ¶ 202.\n 30\n\f 1 The District Court concluded that these allegations were “suggestive” but\n\n 2 “not sufficient to show that any of the plaintiffs were similarly situated to these\n\n 3 white workers in all material respects.” See Hu Appellants’ Special Appendix\n\n 4 (“District Court Ruling”) (Doc. No. 42), Case No. 18‐737‐cv at SPA16. In arriving\n\n 5 at this outcome, the lower court faulted the plaintiffs for failing to allege\n\n 6 sufficient details about the circumstances surrounding the violation, “such as\n\n 7 how deep the standing water was, how long it had been sitting at the site, or\n\n 8 whether there were other violations at the job site.” Id.\n\n 9 To survive a motion to dismiss, however, the plaintiffs’ Amended\n\n10 Complaint “need not contain ‘detailed factual allegations[.]’” Matson v. Bd. of\n\n11 Educ. of City Sch. Dist. of New York, 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft\n\n12 v. Iqbal, 556 U.S. 662, 678 (2009)). While the plaintiffs must plead factual\n\n13 allegations that “raise a right to relief above the speculative level,” Bell Atl. Corp.\n\n14 v. Twombly, 550 U.S. 544, 555 (2007), Twombly and Iqbal “do not require heightened\n\n15 fact pleading of specifics, but only enough facts to state a claim to relief that is\n\n16 plausible on its face.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.\n\n17 2010). So long as a plaintiff pleads “factual content that allows the court to draw\n\n18 the reasonable inference that the defendant is liable for the misconduct alleged,”\n\n\n\n 31\n\f 1 Iqbal, 556 U.S. at 678, “a well‐pleaded complaint may proceed even if it strikes a\n\n 2 savvy judge that actual proof of those facts is improbable, and that a recovery is\n\n 3 very remote and unlikely,” Twombly, 550 U.S. at 556 (internal quotation marks\n\n 4 omitted).\n\n 5 The plaintiffs in this case have satisfied the standard of plausibility by\n\n 6 alleging differential treatment by the same defendant (Burkart) for the same\n\n 7 conduct (having a pool of standing water) at the same jobsite (the 34th Avenue\n\n 8 Jobsite). While these allegations are admittedly few in number, they nonetheless\n\n 9 allow us to plausibly infer “a reasonably close resemblance” between the\n\n10 plaintiffs and the white workers. Discovery in this case may ultimately confirm\n\n11 the District Court’s suspicions that water depth, the existence of other building\n\n12 code violations, the outstanding violation for the same condition, or any number\n\n13 of on‐site characteristics render the resemblance between the plaintiffs and the\n\n14 white workers less than “reasonably close.” Graham, 230 F.3d at 40. At this early\n\n15 stage in the litigation, however, the plaintiffs’ failure to plead such fact‐specific\n\n16 details should not bar their LeClair claims.\n\n17 We recognize, of course, that “[t]here is no precise formula to determine\n\n18 whether an individual is similarly situated to comparators.” McDonald v. Vill. of\n\n\n\n 32\n\f 1 Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004); Lindquist v. City of Pasadena Texas, 669\n\n 2 F.3d 225, 234 (5th Cir. 2012) (“[T]he inquiry is case‐specific and requires us to\n\n 3 consider the full variety of factors that an objectively reasonable decisionmaker\n\n 4 would have found relevant in making the challenged decision.”) (quoting Griffin\n\n 5 Indus., Inc. v. Irvin, 496 F.3d 1189, 1203 (11th Cir. 2007) (internal quotation marks\n\n 6 and alterations omitted)). The question of “whether parties are similarly situated\n\n 7 is [generally] a fact‐intensive inquiry” that depends heavily on the particular\n\n 8 context of the case at hand. Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.\n\n 9 2006); see also Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004)\n\n10 (“Inevitably, the degree to which others are viewed as similarly situated depends\n\n11 substantially on the facts and context of the case.”). However, it is precisely in\n\n12 light of the inquiry’s fact‐intensive nature that we have cautioned against\n\n13 deciding whether two comparators are similarly situated on a motion to dismiss.\n\n14 See Brown, 756 F.3d at 230 (“Ordinarily, whether two employees are similarly\n\n15 situated presents a question of fact, rather than a legal question to be resolved on\n\n16 a motion to dismiss.” (internal quotation marks and alterations omitted)); cf.\n\n17 Chapman v. New York State Div. for Youth, 546 F.3d 230, 238 (2d Cir. 2008)\n\n18 (“[M]arket definition is a deeply fact‐intensive inquiry and courts therefore\n\n\n\n 33\n\f 1 hesitate to grant motions to dismiss for failure to plead a relevant product\n\n 2 market . . . .” (internal quotation marks and alterations omitted)).\n\n 3 On appeal, the defendants raise four additional arguments in favor of\n\n 4 dismissal, none of which is availing. First, the defendants fault the Amended\n\n 5 Complaint for not expressly alleging that there were Asian workers at the 34th\n\n 6 Avenue Jobsite when Burkart issued the violation for the pool of water. While\n\n 7 the defendants are technically correct, other factual allegations in the Amended\n\n 8 Complaint provide a basis for reasonably inferring that Burkart issued the\n\n 9 violation when Asian workers were working on the site. For example, the\n\n10 Amended Complaint alleges that “Burkart issued a violation [to the plaintiffs],\n\n11 though, as discussed below, he did not issue one when non‐Asian workers were\n\n12 performing work in and around the same standing water.” Hu Appx. at A37 ¶\n\n13 192. The plaintiffs’ description of the white workers as “non‐Asian” supports the\n\n14 inference that the workers who were present when Burkart issued his violation\n\n15 were Asian. This inference is bolstered by the allegation that Burkart “reserved\n\n16 such negative treatment [i.e., the issuance of a violation] for Asian workers,” id. at\n\n17 A39 ¶ 202, which allegation in essence states that the violation was issued when\n\n18 the workers on the site with the pool of water were Asian. When these\n\n\n\n 34\n\f 1 allegations are combined with the fact that the plaintiffs are an Asian worker and\n\n 2 Asian‐owned companies, they create the plausible inference that Burkart issued a\n\n 3 violation for the pool of water when Asian workers were working at the 34th\n\n 4 Avenue Jobsite, but declined to issue a violation for the same pool of water when\n\n 5 white workers were working at the location.\n\n 6 Second, the defendants argue that the white workers cannot be similarly\n\n 7 situated to NY Drilling or 888 Consulting because individuals cannot be similarly\n\n 8 situated to corporate entities. However, they offer no explanation or caselaw in\n\n 9 support of this assertion, and it is not clear to us why corporate form is material\n\n10 to the similarly situated analysis in this case. According to the plaintiffs’ theory\n\n11 of discrimination, NY Drilling and 888 Consulting are being unfairly targeted\n\n12 because Burkart has identified them as “Asian” construction companies that\n\n13 work closely with Hu. Thus, from Burkart’s perspective, it is not the plaintiffs’\n\n14 corporate form that materially distinguishes them from other entities working in\n\n15 the construction industry. Instead, it is the fact that these corporate plaintiffs are\n\n16 owned and controlled by Asians and have close associations with Hu. Said\n\n17 another way, the defendants discriminate against NY Drilling and 888\n\n18 Consulting based on the identities of these companies’ employees and business\n\n\n\n 35\n\f 1 associates. Indeed, it can be reasonably inferred from the Amended Complaint\n\n 2 that the defendants use the presence of Asian workers to identify and target\n\n 3 jobsites that are being run by these plaintiffs. See Hu Appx. at A44 ¶ 249\n\n 4 (“Plaintiffs have been forced to put Caucasian people in positions whereby they\n\n 5 interact with inspectors, so as to facilitate lifting of [stop work orders] and\n\n 6 releasing of permits.”). Thus, because NY Drilling and 888 Consulting are being\n\n 7 adversely targeted based on the race and identities of their owners and workers,\n\n 8 they can prove their discrimination claim by showing that their Asian employees\n\n 9 have been treated differently from similarly situated non‐Asian workers.\n\n10 Third, the defendants fault the plaintiffs for not citing the specific\n\n11 provision of the building code that they and the white workers allegedly violated\n\n12 by having a pool of water at the 34th Avenue Jobsite. Although this is true, the\n\n13 plaintiffs do allege the precise conduct forming the basis of their alleged\n\n14 violation of the building code, i.e., performing construction work at a jobsite that\n\n15 has a pool of water. Drawing all inferences in favor of the plaintiffs, a reasonable\n\n16 juror could infer from the Amended Complaint that the white workers violated\n\n\n\n\n 36\n\f 1 the same building code provision that the plaintiffs allegedly did by engaging in\n\n 2 the same conduct at the same jobsite.4\n\n 3 Finally, the defendants argue that the 34th Avenue Jobsite cannot serve as\n\n 4 a comparator because NY Drilling was the general contractor on the site and\n\n 5 therefore responsible for any violation issued to that location, regardless of\n\n 6 whether the violation sanctioned the plaintiffs’ workers or the white workers.\n\n 7 The defendants speculate that, if Burkart was, in fact, targeting the plaintiffs, he\n\n 8 would have also sanctioned the white workers for the pool of water, presumably\n\n 9 knowing that such a sanctioning would ultimately hurt NY Drilling. This\n\n10 argument, however, assumes facts that are not found in the Amended\n\n11 Complaint. The plaintiffs do not allege that NY Drilling was the general\n\n12 contractor on the 34th Avenue Jobsite. Nor does the Amended Complaint allege\n\n13 that any violation issued at a jobsite is issued to the jobsite’s general contractor,\n\n14 as opposed to the jobsite’s subcontractors. Instead, the Amended Complaint\n\n\n\n 4 As support for their assertion that the plaintiffs must identify the specific Building Code\n provision that was violated by having a pool of water on the Jobsite, the defendants cite to the Fifth\n Circuit’s decision in Lindquist v. City of Pasadena Texas, 669 F.3d 225, 234 (5th Cir. 2012), which decision\n held that, in a case that “involves the application of an ordinance or statute, the plaintiff’s and\n comparators’ relationships with the ordinance at issue will generally be a relevant characteristic for\n purposes of the similarly‐situated analysis.” However, Lindquist was decided at the summary judgment\n stage, not on a motion to dismiss. Id. at 227. Here, at the pleading stage, it can reasonably be inferred\n from the factual allegations of the Amended Complaint that the white workers and the plaintiffs violated\n the same building code provision by engaging in the same conduct at the same jobsite.\n 37\n\f 1 merely alleges that the plaintiffs were issued a notice of violation for performing\n\n 2 work on a jobsite with a pool of water. To assume that NY Drilling was\n\n 3 responsible for all violations issued at the 34th Avenue Jobsite, including any\n\n 4 violation that could have been issued to the white workers, would be drawing\n\n 5 inferences against the plaintiffs.\n\n 6 Admittedly, the question of whether these factual allegations plausibly\n\n 7 support a LeClair claim is a close one. The plaintiffs have certainly not made it\n\n 8 easy for this court to conclude that they bear a reasonably close resemblance to\n\n 9 the white workers at the 34th Avenue Jobsite. Nevertheless, drawing all\n\n10 inferences in favor of the plaintiffs, and resolving all ambiguities against the\n\n11 defendants, we conclude that these allegations are sufficient to satisfy the\n\n12 “reasonably close resemblance” standard of similarity that governs the plaintiffs’\n\n13 race‐based and malice‐based LeClair claims.\n\n14 The plausibility of their claims is strengthened by the Amended\n\n15 Complaint’s allegations of racial bias against Asians and personal malice against\n\n16 Hu, including the allegations that, inter alia, Burkart made explicitly racist\n\n17 comments; had a racist motive to discriminate against Asians; statistically gave\n\n18 more violations to Asian construction sites than did his colleagues; bragged\n\n\n\n 38\n\f 1 about his plans to shut down Hu’s jobsites; called Hu “a rat” for reporting a\n\n 2 colleague to the FBI; hung a picture of Hu on his wall; and specifically searched\n\n 3 DOB’s databases for construction worksites that employed Hu. These allegations\n\n 4 satisfy the motive element of LeClair and help “nudge” the plaintiffs’ Equal\n\n 5 Protection claims “across the line from conceivable to plausible.” Iqbal, 556 U.S.\n\n 6 at 680 (quoting Twombly, 550 U.S. at 570). Accordingly, we vacate the District\n\n 7 Court’s dismissal of the plaintiffs’ LeClair selective enforcement claims of race‐\n\n 8 based and malice‐based discrimination.5\n\n 9 b. Olech Claim\n\n10 In contrast, none of the plaintiffs’ proffered comparators satisfy the more\n\n11 stringent similarity standard for an Olech claim.\n\n12 With regard to the 34th Avenue Jobsite, the plaintiffs’ factual allegations\n\n13 are too sparse to raise a reasonable inference that Burkart’s differential treatment\n\n14 of the plaintiffs and the white workers “lack[ed] any reasonable nexus with a\n\n\n\n 5 We have not decided whether the Supreme Court’s decision in Engquist to bar Olech claims in\n the employment context also applies to malice‐based LeClair claims. See Spanierman v. Hughes, 576 F.\n Supp. 2d 292, 307 (D. Conn. 2008) (noting this uncertainty). We need not, and do not, resolve this issue\n today. Assuming arguendo that Engquist does apply to malice‐based LeClair claims, it would not preclude\n the plaintiffs from raising this type of claim in the present suit. As in other cases where we have\n concluded that Engquist did not bar a class of one claim, this case involves (1) the state acting as a\n sovereign rather than a proprietor; and (2) the defendants operating within a regulatory framework (i.e.,\n the building code) that articulates clear standards of conduct, limits their discretion, and provides\n mechanisms for challenging and reviewing their determinations (i.e., an Article 78 proceeding). See\n Analytical Diagnostic Labs, 626 F.3d at 142; Fortress Bible Church, 694 F.3d at 222.\n 39\n\f 1 legitimate governmental policy.” Progressive Credit Union, 889 F.3d at 49 (quoting\n\n 2 Neilson, 409 F.3d at 105) (internal alterations omitted). The Amended Complaint\n\n 3 is silent as to a whole host of potential factors that could legitimately justify\n\n 4 Burkart’s behavior, including, inter alia, whether the white workers were\n\n 5 engaged in the same type of work as the plaintiffs, the length of time between\n\n 6 Burkart’s visits to the 34th Avenue Jobsite, and the identity of the white workers’\n\n 7 employer. While we are not suggesting that any one of these omissions is\n\n 8 dispositive, they are, together, fatal to the plaintiffs’ Olech claim. Absent the non‐\n\n 9 conclusory allegations that Burkart had a race‐based animus against Asians and\n\n10 a personal grudge against Hu, it could not reasonably be inferred that the two\n\n11 situations were so identical as to “exclude the possibility that [Burkart] acted on\n\n12 the basis of a mistake.” Id.\n\n13 The plaintiffs’ second proffered comparator fares no better. In particular,\n\n14 the plaintiffs allege that Burkart permitted Vera Construction, a non‐Asian\n\n15 company, to complete foundation work at the 43‐05 Jobsite, but then promptly\n\n16 shut down work at that location once 43 162 St. Management, an Asian company,\n\n17 became responsible for the construction site. The Amended Complaint,\n\n18 however, is devoid of facts suggesting that the plaintiffs worked at or were\n\n\n\n 40\n\f 1 otherwise involved with the 43‐05 Jobsite. Thus, notwithstanding the plaintiffs’\n\n 2 conclusory assertions that they are similarly situated to Vera Construction and its\n\n 3 owner, Burkart’s conduct at the 43‐05 Jobsite does not raise a plausible inference\n\n 4 that Burkart treated the plaintiffs differently from Vera Construction. Thus,\n\n 5 while this incident may tend to prove that Burkart was biased against Asians\n\n 6 generally, it does not show that the plaintiffs were adversely affected by that bias.\n\n 7 The 43‐05 Jobsite therefore provides no basis for reversing the District Court’s\n\n 8 dismissal of the plaintiffs’ Olech claim, as a comparator only satisfies the pleading\n\n 9 requirements of that claim if the comparator “received more favorable treatment\n\n10 than the plaintiff.” Neilson, 409 F.3d at 105.\n\n11 The plaintiffs’ third proffered comparator fails for the same reason. More\n\n12 specifically, the plaintiffs compare DOB’s lenient treatment of Westerman\n\n13 Construction Company (“Westerman”), a non‐Asian contractor who oversaw the\n\n14 West 22nd Jobsite, with DOB’s harsher treatment of certain unnamed “Asian\n\n15 construction professionals” who owned and operated a second jobsite located at\n\n16 20‐16 College Point Boulevard, College Point, New York (“the College Point\n\n17 Jobsite”). See Hu Appx. at A41 ¶ 221 – A43 ¶ 244. However, the plaintiffs do not\n\n18 allege that they worked at or were involved with the College Point Jobsite.\n\n\n\n 41\n\f 1 Accordingly, there are no factual allegations to suggest that the plaintiffs were\n\n 2 adversely affected by DOB’s differential treatment of the two construction sites.\n\n 3 If anything, it appears that the plaintiffs were on the benefiting end of DOB’s\n\n 4 selective enforcement, as NY Drilling allegedly worked as a subcontractor at the\n\n 5 West 22nd Jobsite.\n\n 6 Finally, we reject the plaintiffs’ contention that they can satisfy the\n\n 7 similarly situated standard based on a statistical showing that Burkart sanctioned\n\n 8 Asians at higher rates than his colleagues did. Our caselaw makes clear that\n\n 9 statistics cannot substitute for specific comparators in Olech or LeClair claims. See\n\n10 Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010)\n\n11 (dismissing an Olech claim for failure to “allege specific examples” of similarly\n\n12 situated comparators); Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1988) (“To\n\n13 support a claim of selective enforcement, appellants must allege purposeful and\n\n14 systematic discrimination by specifying instances in which they were singled out\n\n15 for unlawful oppression in contrast to others similarly situated.” (internal\n\n16 quotation marks and alterations omitted)). To prevail under either theory of\n\n17 Equal Protection, a plaintiff must specify at least one instance in which he was\n\n18 treated differently from another similarly situated. See Neilson, 409 F.3d at 105\n\n\n\n 42\n\f 1 (holding that a plaintiff must identify “a comparator” whose circumstances are\n\n 2 sufficiently similar). Thus, because none of the plaintiffs’ proffered comparators\n\n 3 satisfy the similarity standard for an Olech cause of action, we affirm the District\n\n 4 Court’s dismissal of that claim.\n\n 5 C. Section 1981 Claim\n\n 6 For the same reasons that we vacate the District Court’s dismissal of the\n\n 7 plaintiffs’ LeClair claims, we vacate its dismissal of the plaintiffs’ section 1981\n\n 8 claim for race‐based interference with the plaintiffs’ rights to make and enforce\n\n 9 contracts. As the District Court correctly noted, “plaintiffs must meet the same\n\n10 pleading standard for their § 1981 claims as for their § 1983 claims under the\n\n11 Equal Protection Clause.” Brown v. City of Oneonta, New York, 221 F.3d 329, 339\n\n12 (2d Cir. 2000). Thus, to prevail on a section 1981 claim, a plaintiff must allege at\n\n13 least one instance in which he was treated differently from a similarly situated\n\n14 non‐minority. Id. (citing Albert, 851 F.2d at 573). The section 1981 standard for\n\n15 determining whether a plaintiff and a comparator are similarly situated is\n\n16 identical to the similarity standard for a LeClair Equal Protection claim. Compare\n\n17 supra at 28–29, with Lizardo, 270 F.3d at 101 (section 1981 race discrimination\n\n18 claim).\n\n\n\n 43\n\f 1 Recognizing these parallels, the District Court dismissed the plaintiffs’\n\n 2 section 1981 claim for the same reason that it dismissed their Equal Protection\n\n 3 claims, namely, failure to plausibly allege differential treatment of a similarly\n\n 4 situated comparator. We now vacate, on that issue, having concluded that the\n\n 5 Amended Complaint does, in fact, state an Equal Protection claim under LeClair.6\n\n 6 D. Due Process Claim\n\n 7 The plaintiffs’ Due Process claim proceeds under two theories. First, they\n\n 8 argue that the defendants’ discriminatory enforcement practices have deprived\n\n 9 them of their right to pursue their occupation of choice, namely, construction\n\n10 work. Second, they rely on our decision in Chalfy v. Turoff, 804 F.2d 20 (2d Cir.\n\n11 1986), to assert a “pattern of harassment” claim, alleging that the defendants\n\n12 have engaged in systematic and intentional harassment with the objective of\n\n13 driving the plaintiffs out of business. See Appellants’ Brief (“Pls.’ Mem.”) (Doc.\n\n\n\n\n 6 We decline to consider whether the Amended Complaint plausibly alleges the other elements of\n a section 1981 claim, including whether the defendants’ conduct interfered with the making and\n enforcement of contracts. See Brown, 221 F.3d at 339 (“To establish a claim under 42 U.S.C. § 1981,\n plaintiffs must allege facts supporting the following elements: (1) plaintiffs are members of a racial\n minority; (2) defendantsʹ intent to discriminate on the basis of race; and (3) discrimination concerning one\n of the statuteʹs enumerated activities.”). Instead, the District Court should address these issues in the first\n instance if they arise on remand. See Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir. 2001) (“In\n general, a federal appellate court does not consider an issue not passed upon below.” (internal quotation\n marks omitted)).\n 44\n\f 1 No. 39), Case No. 18‐737, at 51–54. The District Court dismissed both claims, and\n\n 2 we now affirm.\n\n 3 As to the first theory, it is well established that “the liberty component of\n\n 4 the Fourteenth Amendmentʹs Due Process Clause includes some generalized due\n\n 5 process right to choose oneʹs field of private employment.” Conn v. Gabbert, 526\n\n 6 U.S. 286, 291–92 (1999). That right, however, is “subject to reasonable\n\n 7 government regulation.” Id. at 292. “[B]rief interruption[s]” of work do not give\n\n 8 rise to a Due Process claim. Id. Instead, the Supreme Court, this Circuit, and the\n\n 9 other Circuits addressing the issue have all indicated that the right of\n\n10 occupational choice is afforded Due Process protection only when a plaintiff is\n\n11 “complete[ly] prohibit[ed]” from engaging in his or her chosen profession. Id.\n\n12 (“These cases all deal with a complete prohibition of the right to engage in a\n\n13 calling, and not the sort of brief interruption which occurred here.”); United States\n\n14 v. Farhane, 634 F.3d 127, 137 (2d Cir. 2011) (reading Conn to imply that “due\n\n15 process is violated only by complete prohibition of the right to engage in a\n\n16 calling” (internal quotation marks omitted)); see also, e.g., Singleton v. Cecil, 176\n\n17 F.3d 419, 426 n.8 (8th Cir. 1999) (“The [Conn] Court then made clear that this\n\n18 right has been afforded substantive due process protection only when the\n\n\n\n 45\n\f 1 government completely prohibits, rather than briefly interrupts, a person from\n\n 2 engaging in his desired occupational field.” (internal quotation marks and\n\n 3 alterations omitted)); Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003) (“This\n\n 4 indirect and incidental burden on professional practice is far too removed from a\n\n 5 complete prohibition to support a due process claim.”).\n\n 6 In this case, the plaintiffs allege that the defendants’ enforcement actions\n\n 7 have cost them money, clients, and future business opportunities. However,\n\n 8 business losses alone do not implicate the Due Process right of occupational\n\n 9 choice. See JWJ Indus., Inc. v. Oswego Cty., 538 F. Appʹx 11, 14 (2d Cir. 2013) (“Due\n\n10 process has not been construed to preclude government actions that adversely\n\n11 affect a businessʹs profitability.”). To prevail on such a claim, a plaintiff must\n\n12 allege facts suggesting that a defendant’s conduct has “operate[d] as a complete\n\n13 prohibition on his ability to practice [his chosen profession].” Franceschi v. Yee,\n\n14 887 F.3d 927, 938 (9th Cir.), cert. denied, 139 S. Ct. 648 (2018). Nothing in the\n\n15 Amended Complaint plausibly suggests that the plaintiffs have been driven out\n\n16 of the construction business, or even that they are on the verge of shutting down.\n\n17 If anything, the Amended Complaint appears to anticipate the plaintiffs’\n\n18 continued operations in the construction industry. See Hu Appx. at A44 ¶ 256\n\n\n\n 46\n\f 1 (“Burkart and the Inspector Defendants are not only causing Hu to lose current\n\n 2 income streams, but are also damaging his reputation, which will lead to further\n\n 3 future losses.”).\n\n 4 Nor can the plaintiffs create a Due Process claim by alleging that it is\n\n 5 Burkart’s “objective” to put them out of business. See Pls.’ Mem. at 50. When\n\n 6 determining whether a burden amounts to a complete prohibition of the right to\n\n 7 engage in a calling, courts have focused on the effects of a defendant’s conduct,\n\n 8 not on the intentions underlying that conduct. See, e.g., Lowry, 329 F.3d at 1023\n\n 9 (discussing the degree to which the defendant’s conduct interfered with the\n\n10 plaintiffs’ professional practice); Grider v. Abramson, 180 F.3d 739, 752 n.17 (6th\n\n11 Cir. 1999) (same). The concept of “complete prohibition” will not stretch so far as\n\n12 to cover cases where, as here, the defendant’s mal‐intent is clear but the actual\n\n13 risk that the plaintiff will be excluded from her profession of choice is\n\n14 speculative. Thus, because the plaintiffs did not allege facts suggesting that the\n\n15 defendants have effectively prohibited them from engaging in construction\n\n16 work, we affirm the District Court’s dismissal of the plaintiffs’ Due Process claim\n\n17 for infringement of their right of occupational choice.\n\n\n\n\n 47\n\f 1 As to their second theory of Due Process, the plaintiffs rely on our decision\n\n 2 in Chalfy, in which we suggested that a plaintiff could make out a substantive\n\n 3 Due Process claim by showing that government officials engaged in systematic\n\n 4 and intentional harassment in an attempt to drive the plaintiff out of business.\n\n 5 See Chalfy, 804 F.2d at 22–23; see also Interport Pilots Agency, Inc. v. Sammis, 14 F.3d\n\n 6 133, 144 (2d Cir. 1994) (characterizing Chalfy as a theory of substantive Due\n\n 7 Process). While we have not revisited this “pattern of harassment” theory of Due\n\n 8 Process since deciding Chalfy, district courts in this Circuit have continued to\n\n 9 treat it as a viable cause of action. See, e.g., Bertuglia v. City of New York, 839 F.\n\n10 Supp. 2d 703, 719 (S.D.N.Y. 2012) (denying the defendants’ motion to dismiss as\n\n11 to some of the plaintiffs’ Chalfy claims).\n\n12 In this case, the District Court dismissed the plaintiffs’ Chalfy claim on the\n\n13 grounds that the enforcement actions described in the Amended Complaint did\n\n14 not rise to the level of systematic and intentional harassment. We affirm the\n\n15 dismissal on different grounds, concluding that the plaintiffs’ substantive Due\n\n16 Process claim is subsumed by their Equal Protection claim.\n\n17 In the years following our decision in Chalfy, the Supreme Court narrowed\n\n18 the scope of substantive Due Process to claims that are not covered by other\n\n\n\n 48\n\f 1 provisions of the Constitution. See Graham v. Connor, 490 U.S. 386, 394–95 (1989)\n\n 2 (holding that excessive force claims should be analyzed under the Fourth\n\n 3 Amendment, rather than under substantive Due Process); Albright v. Oliver, 510\n\n 4 U.S. 266, 273 (1994) (plurality) (limiting the scope of substantive Due Process to\n\n 5 claims that do not have “an explicit textual source of constitutional protection”);\n\n 6 Conn, 526 U.S. at 293 (same). It is now well established that, “[w]here another\n\n 7 provision of the Constitution provides an explicit textual source of constitutional\n\n 8 protection, a court must assess a plaintiffʹs claims under that explicit provision\n\n 9 and not the more generalized notion of substantive due process.” Southerland v.\n\n10 City of New York, 680 F.3d 127, 142–43 (2d Cir. 2012) (quoting Kia P. v. McIntyre,\n\n11 235 F.3d 749, 757–58 (2d Cir. 2000)). In this case, the plaintiffs’ Chalfy claim and\n\n12 Equal Protection claim both rest on the same set of factual allegations, namely:\n\n13 that Burkart and his colleagues selectively enforced the building code against the\n\n14 plaintiffs based on Burkart’s racial animus towards Asians and his personal\n\n15 animus towards Hu. As a result, the plaintiffs’ substantive Due Process\n\n16 allegations are subsumed by their more particular allegations of Equal Protection\n\n17 violations. See Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005) (holding that the\n\n18 plaintiff’s substantive due process claim was subsumed by the alleged First\n\n\n\n 49\n\f 1 Amendment and Equal Protection violations); Terminate Control Corp. v. Horowitz,\n\n 2 28 F.3d 1335, 1351 n.8 (2d Cir. 1994) (dismissing a plaintiff’s substantive Due\n\n 3 Process claim because it was duplicative of the plaintiff’s Equal Protection claim);\n\n 4 see also Wilson v. Birnberg, 667 F.3d 591, 599 (5th Cir. 2012) (disregarding the\n\n 5 plaintiff’s substantive due process claims because they were “rooted in\n\n 6 procedural due process, the Equal Protection Clause, and the First\n\n 7 Amendment”). We therefore affirm the District Court’s dismissal of the Chalfy\n\n 8 claim on different grounds, concluding that this claim must be analyzed under\n\n 9 the Equal Protection Clause.7\n\n10 E. Monell Claim\n\n11 We also affirm the dismissal of the plaintiffs’ Monell claim against the City,\n\n12 concluding, as the lower court did, that the plaintiffs have not plausibly alleged\n\n13 the existence of an official municipal policy.\n\n14 To bring a section 1983 lawsuit for municipal liability, “a plaintiff must\n\n15 prove that action pursuant to official municipal policy caused the alleged\n\n16 constitutional injury.” Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011)\n\n\n\n\n 7 In reaching this outcome, we do not mean to suggest that Chalfy is a dead letter. There may be\n situations in which a Chalfy claim is not covered by an explicit provision of the Constitution. However,\n on the factual allegations presented in this case, we conclude that the plaintiffs’ Chalfy claim for\n intentional and systematic government harassment is precluded by their Equal Protection claims.\n 50\n\f 1 (internal quotation marks omitted). This requirement follows from the principle\n\n 2 that, “under § 1983, local governments are responsible only for their own illegal\n\n 3 acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation marks\n\n 4 omitted). In other words, “a city cannot be held liable under § 1983 on a theory\n\n 5 of respondeat superior.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d\n\n 6 Cir. 2004). Instead, “a plaintiff must demonstrate that, through its deliberate\n\n 7 conduct, the municipality was the moving force behind the alleged injury.” Roe\n\n 8 v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (internal quotation marks\n\n 9 omitted).\n\n10 An official municipal policy can take a variety of forms. See, e.g., Cash, 654\n\n11 F.3d at 334 (“A municipal policy may be pronounced or tacit and reflected in\n\n12 either action or inaction.”). This case, however, only implicates two theories of\n\n13 municipal action, namely: (1) that a policymaking officer ratified the\n\n14 discriminatory enforcement practices of Burkart and his colleagues; and (2) that\n\n15 these unconstitutional practices were so widespread, persistent, and manifest as\n\n16 to imply constructive acquiescence on the part of the City.\n\n17 To prevail on the first theory, a plaintiff must allege facts suggesting that\n\n18 an officer with final policymaking authority ordered, ratified, or “was aware of a\n\n\n\n 51\n\f 1 subordinate’s unconstitutional actions, and consciously chose to ignore them,\n\n 2 effectively ratifying the actions.” Amnesty Am., 361 F.3d at 126. A plaintiff need\n\n 3 only identify one such decision to bring a Monell claim, for “even a single action\n\n 4 by a decisionmaker who possesses final authority to establish municipal policy\n\n 5 with respect to the action ordered may deprive the plaintiff of his or her\n\n 6 constitutional rights.” Montero v. City of Yonkers, New York, 890 F.3d 386, 403 (2d\n\n 7 Cir. 2018) (internal quotation marks and alterations omitted). The question of\n\n 8 whether an official “possessed final policymaking authority is a legal question,\n\n 9 which is to be answered on the basis of state law, . . . includ[ing] state and local\n\n10 positive law, as well as custom or usage having the force of law.” Jeffes v. Barnes,\n\n11 208 F.3d 49, 57 (2d Cir. 2000) (internal quotation marks, citations, and alterations\n\n12 omitted).\n\n13 As support for their ratification theory of municipal action, the plaintiffs\n\n14 point to Hu’s 2011 meeting with Burkart, an unnamed aide to a New York City\n\n15 Councilman, and Inspector Kaleid, the head of the Concrete Enforcement Unit\n\n16 (“CEU”) at the time. During this meeting, Inspector Kaleid allegedly dismissed\n\n17 Hu’s concerns about Burkart’s targeting of Asian construction workers and\n\n18 companies, stating that “[Burkart] is good for the City because he generates a lot\n\n\n\n 52\n\f 1 of revenue through his issuance of notices of violation.” Hu Appx. at A25 ¶ 83.\n\n 2 The plaintiffs contend that Inspector Kaleid’s response amounted to a\n\n 3 “ratification [that] gave license for DOB Inspectors to engage in such\n\n 4 misconduct[.]” Appellants’ Reply Brief (Doc. No. 76), Case No. 18‐737, at 23.\n\n 5 Nothing in the Amended Complaint, however, suggests that Inspector\n\n 6 Kaleid possessed final policymaking authority over Burkart’s enforcement\n\n 7 practices. The plaintiffs themselves appear to acknowledge in their Amended\n\n 8 Complaint that New York law vests DOB Commissioner Chandler, not Inspector\n\n 9 Kaleid, with final policymaking authority over DOB enforcement practices.\n\n10 There is no basis in the Amended Complaint for concluding that custom or usage\n\n11 imbued Inspector Kaleid with such authority. Nor is there a basis for attributing\n\n12 Inspector Kaleid’s dismissal of Hu’s grievances to Commissioner Chandler.\n\n13 Indeed, the Amended Complaint is devoid of factual allegations suggesting that\n\n14 Commissioner Chandler was personally involved in, or aware of, the 2011\n\n15 meeting, Burkart’s discriminatory enforcement practices, or any other\n\n16 unconstitutional actions taken by DOB’s subordinate officers.8 As a result, the\n\n\n 8The Amended Complaint also alleges in conclusory terms that the City and Chandler “were [ ]\n on notice” due to Hu’s complaint to the FBI regarding Dabusco. Hu Appx. at A60 ¶ 352. The plaintiffs\n do not press this argument on appeal, which, in any event, has no merit. It cannot be reasonably inferred\n that Hu’s FBI complaint, which alleged that Dabusco was engaging in extortion, put the City on notice\n\n\n 53\n\f 1 plaintiffs have not raised a plausible inference that their constitutional injuries\n\n 2 were caused by a City official with final policymaking authority.\n\n 3 The plaintiffs’ second theory of municipal action seeks to hold the City\n\n 4 liable based on constructive notice. While “isolated acts by non‐policymaking\n\n 5 municipal employees are generally not sufficient to demonstrate a municipal\n\n 6 custom, policy, or usage that would justify liability,” we have recognized that\n\n 7 “they can be the basis of liability if they . . . were sufficiently widespread and\n\n 8 persistent to support a finding that they constituted a custom, policy, or usage of\n\n 9 which supervisors must have been aware.” Matusick v. Erie Cty. Water Auth., 757\n\n10 F.3d 31, 62 (2d Cir. 2014) (internal quotation marks and alterations omitted). To\n\n11 prevail on such a theory of Monell liability, a plaintiff need not identify an\n\n12 express rule or regulation that embodies the alleged unconstitutional practice\n\n13 among subordinate municipal employees. Green v. City of New York, 465 F.3d 65,\n\n14 80 (2d Cir. 2006). However, the plaintiff must show that “the alleged practice\n\n15 [was] so manifest as to imply the constructive acquiescence of senior policy‐\n\n16 making officials.” Id. (internal quotation marks omitted).\n\n\n\n\n that other DOB officials were targeting the plaintiffs for unwarranted building code violations on the\n basis of race and personal animus.\n 54\n\f 1 The allegations of misconduct in this case do not rise to such a level. The\n\n 2 Amended Complaint only identifies four instances in which the plaintiffs were\n\n 3 alleged to have been unfairly sanctioned by DOB. Although the plaintiffs argue\n\n 4 that these specific enforcement actions are illustrative of a larger pattern of\n\n 5 unconstitutional targeting, they do not allege facts to suggest that this larger\n\n 6 pattern of targeting qualifies as widespread, persistent, or otherwise manifest\n\n 7 behavior.\n\n 8 Similarly, while the plaintiffs claim that Burkart enlisted the help of other\n\n 9 DOB employees to target and harass the plaintiffs, the Amended Complaint does\n\n10 not allege how many DOB employees were involved in the scheme, whether\n\n11 these accomplices represented a large or small share of DOB inspectors or\n\n12 personnel, the frequency with which these accomplices assisted in discriminatory\n\n13 enforcement practices, or any other facts that might indicate the extent to which\n\n14 DOB personnel helped Burkart carry out his alleged personal vendetta against\n\n15 Hu and other Asians in the construction industry. As a result, it is entirely\n\n16 unclear whether DOB’s targeting of the plaintiffs is the product of a few rogue\n\n17 officials, a department‐wide effort, or something in between.\n\n\n\n\n 55\n\f 1 Likewise, the allegations that Burkart made racist remarks do not raise a\n\n 2 plausible inference that senior policymaking officers should have known of the\n\n 3 discriminatory enforcement practices. While the Amended Complaint alleges\n\n 4 that Burkart has been overheard harassing Asian workers, calling Hu a rat, and\n\n 5 bragging about his plans to drive the plaintiffs out of business, it is silent as to\n\n 6 the number and identities of the listeners. As a result, there is no basis for\n\n 7 concluding that these remarks were made “with sufficient frequency or in such a\n\n 8 manner that the attitude would have been known to supervisory personnel.”\n\n 9 Jones v. Town of East Haven, 691 F.3d 72, 82 (2d Cir. 2012). Similarly, while\n\n10 Burkart’s dislike of Hu and Asians may have been an open secret among\n\n11 construction industry professionals, there are no factual allegations to suggest\n\n12 that Burkart communicated this attitude directly to senior policymaking officers\n\n13 or in a manner that should have made senior policymaking officers aware of his\n\n14 discriminatory animus.\n\n15 In short, the Amended Complaint provides no basis for concluding that\n\n16 the defendants’ discriminatory enforcement actions against the plaintiffs\n\n17 “represent[ed] the conscious choices of the municipality itself.” Amnesty Am.,\n\n18 361 F.3d at 126. While it can reasonably be inferred that the plaintiffs have been\n\n\n\n 56\n\f 1 the victims of persistent harassment by several subordinate officers at DOB, the\n\n 2 factual allegations do not “compel[ ] the conclusion that the local government\n\n 3 has acquiesced in or tacitly authorized its subordinates’ unlawful actions.”\n\n 4 Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). Accordingly, we affirm the\n\n 5 District Court’s dismissal of the plaintiffs’ Monell claim.9\n\n 6 F. Dismissal with Prejudice\n\n 7 Finally, the plaintiffs argue that, even if the District Court properly\n\n 8 dismissed their federal claims under Rule 12(b)(6), it erred by dismissing those\n\n 9 claims with prejudice. It is true that, in general, courts should “freely give leave”\n\n10 to amend pleadings “when justice so requires.” Fed. R. Civ. P. 15(a)(2).\n\n11 However, we have also held that “no court can be said to have erred in failing to\n\n12 grant a request that was not made.” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir.\n\n\n 9 The plaintiffs attempt to blame the defendants for any insufficiencies in their Monell claim,\n arguing that the defendants have not timely responded to the freedom of information requests that they\n made pursuant to New York law. We are not persuaded by this argument. As the alleged victims of the\n defendants’ discriminatory targeting, the plaintiffs presumably possessed information on the number and\n types of sanctions and violations that they have received over the years. Nevertheless, their Amended\n Complaint fails to describe, in even general terms, the overall volume and frequency of enforcement\n actions taken against the plaintiffs. Moreover, even if the plaintiffs did not personally keep records of\n this information, they conceded at oral argument that DOB posts building code violations on its website.\n Thus, the plaintiffs do not face the situation where the facts that they need to plead their Monell claim\n “are peculiarly within the possession and control of the defendant[.]” Citizens United v. Schneiderman, 882\n F.3d 374, 384 (2d Cir. 2018) (internal quotation marks omitted); see also Amnesty Am., 361 F.3d at 130 n.10\n (noting that, on a motion to dismiss a Monell claim for failure to train, a plaintiff is not required to\n “identify a specific deficiency in the [ ] training program or to establish a causal link between the lack of\n training and the misconduct [because] [i]t is unlikely that a plaintiff would have information about the\n city’s training programs or about the cause of the misconduct at the pleading stage[.]”).\n\n\n 57\n\f 1 2011); see also Horoshko v. Citibank, N.A., 373 F.3d 248, 249–50 (2d Cir. 2004)\n\n 2 (“[The] contention that the District Court abused its discretion in not permitting\n\n 3 an amendment that was never requested is frivolous.”). Because the plaintiffs in\n\n 4 this case never requested leave to amend their Amended Complaint, the District\n\n 5 Court did not err in declining to sua sponte grant leave to amend. We therefore\n\n 6 affirm the lower court’s decision to dismiss with prejudice the plaintiffs’ Olech\n\n 7 claim, Due Process claim, and Monell claim.10\n\n 8 G. State Claim\n\n 9 The District Court declined to exercise supplemental jurisdiction over the\n\n10 plaintiffs’ state tax claim on the grounds that it had dismissed all of their federal\n\n11 claims. Having reinstated the plaintiffs’ LeClair claims, we vacate the District\n\n12 Court’s decision to remand the state claim to state court. On remand, the District\n\n13 Court may reconsider whether to exercise supplemental jurisdiction in light of\n\n14 the new posture of the case.\n\n\n\n\n 10 On appeal, the plaintiffs also argue that the District Court erred by not permitting them to\n conduct jurisdictional discovery. This argument, however, is frivolous because the plaintiffs never made\n such a request to the District Court. Moreover, based on the plaintiffs’ description of the discovery that\n they seek to elicit from the defendants, it appears that the plaintiffs seek discovery on the merits of their\n claims, rather than on jurisdictional issues.\n 58\n\f1 V. CONCLUSION\n\n2 For the foregoing reasons, the judgment below is AFFIRMED in part\n\n3 insofar as the District Court dismissed the plaintiffs’ Olech claim, Due Process\n\n4 claim, and Monell claim. It is VACATED in part insofar as the District Court\n\n5 dismissed the plaintiffs’ section 1981 claim and their Equal Protection claims\n\n6 under LeClair for race‐based and malice‐based selective enforcement. We\n\n7 VACATE the District Court’s decision to decline to exercise supplemental\n\n8 jurisdiction over the plaintiffs’ state law claim, and we REMAND this case for\n\n9 further proceedings consistent with this opinion.\n\n\n\n\n 59\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Eric HU, NY Drilling, Inc., and 888 Consulting Corp., Plaintiffs-Appellants, v. the CITY OF NEW YORK, Dennis Burkart, Jose L. Espaillat, Michael Camera, Rafael Collis, Salvatore Concialdi, Robert Turner, Cesar Romero, Rick D. Chandler, Muhammad Imran, D. Eric Hoyt, Defendants-Appellees, John/Jane Does, Nos. 1-10, Defendants.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-06-13\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18‐737‐cv\\n Hu v. City of New York\\n\\n\\n 1 UNITED STATES COURT OF APPEALS\\n 2 FOR THE SECOND CIRCUIT\\n 3 _____________________\\n 4\\n 5 August Term 2018\\n 6\\n 7 (Argued: March 6, 2019 Decided: June 13, 2019)\\n 8\\n 9 Docket No. 18‐737‐cv\\n10 _____________________\\n11\\n12 ERIC HU, NY DRILLING, INC., AND 888 CONSULTING CORP.,\\n13 Plaintiffs‐Appellants,\\n14\\n15 v.\\n16\\n17 THE CITY OF NEW YORK, DENNIS BURKART, JOSE L. ESPAILLAT, MICHAEL CAMERA,\\n18 RAFAEL COLLIS, SALVATORE CONCIALDI, ROBERT TURNER, CESAR ROMERO, RICK D.\\n19 CHANDLER, MUHAMMAD IMRAN, D. ERIC HOYT,\\n20 Defendants‐Appellees,\\n21\\n22 JOHN/JANE DOES, NOS. 1‐10,\\n23 Defendants.*\\n24 _____________________\\n25\\n\\n26 Before:\\n\\n27 JACOBS and LYNCH, Circuit Judges, and J. HALL, District Judge.**\\n\\n28 The Plaintiffs‐Appellants, an Asian construction worker and Asian‐owned\\n29 companies, brought suit against the City of New York and several of its\\n\\n\\n * The Clerk of Court is directed to amend the caption as shown above.\\n\\n **Judge Janet C. Hall, United States District Court for the District of Connecticut, sitting by\\n designation.\\n\\f 1 employees, alleging that the defendants discriminatorily enforced municipal\\n 2 building codes against the plaintiffs on the basis of race and personal animus. The\\n 3 plaintiffs asserted Equal Protection claims under the theories articulated in Village\\n 4 of Willowbrook v. Olech, 528 U.S. 562 (2000) and LeClair v. Saunders, 627 F.2d 606 (2d\\n 5 Cir. 1980). They also raised claims under the Due Process Clause, section 1981 of\\n 6 title 42 of the United States Code, the Monell doctrine, and New York tax law. The\\n 7 United States District Court for the Eastern District of New York (Allyne Ross,\\n 8 Judge) dismissed the suit under Federal Rule of Civil Procedure 12(b)(6). We\\n 9 AFFIRM the District Court’s dismissal of the plaintiffs’ Olech claim, Due Process\\n10 claim, and Monell claim. However, we VACATE the judgment as to the plaintiffs’\\n11 section 1981 claim and LeClair claims, as well as their state law claim.\\n12 _____________________\\n13\\n14 DANIEL J. SCHNEIDER, Farber Schneider Ferrari LLP, New York, NY,\\n15 for Plaintiffs‐Appellants.\\n16\\n17 ANTONELLA KARLIN, Assistant Corporation Counsel (Richard\\n18 Dearing and\\n19 Kathy Chang Park, on the brief), for Zachary W. Carter, Corporation\\n20 Counsel of the City of New York, New York, NY, for Defendants‐\\n21 Appellees.\\n22 _____________________\\n23\\n24 J. HALL, District Judge:\\n\\n25 Plaintiffs Eric Hu (“Hu”), 888 Consulting Corporation (“888 Consulting”),\\n\\n26 and NY Drilling (“NY Drilling”) are an Asian construction worker and Asian‐\\n\\n27 owned companies.1 They brought this lawsuit against the City of New York\\n\\n\\n\\n\\n 1This appeal was heard in tandem with Hsin v. City of New York, Case No. 18‐751‐cv, a related but\\n not consolidated action. We resolve Hsin in a separate Summary Order.\\n 2\\n\\f 1 (“the City”), Assistant Chief Inspector Dennis Burkart (“Burkart”), and several of\\n\\n 2 Burkart’s colleagues at the Department of Buildings (“DOB”), alleging that the\\n\\n 3 defendants selectively enforced the City’s building codes on the basis of racial\\n\\n 4 animus against Asians and personal animus against Hu. The plaintiffs raised\\n\\n 5 claims under the Equal Protection Clause, the Due Process Clause, section 1981\\n\\n 6 of title 42 of the United States Code, the Monell doctrine, and New York tax law.\\n\\n 7 The United States District Court for the Eastern District of New York\\n\\n 8 (Ross, J.) dismissed the plaintiffs’ federal causes of action under Federal Rule of\\n\\n 9 Civil Procedure 12(b)(6) and declined to exercise supplemental jurisdiction over\\n\\n10 the remaining state claim. The plaintiffs now appeal, arguing that the District\\n\\n11 Court improperly applied a heightened pleading standard to their Amended\\n\\n12 Complaint. For the reasons that follow, we AFFIRM in part and VACATE in part\\n\\n13 the judgment below.\\n\\n14 I. BACKGROUND\\n\\n15 The Amended Complaint alleges the following facts, which we take as true\\n\\n16 for the purposes of evaluating a motion to dismiss.\\n\\n17 This action centers primarily on Burkart’s “personal vendetta” against\\n\\n18 Asians in general and Hu in particular. Burkart’s racial animus stems from his\\n\\n19 belief that Asians were responsible for the downfall of a construction company\\n 3\\n\\f 1 that he owned prior to his employment at DOB. In particular, Burkart blames\\n\\n 2 Asians for undercutting his rates to the point where he could no longer compete.\\n\\n 3 Burkart’s alleged animus against Hu, a Taiwanese‐American construction\\n\\n 4 worker, has several sources. In 2011, Hu filed a complaint with DOB alleging\\n\\n 5 that Burkart’s enforcement of the building code was racially discriminatory.\\n\\n 6 Later that year, Hu sued one of Burkart’s colleagues at DOB for hitting Hu with a\\n\\n 7 car. Although Burkart was only a passenger in the vehicle and was not named as\\n\\n 8 a defendant in the lawsuit, the plaintiffs believe that DOB may have disciplined\\n\\n 9 Burkart for his involvement in the car accident. In 2014, Hu filed an FBI report\\n\\n10 alleging extortion by another of Burkart’s colleagues, Massimo Dabusco\\n\\n11 (“Dabusco”). As a result of the ensuing FBI investigation, Dabusco left DOB,\\n\\n12 pled guilty to criminal charges, and was sentenced to 18 months’ imprisonment.\\n\\n13 See Judgment (Doc. No. 47), United States v. Massimo Dabusco, EDNY Docket No.\\n\\n14 16‐CR‐559‐DLI.\\n\\n15 Burkart has not been shy in voicing his feelings about Asians and Hu.\\n\\n16 While inspecting construction worksites, Burkhart has been observed harassing,\\n\\n17 belittling, and threatening Asian workers. He has been overheard calling Hu “a\\n\\n18 rat” for reporting Dabusco to the FBI, as well as bragging about his plans to\\n\\n\\n\\n 4\\n\\f 1 “shut down every one of Hu’s jobsites around the city.” Hu Appellants’\\n\\n 2 Appendix (“Hu Appx.”) (Doc. No. 40), Case No. 18‐737‐cv, at A24 ¶ 75, A27 ¶ 96.\\n\\n 3 According to other DOB inspectors, Burkart even has a picture of Hu on his wall.\\n\\n 4 It is an open secret within the City’s construction community that a jobsite that\\n\\n 5 involves Hu will be shut down by DOB inspectors.\\n\\n 6 NY Drilling and 888 Consulting have also become targets of Burkart’s\\n\\n 7 animosity, due both to their racial composition and to their close ties to Hu. NY\\n\\n 8 Drilling is a construction company that employed Hu until 2015, when Hu\\n\\n 9 formed his own construction company, 888 Consulting. Both NY Drilling and\\n\\n10 888 Consulting are owned and controlled by Asians, and they frequently work\\n\\n11 with each other on construction jobs.\\n\\n12 Burkart has acted on his prejudices by targeting the plaintiffs’ worksites\\n\\n13 for inspections and unwarranted building code violations. Although DOB\\n\\n14 inspectors are assigned predetermined routes, Burkart regularly deviates from\\n\\n15 his routes to visit, inspect, and issue violations to construction sites that are\\n\\n16 managed and operated by Asian workers and Asian‐owned companies. He\\n\\n17 often does so on his own time and while off duty. Further, he conducts these site\\n\\n18 visits on his own initiative and not in response to public complaints, even though\\n\\n\\n\\n 5\\n\\f 1 DOB is a complaint‐driven agency that takes enforcement actions primarily in\\n\\n 2 response to grievances received from the general public. During these visits,\\n\\n 3 Burkart issues violations and stop work orders, often for aspects of construction\\n\\n 4 that fall outside the purview of his division within DOB, the Concrete\\n\\n 5 Enforcement Unit. Burkart also appears to issue violations to Asian‐run\\n\\n 6 construction sites at a higher rate than his colleagues. According to the plaintiffs’\\n\\n 7 review of building code violations, Burkart issues 63 percent of his violations to\\n\\n 8 Asian‐run construction companies, workers, or sites, as compared to between 8\\n\\n 9 and 28 percent for other DOB inspectors.\\n\\n10 While Burkart is the only defendant alleged to harbor animus against Hu\\n\\n11 or Asians, Burkart has enlisted the help of other DOB officers in harassing the\\n\\n12 plaintiffs. Burkart or members of his team actively search DOB databases to\\n\\n13 identify construction worksites that employ Hu. When Burkart becomes aware\\n\\n14 of a job involving Hu, 888 Consulting, or NY Drilling, Burkart makes sure that he\\n\\n15 or a member of his team visits that jobsite. Burkart also sends other DOB\\n\\n16 inspectors outside of their assigned routes to issue violations to Asian developers\\n\\n17 and contractors. Sometimes, Burkart visits a construction site, takes pictures, and\\n\\n18 then leaves without taking any enforcement action. Shortly thereafter, however,\\n\\n\\n\\n 6\\n\\f 1 another DOB inspector will return to that site and issue a violation for the\\n\\n 2 conditions observed by Burkart. The plaintiffs believe that Burkart directs other\\n\\n 3 DOB inspectors to issue violations in order to “avoid the optic of having an\\n\\n 4 enormous number of violations and SWO[s] [stop work orders] signed in\\n\\n 5 Burkart’s name which are for alleged violations beyond the scope of his own\\n\\n 6 duties [and] outside his route and region[.]” Hu Appx. at A34 ¶ 166.\\n\\n 7 The Amended Complaint details four enforcement actions. Although the\\n\\n 8 specifics vary, they generally involve Burkart, by himself or in coordination with\\n\\n 9 other DOB officers, sanctioning the plaintiffs based on fabricated or frivolous\\n\\n10 building code violations; orchestrating time‐consuming audits of the plaintiffs’\\n\\n11 jobsites; forcing the plaintiffs to install unnecessary onsite protections, such as\\n\\n12 additional fencing; or halting the plaintiffs’ projects with stop work orders.\\n\\n13 These and other enforcement actions are taking a financial toll on the\\n\\n14 plaintiffs. Burkart’s violations have burdened the plaintiffs with fines,\\n\\n15 compliance costs, and legal fees. Clients are firing the plaintiffs due to jobsite\\n\\n16 delays resulting from DOB audits and stop work orders, and some are suing the\\n\\n17 plaintiffs for breaches of contract. The plaintiffs are also losing prospective\\n\\n\\n\\n\\n 7\\n\\f 1 business, because of Hu’s reputation as a lightning rod for DOB inspections and\\n\\n 2 sanctions.\\n\\n 3 II. PROCEDURAL HISTORY\\n\\n 4 The plaintiffs brought this lawsuit in April 2017. See generally Complaint\\n\\n 5 (Doc. No. 1), EDNY Docket No. 17‐cv‐2348. At a pre‐motion conference, the\\n\\n 6 District Court permitted the plaintiffs to amend their pleadings to address\\n\\n 7 deficiencies the Court had identified. See generally Transcript for Telephonic\\n\\n 8 Conference (“Pre‐Motion Conf. Tr.”) (Doc. No. 43‐8), EDNY Docket No. 17‐cv‐\\n\\n 9 2348. The plaintiffs filed an Amended Complaint, and the defendants moved to\\n\\n10 dismiss shortly thereafter. In March 2018, the District Court granted the Motion\\n\\n11 to Dismiss with prejudice, and this appeal followed.\\n\\n12 III. STANDARD OF REVIEW\\n\\n13 We review de novo a district court’s dismissal of a complaint under Rule\\n\\n14 12(b)(6). Carpenters Pension Tr. Fund of St. Louis v. Barclays PLC, 750 F.3d 227, 232\\n\\n15 (2d Cir. 2014). For the purposes of such a review, “this Court must accept as true\\n\\n16 all allegations in the complaint and draw all reasonable inferences in favor of the\\n\\n17 non‐moving party.” Matson v. Bd. of Educ. of City Sch. Dist. of New York, 631 F.3d\\n\\n18 57, 63 (2d Cir. 2011) (internal quotation marks omitted). Nevertheless, the\\n\\n19 plaintiff’s complaint must “contain sufficient factual matter, accepted as true, to\\n\\n 8\\n\\f 1 state a claim to relief that is plausible on its face.” Id. “A claim is facially\\n\\n 2 plausible when the plaintiff pleads factual content that allows the court to draw\\n\\n 3 the reasonable inference that the defendant is liable for the misconduct alleged.”\\n\\n 4 Progressive Credit Union v. City of New York, 889 F.3d 40, 48 (2d Cir. 2018) (internal\\n\\n 5 quotation marks omitted). In deciding a Rule 12(b)(6) motion, the court may\\n\\n 6 consider “only the facts alleged in the pleadings, documents attached as exhibits\\n\\n 7 or incorporated by reference in the pleadings[,] and matters of which judicial\\n\\n 8 notice may be taken.” Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir.\\n\\n 9 1993).\\n\\n10 IV. DISCUSSION\\n\\n11 In the Amended Complaint, the plaintiffs assert (1) Equal Protection claims\\n\\n12 for discriminatory enforcement of the building code; (2) a section 1981 claim for\\n\\n13 interfering on the basis of race with the right to make and enforce contracts; (3)\\n\\n14 Due Process claims for depriving them of their chosen occupation and for\\n\\n15 engaging in a systematic campaign of government harassment; (4) a Monell claim\\n\\n16 against the City; and (5) a state law taxpayer claim for violation of section 51 of\\n\\n17 the New York General Municipal Law.\\n\\n18 The District Court dismissed the federal claims with prejudice and\\n\\n19 declined to exercise supplemental jurisdiction over the remaining state claim. As\\n 9\\n\\f 1 to the Equal Protection and section 1981 claims, the District Court concluded that\\n\\n 2 the plaintiffs had not plausibly alleged that they had been treated differently\\n\\n 3 from another similarly situated comparator. It dismissed the plaintiffs’ Due\\n\\n 4 Process claims on the grounds that the Amended Complaint did not plausibly\\n\\n 5 allege either (1) that the defendants’ actions had entirely precluded the plaintiffs\\n\\n 6 from working in the construction industry, or (2) that the defendants’ actions\\n\\n 7 rose to the level of intentional and systematic government harassment. Finally,\\n\\n 8 the District Court dismissed the plaintiffs’ Monell claim for, inter alia, failure to\\n\\n 9 plausibly allege that the plaintiffs’ constitutional injuries were caused by an\\n\\n10 official municipal policy.\\n\\n11 On appeal, the plaintiffs argue that District Court improperly applied a\\n\\n12 heightened pleading standard to their federal claims. They further argue that,\\n\\n13 even if dismissal of these claims was warranted, the District Court erred by\\n\\n14 dismissing the Amended Complaint with prejudice. We address these\\n\\n15 arguments below. Before doing so, however, we first respond to the defendants’\\n\\n16 contention that two of the plaintiffs – Hu and 888 Consulting – lack standing\\n\\n17 because they have not plausibly pled an injury‐in‐fact, an issue that was not\\n\\n18 addressed by the court below.\\n\\n\\n\\n 10\\n\\f 1 A. Standing\\n\\n 2 Because “[a]ppellate courts have an independent obligation to examine\\n\\n 3 their own jurisdiction,” In re TPG Troy, LLC, 793 F.3d 228, 232 (2d Cir. 2015)\\n\\n 4 (internal quotation marks omitted), we must always address questions of\\n\\n 5 standing, even when neither the parties nor the court below have considered the\\n\\n 6 issue, see FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230–31 (1990). To satisfy the\\n\\n 7 requirements of Article III standing, plaintiffs must demonstrate “(1) [an] injury‐\\n\\n 8 in‐fact, which is a concrete and particularized harm to a legally protected\\n\\n 9 interest; (2) causation in the form of a fairly traceable connection between the\\n\\n10 asserted injury‐in‐fact and the alleged actions of the defendant; and\\n\\n11 (3) redressability, or a non‐speculative likelihood that the injury can be remedied\\n\\n12 by the requested relief.” Selevan v. New York Thruway Auth., 711 F.3d 253, 257 (2d\\n\\n13 Cir. 2013) (internal quotation marks omitted). These elements “are not mere\\n\\n14 pleading requirements but rather an indispensable part of the plaintiff’s case[.]”\\n\\n15 Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). As a result, “each element must\\n\\n16 be supported in the same way as any other matter on which the plaintiff bears\\n\\n17 the burden of proof, i.e., with the manner and degree of evidence required at the\\n\\n18 successive stages of the litigation.” Id. Thus, “general factual allegations of\\n\\n19 injury resulting from the defendant’s conduct may suffice” at the pleading stage,\\n 11\\n\\f 1 because it is presumed on a motion to dismiss that “general allegations embrace\\n\\n 2 those specific facts that are necessary to support the claim.” Id. (internal\\n\\n 3 quotation marks and alterations omitted); see also John v. Whole Foods Mkt. Grp.,\\n\\n 4 Inc., 858 F.3d 732, 736–37 (2d Cir. 2017) (applying Lujan’s standard).\\n\\n 5 Notwithstanding the defendants’ claims to the contrary, the Amended\\n\\n 6 Complaint plausibly alleges injuries to Hu and 888 Consulting that are fairly\\n\\n 7 traceable to the defendants’ alleged actions. The plaintiffs’ allegations detail how\\n\\n 8 Burkart and his colleagues have increased the plaintiffs’ costs of doing business\\n\\n 9 by conducting audits, forcing the plaintiffs to pay fines for unwarranted\\n\\n10 violations, and halting work on the plaintiffs’ jobsites with stop work orders. As\\n\\n11 a result of this targeting, the plaintiffs have not only lost current clients and\\n\\n12 future business, but they have also incurred legal fees challenging notices of\\n\\n13 violation and defending against breach‐of‐contract suits from dissatisfied clients.\\n\\n14 The Amended Complaint supplements these general allegations of harm with\\n\\n15 specific instances where the defendants’ enforcement activities financially\\n\\n16 burdened the plaintiffs. To take one example, Burkart allegedly “forced\\n\\n17 Plaintiffs, at significant cost, to install protection on neighbors’ walls” at one of\\n\\n18 their construction sites, which enforcement actions ultimately resulted in the\\n\\n\\n\\n 12\\n\\f 1 plaintiffs being fired from the job. Hu Appx. at A38 ¶¶ 193–196.2 Taken\\n\\n 2 together, these allegations are more than sufficient to establish Hu and 888\\n\\n 3 Consulting’s standing at the pleading stage. We therefore turn to the merits of\\n\\n 4 the plaintiffs’ claims.\\n\\n 5 B. Equal Protection Claims\\n\\n 6 The Amended Complaint can be reasonably construed as alleging three\\n\\n 7 types of Equal Protection claims for discrimination based on the selective\\n\\n 8 enforcement of the City’s building codes. The first two – which proceed under\\n\\n 9 the theory of LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980) – allege that the\\n\\n10 defendants treated the plaintiffs differently from others similarly situated on the\\n\\n11 basis of racial animus against Asians and personal animus against Hu. The third\\n\\n12 claim adopts the theory of Village of Willowbrook v. Olech, 528 U.S. 562 (2000),\\n\\n13 alleging that the defendants’ differential treatment of the plaintiffs violated the\\n\\n14 Equal Protection Clause because it was irrational and wholly arbitrary.\\n\\n\\n\\n\\n 2 The Amended Complaint does not expressly allocate harms between the three plaintiffs,\\n alleging instead that the various injuries accrued to the “plaintiffs.” See, e.g., Hu Appx. at A44. It does,\\n however, explicitly define the “plaintiffs” to include Hu, 888 Consulting, and NY Drilling. Id. at A12.\\n Thus, a natural reading of the Amended Complaint is that the alleged injuries are shared by all three\\n plaintiffs, an inference that is buttressed by the fact that the plaintiffs have a close working relationship\\n with one another.\\n 13\\n\\f 1 The District Court dismissed these claims on the grounds that the\\n\\n 2 Amended Complaint failed to plausibly allege a comparator that was similarly\\n\\n 3 situated to the plaintiffs. In reaching this outcome, it correctly noted that there is\\n\\n 4 disagreement among district courts in this Circuit as to the degree of similarity\\n\\n 5 required in a LeClair claim. See Leon v. Rockland Psychiatric Ctr., 232 F. Supp. 3d\\n\\n 6 420, 432 (S.D.N.Y. 2017) (documenting this split). Some district courts have\\n\\n 7 applied the similarity standard for an Olech cause of action to LeClair claims,\\n\\n 8 requiring that plaintiffs show an “extremely high” level of similarity between\\n\\n 9 themselves and the persons to whom they compare themselves. See, e.g.,\\n\\n10 Kamholtz v. Yates Cty., No. 08‐CV‐6210, 2008 WL 5114964, at *5 (W.D.N.Y. Dec. 3,\\n\\n11 2008), affʹd, 350 F. Appʹx 589 (2d Cir. 2009); Spanierman v. Hughes, 576 F. Supp. 2d\\n\\n12 292, 307 (D. Conn. 2008); Dones v. City of New York, No. 07 CIV. 3085 (SAS), 2008\\n\\n13 WL 2742108, at *9 (S.D.N.Y. July 9, 2008). Others have applied a less stringent\\n\\n14 standard to LeClair claims, requiring only that plaintiffs show that they are\\n\\n15 “roughly equivalent” to the proffered comparators. See, e.g., Mosdos Chofetz\\n\\n16 Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 696–97 (S.D.N.Y. 2011); T.S.\\n\\n17 Haulers, Inc. v. Town of Riverhead, 190 F. Supp. 2d 455, 462–63 (E.D.N.Y. 2002). In\\n\\n18 this case, the District Court adopted the latter approach. It concluded, however,\\n\\n\\n\\n 14\\n\\f 1 that the Amended Complaint failed to allege a comparator that was even\\n\\n 2 roughly equivalent to the plaintiffs.\\n\\n 3 On appeal, neither party disputes that the plaintiffs’ LeClair claims should\\n\\n 4 be subjected to a less stringent similarity standard than their Olech claim. This\\n\\n 5 apparent agreement, however, does not control our judgment, as we are not\\n\\n 6 bound by stipulations of law. See Neilson v. DʹAngelis, 409 F.3d 100, 104 n.2 (2d\\n\\n 7 Cir. 2005), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir.\\n\\n 8 2008). Because we conclude that the viability of the plaintiffs’ Equal Protection\\n\\n 9 claims turns on the precise degree of similarity required by LeClair, we write to\\n\\n10 resolve this open question and, more generally, to clarify the relationship\\n\\n11 between LeClair and Olech. For the reasons that follow, we agree with the court\\n\\n12 below that a lower similarity standard applies to the plaintiffs’ LeClair claims.\\n\\n13 Unlike the District Court, however, we conclude that the Amended Complaint\\n\\n14 satisfies this less stringent standard, albeit just barely, by alleging facts that\\n\\n15 plausibly show a reasonably close resemblance between the plaintiffs and a\\n\\n16 comparator who received more favorable treatment from the defendants. We\\n\\n17 therefore affirm the District Court’s dismissal of the plaintiffs’ Olech claim but\\n\\n18 vacate as to the LeClair claims.\\n\\n\\n\\n 15\\n\\f 1 i. Legal Framework\\n\\n 2 We first articulated a theory of Equal Protection based on the selective\\n\\n 3 enforcement of the law in LeClair v. Saunders, a case decided nearly four decades\\n\\n 4 ago. 627 F.2d 606, 609–10 (2d Cir. 1980). To prevail on such a claim, a plaintiff\\n\\n 5 must prove that “(1) the person, compared with others similarly situated, was\\n\\n 6 selectively treated, and (2) the selective treatment was motivated by an intention\\n\\n 7 to discriminate on the basis of impermissible considerations, such as race or\\n\\n 8 religion, to punish or inhibit the exercise of constitutional rights, or by a\\n\\n 9 malicious or bad faith intent to injure the person.” Zahra v. Town of Southold, 48\\n\\n10 F.3d 674, 683 (2d Cir. 1995) (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d\\n\\n11 Cir. 1992)). As this test makes clear, “[t]he LeClair type of equal protection claim\\n\\n12 requires proof of disparate treatment and impermissible motivation.” Bizzarro v.\\n\\n13 Miranda, 394 F.3d 82, 87 (2d Cir. 2005). A plaintiff cannot merely rest on “a\\n\\n14 demonstration of different treatment from persons similarly situated[.]” Id.\\n\\n15 (quoting Crowley v. Courville, 76 F.3d 47, 53 (2d Cir. 1996)) (internal quotation\\n\\n16 marks and alterations omitted). Instead, he must “prove that the disparate\\n\\n17 treatment was caused by the impermissible motivation.” Id.. As evident from\\n\\n18 LeClair’s broad definition of “impermissible considerations,” LeClair protects\\n\\n19 against both discrimination on the basis of a plaintiff’s protected status (e.g., race\\n 16\\n\\f 1 or a constitutionally‐protected activity) and discrimination on the basis of a\\n\\n 2 defendant’s personal malice or ill will towards a plaintiff. However, we have\\n\\n 3 cautioned that the latter type of LeClair claim, unlike the former, is “lodged in a\\n\\n 4 murky corner of equal protection law in which there are surprisingly few cases\\n\\n 5 and no clearly delineated rules to apply.” Id. at 86 (quoting LeClair, 627 F.2d at\\n\\n 6 608).\\n\\n 7 In Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), the\\n\\n 8 Supreme Court ventured into that murky corner and articulated what has\\n\\n 9 become known as the “class of one” theory of Equal Protection. The plaintiff in\\n\\n10 that case sought to connect her property to a municipal water supply. Id. at 563.\\n\\n11 When the Village of Willowbrook conditioned its approval on the plaintiff\\n\\n12 granting it a 33‐foot easement, the plaintiff brought suit on the grounds that the\\n\\n13 Village only required a 15‐foot easement from other property owners seeking\\n\\n14 similar water access. Id. Although the plaintiff did “not allege membership in a\\n\\n15 class or group,” the Supreme Court held that she could nonetheless state an\\n\\n16 Equal Protection claim by alleging “[1] that she has been intentionally treated\\n\\n17 differently from others similarly situated and [2] that there is no rational basis for\\n\\n18 the difference in treatment.” Id. at 564. As the Olech Court explained, this cause\\n\\n\\n\\n 17\\n\\f 1 of action arises out of the Equal Protection Clause’s “purpose . . . to secure every\\n\\n 2 person within the State’s jurisdiction against intentional and arbitrary\\n\\n 3 discrimination.” Id. The Court did not reach the alternative theory that the\\n\\n 4 Village harbored subjective ill will towards the plaintiff. Further, Olech declined\\n\\n 5 to specify the degree of similarity required between a plaintiff and her\\n\\n 6 comparator.\\n\\n 7 In Neilson v. DʹAngelis, 409 F.3d 100 (2d Cir. 2005), we addressed that\\n\\n 8 omission and set forth the Second Circuit’s similarity standard for an Olech cause\\n\\n 9 of action.3 See, e.g., Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d\\n\\n10 Cir. 2010) (relying on Neilson’s articulation of the elements of an Olech claim);\\n\\n11 Progressive Credit Union v. City of New York, 889 F.3d 40, 49 (2d Cir. 2018) (same).\\n\\n12 We held that, “[i]n order to succeed on a ‘class of one’ claim, the level of\\n\\n13 similarity between plaintiffs and the persons with whom they compare\\n\\n14 themselves must be extremely high.” Neilson, 409 F.3d at 104. More precisely, a\\n\\n15 plaintiff must establish that he and a comparator are “prima facie identical” by\\n\\n16 showing that “(i) no rational person could regard the circumstances of the\\n\\n\\n\\n 3 Although we later overruled Neilson insofar as it allowed public employees to assert Olech\\n claims against their government employers, see Appel v. Spiridon, 531 F.3d 138, 139 (2d Cir. 2008), we left\\n intact Neilson’s articulation of the elements of an Olech claim, see Analytical Diagnostic Labs, Inc. v. Kusel,\\n 626 F.3d 135, 140 n.1 (2d Cir. 2010).\\n 18\\n\\f 1 plaintiff to differ from those of a comparator to a degree that would justify the\\n\\n 2 differential treatment on the basis of a legitimate government policy; and (ii) the\\n\\n 3 similarity in circumstances and difference in treatment are sufficient to exclude\\n\\n 4 the possibility that the defendant acted on the basis of a mistake.” Id. at 105. We\\n\\n 5 explained that the existence of highly similar circumstances provides the basis\\n\\n 6 for “infer[ring] that the plaintiff was intentionally singled out for reasons that so\\n\\n 7 lack any reasonable nexus with a legitimate governmental policy that an\\n\\n 8 improper purpose – whether personal or otherwise – is all but certain.” Id.\\n\\n 9 While we have made efforts to clarify the contours of an Olech claim, we\\n\\n10 have paid less attention to the interaction between Olech and LeClair. The precise\\n\\n11 relationship between these doctrines, however, has become a source of some\\n\\n12 confusion in the Circuit. See 33 Seminary LLC v. City of Binghamton, 670 F. Appʹx\\n\\n13 727, 730 (2d Cir. 2016) (noting this confusion); Gray v. Maquat, 669 F. Appʹx 4, 5\\n\\n14 n.1 (2d Cir. 2016) (same). On the one hand, we have suggested that Olech and\\n\\n15 LeClair offer two distinct Equal Protection theories of non‐class‐based\\n\\n16 discrimination, with Olech claims focused on whether the defendant’s conduct\\n\\n17 was rationally related to a legitimate government policy and LeClair claims\\n\\n18 focused on whether the defendant’s conduct was motivated by malice towards\\n\\n\\n\\n 19\\n\\f 1 the plaintiff. See Bizzarro, 394 F.3d at 86 (presenting Olech and LeClair as “two\\n\\n 2 slightly different theories” of Equal Protection); Cobb v. Pozzi, 363 F.3d 89, 109 (2d\\n\\n 3 Cir. 2004) (calling them “two related, yet different, equal protection arguments”).\\n\\n 4 Periodically, however, we have raised the possibility that an Olech claim requires\\n\\n 5 proof of a defendant’s ill will towards the plaintiff, suggesting that Olech may\\n\\n 6 have displaced or merged with LeClair’s Equal Protection theory of malice‐based\\n\\n 7 discrimination. See Bizzarro, 394 F.3d at 88 (“We have not resolved whether, in\\n\\n 8 light of Olech, the theory espoused by LeClair remains the proper one in ‘class of\\n\\n 9 one’ claims.”); Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499–500 (2d Cir.\\n\\n10 2001) (declining to reach the question of whether the “Supreme Courtʹs decision\\n\\n11 in Olech modified the second part of the LeClair analysis by removing the\\n\\n12 requirement that malice or bad faith be shown in order to state a valid ‘class of\\n\\n13 one’ equal protection claim”); Giordano v. City of New York, 274 F.3d 740, 751 (2d\\n\\n14 Cir. 2001) (same). As noted above, Olech has also sparked questions about the\\n\\n15 degree of similarity required in a LeClair claim. See supra at 14. While some\\n\\n16 district courts have applied Neilson’s similarity standard for Olech claims to\\n\\n17 LeClair claims, others have concluded that a lower similarity standard should\\n\\n18 apply. See Mosdos Chofetz Chaim, 815 F. Supp. 2d at 693–97 (collecting cases).\\n\\n\\n\\n 20\\n\\f 1 Today, we seek to resolve some of this uncertainty and clarify the\\n\\n 2 relationship between LeClair and Olech. For the reasons that follow, we hold that\\n\\n 3 these two decisions offer distinct pathways for proving a non‐class‐based Equal\\n\\n 4 Protection violation. While both types of Equal Protection claims require a\\n\\n 5 showing that the plaintiff was treated differently from another similarly situated\\n\\n 6 comparator, they differ in at least two key respects. First, unlike a malice‐based\\n\\n 7 LeClair claim, an Olech claim does not require proof of a defendant’s subjective ill\\n\\n 8 will towards a plaintiff. Instead, a plaintiff can prevail on an Olech claim on the\\n\\n 9 basis of similarity alone. However, the similarity standard for an Olech claim is\\n\\n10 more stringent than the standard for a LeClair claim. While Olech requires an\\n\\n11 “extremely high” degree of similarity between a plaintiff and comparator, LeClair\\n\\n12 merely requires a “reasonably close resemblance” between a plaintiff’s and\\n\\n13 comparator’s circumstances.\\n\\n14 These holdings stem from both the Supreme Court’s decision in Olech and\\n\\n15 our own subsequent precedent. To begin, we read Olech as rejecting the\\n\\n16 contention that malice is a requirement of a class of one Equal Protection claim.\\n\\n17 The majority opinion recognized that the plaintiff’s complaint contained\\n\\n18 allegations that the Village’s conduct was “motivated by ill will resulting from\\n\\n\\n\\n 21\\n\\f 1 [her] previous filing of an unrelated, successful lawsuit against the Village.”\\n\\n 2 Olech, 528 U.S. at 563. It further acknowledged that the appellate court below\\n\\n 3 had ruled in favor of the plaintiff on the basis of these allegations of subjective ill\\n\\n 4 will. Id. at 563–64. Nevertheless, the Supreme Court expressly declined to adopt\\n\\n 5 the circuit court’s Equal Protection theory, see id. at 565, a theory that would have\\n\\n 6 “require[d] proof that the cause of the differential treatment of which the plaintiff\\n\\n 7 complains was a totally illegitimate animus toward the plaintiff by the\\n\\n 8 defendant,” Olech v. Vill. of Willowbrook, 160 F.3d 386, 388 (7th Cir. 1998). Instead,\\n\\n 9 the majority in Olech focused on the allegations that the Village’s demand for a\\n\\n10 33‐foot easement was “irrational and wholly arbitrary” given that the Village\\n\\n11 required only a 15‐foot easement from other similarly situated property owners.\\n\\n12 Olech, 528 U.S. at 565. It held that “[t]hese allegations, quite apart from the\\n\\n13 Village’s subjective motivation, are sufficient to state a claim for relief under\\n\\n14 traditional equal protection analysis.” Id. The Supreme Court therefore affirmed\\n\\n15 the appellate court’s judgment, without “reach[ing] the alternative theory of\\n\\n16 ‘subjective ill will’ relied on by that court.” Id. This choice is even more telling in\\n\\n17 light of Justice Breyer’s concurrence in the case. Echoing concerns raised by the\\n\\n18 circuit court, Justice Breyer warned against interpreting the Equal Protection\\n\\n\\n\\n 22\\n\\f 1 Clause in a way that would “transform[ ] run‐of‐the‐mill zoning cases into cases\\n\\n 2 of constitutional right,” and he justified his concurrence on the grounds that the\\n\\n 3 plaintiff’s allegations of “ill will” were “sufficient to minimize [this] concern[.]”\\n\\n 4 Id. at 566.\\n\\n 5 Our reading of Olech finds support in Second Circuit caselaw. See, e.g.,\\n\\n 6 Harlen, 273 F.3d at 499–500 (collecting cases that support this interpretation of\\n\\n 7 Olech). Indeed, it appears that Neilson developed this Circuit’s similarity\\n\\n 8 standard for an Olech claim based on the assumption that Olech did not require a\\n\\n 9 showing of malice. Specifically, Neilson derived its standard by comparing (1) a\\n\\n10 case where the plaintiff seeks to prevail on an Olech claim “based on similar\\n\\n11 circumstances alone,” with (2) a case where the plaintiff claims “discrimination\\n\\n12 based on membership in a specific protected class.” Neilson, 409 F.3d at 104–05\\n\\n13 (internal quotation marks omitted, emphasis added). We noted that, to succeed\\n\\n14 in the latter case, a plaintiff must prove both that he was treated differently from\\n\\n15 another similarly situated, and that the differential treatment was motivated by\\n\\n16 the plaintiff’s membership in a protected class. Id. at 105. In an Olech claim, by\\n\\n17 contrast, the existence of persons in similar circumstances is offered not only to\\n\\n18 show disparate treatment, but to also “provide an inference that the plaintiff was\\n\\n\\n\\n 23\\n\\f 1 intentionally singled out for reasons that so lack any reasonable nexus with a\\n\\n 2 legitimate governmental policy that an improper purpose – whether personal or\\n\\n 3 otherwise – is all but certain.” Id. Thus, we distinguished Olech from the typical,\\n\\n 4 class‐based Equal Protection claim on the grounds that, in an Olech claim, the\\n\\n 5 disparate treatment and impermissible motive inquiries are “virtually one and\\n\\n 6 the same.” Id. An Olech claim asserts that the distinction between the plaintiff’s\\n\\n 7 case and those similarly situated is so arbitrary and irrational that it fails to pass\\n\\n 8 even the “minimal” equal protection standard: that distinctions among the\\n\\n 9 objects of government action must be rationally related to a legitimate\\n\\n10 government objective. See Kotch v. Bd. Of River Port Pilot Comm’rs for Port of New\\n\\n11 Orleans, 330 U.S. 552, 564 (1947) (upholding a licensing scheme that disfavored\\n\\n12 persons not related to current river boat pilots based on possible efficiency and\\n\\n13 safety benefits of close ties among pilots).\\n\\n14 On the basis of this analytical difference, we concluded that Olech claims,\\n\\n15 which “rel[y] on similarity alone,” should be subjected to a more stringent\\n\\n16 similarity standard than class‐based discrimination claims. Neilson, 409 F.3d at\\n\\n17 106. To hold otherwise, we observed, would yield a “pervers[e]” outcome,\\n\\n18 namely: it would be easier for plaintiffs to plead an Olech claim than a race\\n\\n\\n\\n 24\\n\\f 1 discrimination case, “the core of equal protection[.]” Id. This is because, as noted\\n\\n 2 above, race discrimination claims require proof of both disparate treatment and\\n\\n 3 racial animus, while “[a] finding of general ‘similarity’ alone would do the trick\\n\\n 4 in the ‘class of one’ case.” Id.. Because we were unwilling to take the law of\\n\\n 5 Equal Protection down such a path, we set forth the “extremely high” similarity\\n\\n 6 standard that has come to govern Olech claims in this Circuit, requiring a plaintiff\\n\\n 7 to prove that “(i) no rational person could regard the circumstances of the\\n\\n 8 plaintiff to differ from those of a comparator to a degree that would justify the\\n\\n 9 differential treatment on the basis of a legitimate government policy; and (ii) the\\n\\n10 similarity in circumstances and difference in treatment are sufficient to exclude\\n\\n11 the possibility that the defendant acted on the basis of a mistake.” Id. at 104–05.\\n\\n12 Today’s opinion therefore validates the premise upon which this Circuit\\n\\n13 has constructed its standard for an Olech claim. Olech, unlike the malice‐based\\n\\n14 theory of Equal Protection under LeClair, does not require proof of a defendant’s\\n\\n15 subjective ill will towards the plaintiff. Instead, a plaintiff may prevail on an\\n\\n16 Olech claim based on prima facie identical circumstances alone. In reaching this\\n\\n17 conclusion, we are mindful of the concerns raised by Justice Breyer’s concurrence\\n\\n18 about transforming “run‐of‐the‐mill” enforcement actions into constitutional\\n\\n\\n\\n 25\\n\\f 1 causes of action. Olech, 528 U.S. at 566. We believe, however, that Neilson’s\\n\\n 2 exacting similarity standard limits the risk that Olech “will create a flood of\\n\\n 3 claims in that area of government action where discretion is high and variation is\\n\\n 4 common.” Del Marcelle v. Brown Cty. Corp., 680 F.3d 887, 915 (7th Cir. 2012)\\n\\n 5 (Wood, J., dissenting).\\n\\n 6 We would also note that Olech has been cabined in other ways. Most\\n\\n 7 notably, the Supreme Court in Engquist v. Oregon Department of Agriculture, 553\\n\\n 8 U.S. 591, 594 (2008), barred public employees from bringing Olech claims against\\n\\n 9 their government employers. The Court reasoned that some types of state action\\n\\n10 are so inherently discretionary that they are not suitable for an Olech cause of\\n\\n11 action. Id. at 603. In such situations, the Engquist Court explained, “allowing a\\n\\n12 challenge based on the arbitrary singling out of a particular person would\\n\\n13 undermine the very discretion that such state officials are entrusted to exercise.”\\n\\n14 Id. The Court found that “[t]his principle applies most clearly in the employment\\n\\n15 context, for employment decisions are quite often subjective and individualized,\\n\\n16 resting on a wide array of factors that are difficult to articulate and quantify.” Id.\\n\\n17 at 604. We have read Engquist as essentially “a jurisdiction‐limiting decision”\\n\\n18 and, while we have declined to extend Engquist’s bar to “all class‐of‐one claims\\n\\n\\n\\n 26\\n\\f 1 involving discretionary state action,” we have suggested that “there may be\\n\\n 2 some circumstances where Engquist is properly applied outside of the\\n\\n 3 employment context.” Analytical Diagnostic Labs, 626 F.3d at 140, 142. We have\\n\\n 4 noted, however, that Engquist’s limitation on “class of one” claims is more likely\\n\\n 5 to apply when the state acts as a proprietor rather than as a regulator, reasoning\\n\\n 6 that “[t]he government has significantly greater leeway in its dealings with\\n\\n 7 citizen employees than it does when it brings its sovereign power to bear on\\n\\n 8 citizens at large.” Id. at 142 (internal quotation marks omitted). Admittedly, we\\n\\n 9 have not found occasion to extend Engquist outside of the employment context.\\n\\n10 See id. at 142–43 (concluding that Engquist did not apply to a state system for\\n\\n11 issuing clinical testing laboratory permits); Fortress Bible Church v. Feiner, 694 F.3d\\n\\n12 208, 222 (2d Cir. 2012) (finding that Engquist did not apply to a town’s zoning\\n\\n13 decisions). Nevertheless, our caselaw suggests that Engquist protects against the\\n\\n14 concern that, notwithstanding Neilson’s strict similarity standard, Olech will flood\\n\\n15 the courts with Equal Protection cases involving highly discretionary\\n\\n16 government action.\\n\\n17 Having concluded that malice is not a requirement of an Olech claim, we\\n\\n18 now turn to the question of whether Olech and LeClair require the same degree of\\n\\n\\n\\n 27\\n\\f 1 similarity between a plaintiff and her proffered comparator. Neilson also\\n\\n 2 supplies the answer to this second question. As explained above, Neilson applied\\n\\n 3 a higher similarity standard to Olech claims than to claims for race discrimination\\n\\n 4 because plaintiffs pursuing the latter claims had the extra burden of proving that\\n\\n 5 their negative treatment was caused by an impermissible motive. See supra at 23–\\n\\n 6 24. That same logic, however, counsels in favor of applying a lower similarity\\n\\n 7 standard to LeClair claims than to Olech claims, because LeClair also requires\\n\\n 8 plaintiffs to not only demonstrate that they have been treated differently from\\n\\n 9 another similarly situated comparator but that “the selective treatment was\\n\\n10 motivated by an intention to discriminate on the basis of impermissible\\n\\n11 considerations, such as race or religion, to punish or inhibit the exercise of\\n\\n12 constitutional rights, or by a malicious or bad faith intent to injure the person.”\\n\\n13 Zahra, 48 F.3d at 683 (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir.\\n\\n14 1992).\\n\\n15 We therefore analyze the first element of a LeClair claim under the\\n\\n16 similarity standard that we articulated in Graham v. Long Island Rail Road, 230\\n\\n17 F.3d 34 (2d Cir. 2000), and that we have since used in a variety of contexts to\\n\\n18 determine whether a plaintiff’s disparate treatment “raise[s] an inference of\\n\\n\\n\\n 28\\n\\f 1 discrimination.” Id. at 39 (Title VII discrimination claim); see also Lizardo v.\\n\\n 2 Dennyʹs, Inc., 270 F.3d 94, 101 (2d Cir. 2001) (section 1981 discrimination claim);\\n\\n 3 Men of Color Helping All Soc., Inc. v. City of Buffalo, 529 F. Appʹx 20, 26 (2d Cir.\\n\\n 4 2013) (Equal Protection claim). To satisfy this standard, “the plaintiff’s and\\n\\n 5 comparator’s circumstances must bear a reasonably close resemblance.” Brown v.\\n\\n 6 Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (internal quotation marks\\n\\n 7 omitted). They need not, however, be “identical.” Id. A plaintiff can prevail by\\n\\n 8 showing that “she was similarly situated in all material respects to the\\n\\n 9 individuals with whom she seeks to compare herself.” Graham, 230 F.3d at 39\\n\\n10 (internal quotation marks omitted).\\n\\n11 With these standards in mind, we now address whether the District Court\\n\\n12 properly dismissed the plaintiffs’ Olech claim, malice‐based LeClair claim, and\\n\\n13 race‐based LeClair claim for failure to plausibly allege a similarly situated\\n\\n14 comparator.\\n\\n15 ii. Application\\n\\n16 The Amended Complaint identifies three specific comparators relating to\\n\\n17 the plaintiffs’ jobsites at (1) 139‐20 34th Avenue, Flushing New York (“the 34th\\n\\n18 Avenue Jobsite”); (2) 43‐05 162nd Street, Flushing New York (“the 43‐05\\n\\n19 Jobsite”); and (3) 542 West 22nd Street, New York (“the West 22nd Jobsite”). In\\n 29\\n\\f 1 addition, the plaintiffs rely on statistics concerning Burkart’s enforcement\\n\\n 2 practices to show that they have been treated differently than similarly situated\\n\\n 3 non‐Asians. For the reasons discussed below, only the 34th Avenue Jobsite\\n\\n 4 plausibly satisfies the lower similarity standard of a LeClair claim – albeit, barely.\\n\\n 5 None of the proffered comparators, however, satisfy the more stringent\\n\\n 6 similarity requirements of an Olech claim. Thus, because Olech and LeClair both\\n\\n 7 require the plaintiffs to plausibly plead at least one similarly situated\\n\\n 8 comparator, we affirm the District Court’s dismissal of the plaintiffs’ Olech claim\\n\\n 9 but vacate as to their LeClair claims for race‐based and malice‐based\\n\\n10 discrimination.\\n\\n11 a. LeClair Claims\\n\\n12 The first proffered comparator concerns work conducted at the 34th\\n\\n13 Avenue Jobsite. Specifically, the plaintiffs allege that Burkart issued them a\\n\\n14 violation “for having a pool of water” on the 34th Avenue Jobsite. Hu Appx. at\\n\\n15 A37 ¶ 190. Later, Burkart returned to the location when white workers were\\n\\n16 performing work on the jobsite. Even though these white workers were also\\n\\n17 working next to a pool of water, Burkart did not issue them a notice of violation\\n\\n18 or otherwise interrupt their work. Instead, Burkart reserved “such negative\\n\\n19 treatment for Asian workers.” Id. at A39 ¶ 202.\\n 30\\n\\f 1 The District Court concluded that these allegations were “suggestive” but\\n\\n 2 “not sufficient to show that any of the plaintiffs were similarly situated to these\\n\\n 3 white workers in all material respects.” See Hu Appellants’ Special Appendix\\n\\n 4 (“District Court Ruling”) (Doc. No. 42), Case No. 18‐737‐cv at SPA16. In arriving\\n\\n 5 at this outcome, the lower court faulted the plaintiffs for failing to allege\\n\\n 6 sufficient details about the circumstances surrounding the violation, “such as\\n\\n 7 how deep the standing water was, how long it had been sitting at the site, or\\n\\n 8 whether there were other violations at the job site.” Id.\\n\\n 9 To survive a motion to dismiss, however, the plaintiffs’ Amended\\n\\n10 Complaint “need not contain ‘detailed factual allegations[.]’” Matson v. Bd. of\\n\\n11 Educ. of City Sch. Dist. of New York, 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft\\n\\n12 v. Iqbal, 556 U.S. 662, 678 (2009)). While the plaintiffs must plead factual\\n\\n13 allegations that “raise a right to relief above the speculative level,” Bell Atl. Corp.\\n\\n14 v. Twombly, 550 U.S. 544, 555 (2007), Twombly and Iqbal “do not require heightened\\n\\n15 fact pleading of specifics, but only enough facts to state a claim to relief that is\\n\\n16 plausible on its face.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.\\n\\n17 2010). So long as a plaintiff pleads “factual content that allows the court to draw\\n\\n18 the reasonable inference that the defendant is liable for the misconduct alleged,”\\n\\n\\n\\n 31\\n\\f 1 Iqbal, 556 U.S. at 678, “a well‐pleaded complaint may proceed even if it strikes a\\n\\n 2 savvy judge that actual proof of those facts is improbable, and that a recovery is\\n\\n 3 very remote and unlikely,” Twombly, 550 U.S. at 556 (internal quotation marks\\n\\n 4 omitted).\\n\\n 5 The plaintiffs in this case have satisfied the standard of plausibility by\\n\\n 6 alleging differential treatment by the same defendant (Burkart) for the same\\n\\n 7 conduct (having a pool of standing water) at the same jobsite (the 34th Avenue\\n\\n 8 Jobsite). While these allegations are admittedly few in number, they nonetheless\\n\\n 9 allow us to plausibly infer “a reasonably close resemblance” between the\\n\\n10 plaintiffs and the white workers. Discovery in this case may ultimately confirm\\n\\n11 the District Court’s suspicions that water depth, the existence of other building\\n\\n12 code violations, the outstanding violation for the same condition, or any number\\n\\n13 of on‐site characteristics render the resemblance between the plaintiffs and the\\n\\n14 white workers less than “reasonably close.” Graham, 230 F.3d at 40. At this early\\n\\n15 stage in the litigation, however, the plaintiffs’ failure to plead such fact‐specific\\n\\n16 details should not bar their LeClair claims.\\n\\n17 We recognize, of course, that “[t]here is no precise formula to determine\\n\\n18 whether an individual is similarly situated to comparators.” McDonald v. Vill. of\\n\\n\\n\\n 32\\n\\f 1 Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004); Lindquist v. City of Pasadena Texas, 669\\n\\n 2 F.3d 225, 234 (5th Cir. 2012) (“[T]he inquiry is case‐specific and requires us to\\n\\n 3 consider the full variety of factors that an objectively reasonable decisionmaker\\n\\n 4 would have found relevant in making the challenged decision.”) (quoting Griffin\\n\\n 5 Indus., Inc. v. Irvin, 496 F.3d 1189, 1203 (11th Cir. 2007) (internal quotation marks\\n\\n 6 and alterations omitted)). The question of “whether parties are similarly situated\\n\\n 7 is [generally] a fact‐intensive inquiry” that depends heavily on the particular\\n\\n 8 context of the case at hand. Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.\\n\\n 9 2006); see also Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004)\\n\\n10 (“Inevitably, the degree to which others are viewed as similarly situated depends\\n\\n11 substantially on the facts and context of the case.”). However, it is precisely in\\n\\n12 light of the inquiry’s fact‐intensive nature that we have cautioned against\\n\\n13 deciding whether two comparators are similarly situated on a motion to dismiss.\\n\\n14 See Brown, 756 F.3d at 230 (“Ordinarily, whether two employees are similarly\\n\\n15 situated presents a question of fact, rather than a legal question to be resolved on\\n\\n16 a motion to dismiss.” (internal quotation marks and alterations omitted)); cf.\\n\\n17 Chapman v. New York State Div. for Youth, 546 F.3d 230, 238 (2d Cir. 2008)\\n\\n18 (“[M]arket definition is a deeply fact‐intensive inquiry and courts therefore\\n\\n\\n\\n 33\\n\\f 1 hesitate to grant motions to dismiss for failure to plead a relevant product\\n\\n 2 market . . . .” (internal quotation marks and alterations omitted)).\\n\\n 3 On appeal, the defendants raise four additional arguments in favor of\\n\\n 4 dismissal, none of which is availing. First, the defendants fault the Amended\\n\\n 5 Complaint for not expressly alleging that there were Asian workers at the 34th\\n\\n 6 Avenue Jobsite when Burkart issued the violation for the pool of water. While\\n\\n 7 the defendants are technically correct, other factual allegations in the Amended\\n\\n 8 Complaint provide a basis for reasonably inferring that Burkart issued the\\n\\n 9 violation when Asian workers were working on the site. For example, the\\n\\n10 Amended Complaint alleges that “Burkart issued a violation [to the plaintiffs],\\n\\n11 though, as discussed below, he did not issue one when non‐Asian workers were\\n\\n12 performing work in and around the same standing water.” Hu Appx. at A37 ¶\\n\\n13 192. The plaintiffs’ description of the white workers as “non‐Asian” supports the\\n\\n14 inference that the workers who were present when Burkart issued his violation\\n\\n15 were Asian. This inference is bolstered by the allegation that Burkart “reserved\\n\\n16 such negative treatment [i.e., the issuance of a violation] for Asian workers,” id. at\\n\\n17 A39 ¶ 202, which allegation in essence states that the violation was issued when\\n\\n18 the workers on the site with the pool of water were Asian. When these\\n\\n\\n\\n 34\\n\\f 1 allegations are combined with the fact that the plaintiffs are an Asian worker and\\n\\n 2 Asian‐owned companies, they create the plausible inference that Burkart issued a\\n\\n 3 violation for the pool of water when Asian workers were working at the 34th\\n\\n 4 Avenue Jobsite, but declined to issue a violation for the same pool of water when\\n\\n 5 white workers were working at the location.\\n\\n 6 Second, the defendants argue that the white workers cannot be similarly\\n\\n 7 situated to NY Drilling or 888 Consulting because individuals cannot be similarly\\n\\n 8 situated to corporate entities. However, they offer no explanation or caselaw in\\n\\n 9 support of this assertion, and it is not clear to us why corporate form is material\\n\\n10 to the similarly situated analysis in this case. According to the plaintiffs’ theory\\n\\n11 of discrimination, NY Drilling and 888 Consulting are being unfairly targeted\\n\\n12 because Burkart has identified them as “Asian” construction companies that\\n\\n13 work closely with Hu. Thus, from Burkart’s perspective, it is not the plaintiffs’\\n\\n14 corporate form that materially distinguishes them from other entities working in\\n\\n15 the construction industry. Instead, it is the fact that these corporate plaintiffs are\\n\\n16 owned and controlled by Asians and have close associations with Hu. Said\\n\\n17 another way, the defendants discriminate against NY Drilling and 888\\n\\n18 Consulting based on the identities of these companies’ employees and business\\n\\n\\n\\n 35\\n\\f 1 associates. Indeed, it can be reasonably inferred from the Amended Complaint\\n\\n 2 that the defendants use the presence of Asian workers to identify and target\\n\\n 3 jobsites that are being run by these plaintiffs. See Hu Appx. at A44 ¶ 249\\n\\n 4 (“Plaintiffs have been forced to put Caucasian people in positions whereby they\\n\\n 5 interact with inspectors, so as to facilitate lifting of [stop work orders] and\\n\\n 6 releasing of permits.”). Thus, because NY Drilling and 888 Consulting are being\\n\\n 7 adversely targeted based on the race and identities of their owners and workers,\\n\\n 8 they can prove their discrimination claim by showing that their Asian employees\\n\\n 9 have been treated differently from similarly situated non‐Asian workers.\\n\\n10 Third, the defendants fault the plaintiffs for not citing the specific\\n\\n11 provision of the building code that they and the white workers allegedly violated\\n\\n12 by having a pool of water at the 34th Avenue Jobsite. Although this is true, the\\n\\n13 plaintiffs do allege the precise conduct forming the basis of their alleged\\n\\n14 violation of the building code, i.e., performing construction work at a jobsite that\\n\\n15 has a pool of water. Drawing all inferences in favor of the plaintiffs, a reasonable\\n\\n16 juror could infer from the Amended Complaint that the white workers violated\\n\\n\\n\\n\\n 36\\n\\f 1 the same building code provision that the plaintiffs allegedly did by engaging in\\n\\n 2 the same conduct at the same jobsite.4\\n\\n 3 Finally, the defendants argue that the 34th Avenue Jobsite cannot serve as\\n\\n 4 a comparator because NY Drilling was the general contractor on the site and\\n\\n 5 therefore responsible for any violation issued to that location, regardless of\\n\\n 6 whether the violation sanctioned the plaintiffs’ workers or the white workers.\\n\\n 7 The defendants speculate that, if Burkart was, in fact, targeting the plaintiffs, he\\n\\n 8 would have also sanctioned the white workers for the pool of water, presumably\\n\\n 9 knowing that such a sanctioning would ultimately hurt NY Drilling. This\\n\\n10 argument, however, assumes facts that are not found in the Amended\\n\\n11 Complaint. The plaintiffs do not allege that NY Drilling was the general\\n\\n12 contractor on the 34th Avenue Jobsite. Nor does the Amended Complaint allege\\n\\n13 that any violation issued at a jobsite is issued to the jobsite’s general contractor,\\n\\n14 as opposed to the jobsite’s subcontractors. Instead, the Amended Complaint\\n\\n\\n\\n 4 As support for their assertion that the plaintiffs must identify the specific Building Code\\n provision that was violated by having a pool of water on the Jobsite, the defendants cite to the Fifth\\n Circuit’s decision in Lindquist v. City of Pasadena Texas, 669 F.3d 225, 234 (5th Cir. 2012), which decision\\n held that, in a case that “involves the application of an ordinance or statute, the plaintiff’s and\\n comparators’ relationships with the ordinance at issue will generally be a relevant characteristic for\\n purposes of the similarly‐situated analysis.” However, Lindquist was decided at the summary judgment\\n stage, not on a motion to dismiss. Id. at 227. Here, at the pleading stage, it can reasonably be inferred\\n from the factual allegations of the Amended Complaint that the white workers and the plaintiffs violated\\n the same building code provision by engaging in the same conduct at the same jobsite.\\n 37\\n\\f 1 merely alleges that the plaintiffs were issued a notice of violation for performing\\n\\n 2 work on a jobsite with a pool of water. To assume that NY Drilling was\\n\\n 3 responsible for all violations issued at the 34th Avenue Jobsite, including any\\n\\n 4 violation that could have been issued to the white workers, would be drawing\\n\\n 5 inferences against the plaintiffs.\\n\\n 6 Admittedly, the question of whether these factual allegations plausibly\\n\\n 7 support a LeClair claim is a close one. The plaintiffs have certainly not made it\\n\\n 8 easy for this court to conclude that they bear a reasonably close resemblance to\\n\\n 9 the white workers at the 34th Avenue Jobsite. Nevertheless, drawing all\\n\\n10 inferences in favor of the plaintiffs, and resolving all ambiguities against the\\n\\n11 defendants, we conclude that these allegations are sufficient to satisfy the\\n\\n12 “reasonably close resemblance” standard of similarity that governs the plaintiffs’\\n\\n13 race‐based and malice‐based LeClair claims.\\n\\n14 The plausibility of their claims is strengthened by the Amended\\n\\n15 Complaint’s allegations of racial bias against Asians and personal malice against\\n\\n16 Hu, including the allegations that, inter alia, Burkart made explicitly racist\\n\\n17 comments; had a racist motive to discriminate against Asians; statistically gave\\n\\n18 more violations to Asian construction sites than did his colleagues; bragged\\n\\n\\n\\n 38\\n\\f 1 about his plans to shut down Hu’s jobsites; called Hu “a rat” for reporting a\\n\\n 2 colleague to the FBI; hung a picture of Hu on his wall; and specifically searched\\n\\n 3 DOB’s databases for construction worksites that employed Hu. These allegations\\n\\n 4 satisfy the motive element of LeClair and help “nudge” the plaintiffs’ Equal\\n\\n 5 Protection claims “across the line from conceivable to plausible.” Iqbal, 556 U.S.\\n\\n 6 at 680 (quoting Twombly, 550 U.S. at 570). Accordingly, we vacate the District\\n\\n 7 Court’s dismissal of the plaintiffs’ LeClair selective enforcement claims of race‐\\n\\n 8 based and malice‐based discrimination.5\\n\\n 9 b. Olech Claim\\n\\n10 In contrast, none of the plaintiffs’ proffered comparators satisfy the more\\n\\n11 stringent similarity standard for an Olech claim.\\n\\n12 With regard to the 34th Avenue Jobsite, the plaintiffs’ factual allegations\\n\\n13 are too sparse to raise a reasonable inference that Burkart’s differential treatment\\n\\n14 of the plaintiffs and the white workers “lack[ed] any reasonable nexus with a\\n\\n\\n\\n 5 We have not decided whether the Supreme Court’s decision in Engquist to bar Olech claims in\\n the employment context also applies to malice‐based LeClair claims. See Spanierman v. Hughes, 576 F.\\n Supp. 2d 292, 307 (D. Conn. 2008) (noting this uncertainty). We need not, and do not, resolve this issue\\n today. Assuming arguendo that Engquist does apply to malice‐based LeClair claims, it would not preclude\\n the plaintiffs from raising this type of claim in the present suit. As in other cases where we have\\n concluded that Engquist did not bar a class of one claim, this case involves (1) the state acting as a\\n sovereign rather than a proprietor; and (2) the defendants operating within a regulatory framework (i.e.,\\n the building code) that articulates clear standards of conduct, limits their discretion, and provides\\n mechanisms for challenging and reviewing their determinations (i.e., an Article 78 proceeding). See\\n Analytical Diagnostic Labs, 626 F.3d at 142; Fortress Bible Church, 694 F.3d at 222.\\n 39\\n\\f 1 legitimate governmental policy.” Progressive Credit Union, 889 F.3d at 49 (quoting\\n\\n 2 Neilson, 409 F.3d at 105) (internal alterations omitted). The Amended Complaint\\n\\n 3 is silent as to a whole host of potential factors that could legitimately justify\\n\\n 4 Burkart’s behavior, including, inter alia, whether the white workers were\\n\\n 5 engaged in the same type of work as the plaintiffs, the length of time between\\n\\n 6 Burkart’s visits to the 34th Avenue Jobsite, and the identity of the white workers’\\n\\n 7 employer. While we are not suggesting that any one of these omissions is\\n\\n 8 dispositive, they are, together, fatal to the plaintiffs’ Olech claim. Absent the non‐\\n\\n 9 conclusory allegations that Burkart had a race‐based animus against Asians and\\n\\n10 a personal grudge against Hu, it could not reasonably be inferred that the two\\n\\n11 situations were so identical as to “exclude the possibility that [Burkart] acted on\\n\\n12 the basis of a mistake.” Id.\\n\\n13 The plaintiffs’ second proffered comparator fares no better. In particular,\\n\\n14 the plaintiffs allege that Burkart permitted Vera Construction, a non‐Asian\\n\\n15 company, to complete foundation work at the 43‐05 Jobsite, but then promptly\\n\\n16 shut down work at that location once 43 162 St. Management, an Asian company,\\n\\n17 became responsible for the construction site. The Amended Complaint,\\n\\n18 however, is devoid of facts suggesting that the plaintiffs worked at or were\\n\\n\\n\\n 40\\n\\f 1 otherwise involved with the 43‐05 Jobsite. Thus, notwithstanding the plaintiffs’\\n\\n 2 conclusory assertions that they are similarly situated to Vera Construction and its\\n\\n 3 owner, Burkart’s conduct at the 43‐05 Jobsite does not raise a plausible inference\\n\\n 4 that Burkart treated the plaintiffs differently from Vera Construction. Thus,\\n\\n 5 while this incident may tend to prove that Burkart was biased against Asians\\n\\n 6 generally, it does not show that the plaintiffs were adversely affected by that bias.\\n\\n 7 The 43‐05 Jobsite therefore provides no basis for reversing the District Court’s\\n\\n 8 dismissal of the plaintiffs’ Olech claim, as a comparator only satisfies the pleading\\n\\n 9 requirements of that claim if the comparator “received more favorable treatment\\n\\n10 than the plaintiff.” Neilson, 409 F.3d at 105.\\n\\n11 The plaintiffs’ third proffered comparator fails for the same reason. More\\n\\n12 specifically, the plaintiffs compare DOB’s lenient treatment of Westerman\\n\\n13 Construction Company (“Westerman”), a non‐Asian contractor who oversaw the\\n\\n14 West 22nd Jobsite, with DOB’s harsher treatment of certain unnamed “Asian\\n\\n15 construction professionals” who owned and operated a second jobsite located at\\n\\n16 20‐16 College Point Boulevard, College Point, New York (“the College Point\\n\\n17 Jobsite”). See Hu Appx. at A41 ¶ 221 – A43 ¶ 244. However, the plaintiffs do not\\n\\n18 allege that they worked at or were involved with the College Point Jobsite.\\n\\n\\n\\n 41\\n\\f 1 Accordingly, there are no factual allegations to suggest that the plaintiffs were\\n\\n 2 adversely affected by DOB’s differential treatment of the two construction sites.\\n\\n 3 If anything, it appears that the plaintiffs were on the benefiting end of DOB’s\\n\\n 4 selective enforcement, as NY Drilling allegedly worked as a subcontractor at the\\n\\n 5 West 22nd Jobsite.\\n\\n 6 Finally, we reject the plaintiffs’ contention that they can satisfy the\\n\\n 7 similarly situated standard based on a statistical showing that Burkart sanctioned\\n\\n 8 Asians at higher rates than his colleagues did. Our caselaw makes clear that\\n\\n 9 statistics cannot substitute for specific comparators in Olech or LeClair claims. See\\n\\n10 Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010)\\n\\n11 (dismissing an Olech claim for failure to “allege specific examples” of similarly\\n\\n12 situated comparators); Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1988) (“To\\n\\n13 support a claim of selective enforcement, appellants must allege purposeful and\\n\\n14 systematic discrimination by specifying instances in which they were singled out\\n\\n15 for unlawful oppression in contrast to others similarly situated.” (internal\\n\\n16 quotation marks and alterations omitted)). To prevail under either theory of\\n\\n17 Equal Protection, a plaintiff must specify at least one instance in which he was\\n\\n18 treated differently from another similarly situated. See Neilson, 409 F.3d at 105\\n\\n\\n\\n 42\\n\\f 1 (holding that a plaintiff must identify “a comparator” whose circumstances are\\n\\n 2 sufficiently similar). Thus, because none of the plaintiffs’ proffered comparators\\n\\n 3 satisfy the similarity standard for an Olech cause of action, we affirm the District\\n\\n 4 Court’s dismissal of that claim.\\n\\n 5 C. Section 1981 Claim\\n\\n 6 For the same reasons that we vacate the District Court’s dismissal of the\\n\\n 7 plaintiffs’ LeClair claims, we vacate its dismissal of the plaintiffs’ section 1981\\n\\n 8 claim for race‐based interference with the plaintiffs’ rights to make and enforce\\n\\n 9 contracts. As the District Court correctly noted, “plaintiffs must meet the same\\n\\n10 pleading standard for their § 1981 claims as for their § 1983 claims under the\\n\\n11 Equal Protection Clause.” Brown v. City of Oneonta, New York, 221 F.3d 329, 339\\n\\n12 (2d Cir. 2000). Thus, to prevail on a section 1981 claim, a plaintiff must allege at\\n\\n13 least one instance in which he was treated differently from a similarly situated\\n\\n14 non‐minority. Id. (citing Albert, 851 F.2d at 573). The section 1981 standard for\\n\\n15 determining whether a plaintiff and a comparator are similarly situated is\\n\\n16 identical to the similarity standard for a LeClair Equal Protection claim. Compare\\n\\n17 supra at 28–29, with Lizardo, 270 F.3d at 101 (section 1981 race discrimination\\n\\n18 claim).\\n\\n\\n\\n 43\\n\\f 1 Recognizing these parallels, the District Court dismissed the plaintiffs’\\n\\n 2 section 1981 claim for the same reason that it dismissed their Equal Protection\\n\\n 3 claims, namely, failure to plausibly allege differential treatment of a similarly\\n\\n 4 situated comparator. We now vacate, on that issue, having concluded that the\\n\\n 5 Amended Complaint does, in fact, state an Equal Protection claim under LeClair.6\\n\\n 6 D. Due Process Claim\\n\\n 7 The plaintiffs’ Due Process claim proceeds under two theories. First, they\\n\\n 8 argue that the defendants’ discriminatory enforcement practices have deprived\\n\\n 9 them of their right to pursue their occupation of choice, namely, construction\\n\\n10 work. Second, they rely on our decision in Chalfy v. Turoff, 804 F.2d 20 (2d Cir.\\n\\n11 1986), to assert a “pattern of harassment” claim, alleging that the defendants\\n\\n12 have engaged in systematic and intentional harassment with the objective of\\n\\n13 driving the plaintiffs out of business. See Appellants’ Brief (“Pls.’ Mem.”) (Doc.\\n\\n\\n\\n\\n 6 We decline to consider whether the Amended Complaint plausibly alleges the other elements of\\n a section 1981 claim, including whether the defendants’ conduct interfered with the making and\\n enforcement of contracts. See Brown, 221 F.3d at 339 (“To establish a claim under 42 U.S.C. § 1981,\\n plaintiffs must allege facts supporting the following elements: (1) plaintiffs are members of a racial\\n minority; (2) defendantsʹ intent to discriminate on the basis of race; and (3) discrimination concerning one\\n of the statuteʹs enumerated activities.”). Instead, the District Court should address these issues in the first\\n instance if they arise on remand. See Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir. 2001) (“In\\n general, a federal appellate court does not consider an issue not passed upon below.” (internal quotation\\n marks omitted)).\\n 44\\n\\f 1 No. 39), Case No. 18‐737, at 51–54. The District Court dismissed both claims, and\\n\\n 2 we now affirm.\\n\\n 3 As to the first theory, it is well established that “the liberty component of\\n\\n 4 the Fourteenth Amendmentʹs Due Process Clause includes some generalized due\\n\\n 5 process right to choose oneʹs field of private employment.” Conn v. Gabbert, 526\\n\\n 6 U.S. 286, 291–92 (1999). That right, however, is “subject to reasonable\\n\\n 7 government regulation.” Id. at 292. “[B]rief interruption[s]” of work do not give\\n\\n 8 rise to a Due Process claim. Id. Instead, the Supreme Court, this Circuit, and the\\n\\n 9 other Circuits addressing the issue have all indicated that the right of\\n\\n10 occupational choice is afforded Due Process protection only when a plaintiff is\\n\\n11 “complete[ly] prohibit[ed]” from engaging in his or her chosen profession. Id.\\n\\n12 (“These cases all deal with a complete prohibition of the right to engage in a\\n\\n13 calling, and not the sort of brief interruption which occurred here.”); United States\\n\\n14 v. Farhane, 634 F.3d 127, 137 (2d Cir. 2011) (reading Conn to imply that “due\\n\\n15 process is violated only by complete prohibition of the right to engage in a\\n\\n16 calling” (internal quotation marks omitted)); see also, e.g., Singleton v. Cecil, 176\\n\\n17 F.3d 419, 426 n.8 (8th Cir. 1999) (“The [Conn] Court then made clear that this\\n\\n18 right has been afforded substantive due process protection only when the\\n\\n\\n\\n 45\\n\\f 1 government completely prohibits, rather than briefly interrupts, a person from\\n\\n 2 engaging in his desired occupational field.” (internal quotation marks and\\n\\n 3 alterations omitted)); Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003) (“This\\n\\n 4 indirect and incidental burden on professional practice is far too removed from a\\n\\n 5 complete prohibition to support a due process claim.”).\\n\\n 6 In this case, the plaintiffs allege that the defendants’ enforcement actions\\n\\n 7 have cost them money, clients, and future business opportunities. However,\\n\\n 8 business losses alone do not implicate the Due Process right of occupational\\n\\n 9 choice. See JWJ Indus., Inc. v. Oswego Cty., 538 F. Appʹx 11, 14 (2d Cir. 2013) (“Due\\n\\n10 process has not been construed to preclude government actions that adversely\\n\\n11 affect a businessʹs profitability.”). To prevail on such a claim, a plaintiff must\\n\\n12 allege facts suggesting that a defendant’s conduct has “operate[d] as a complete\\n\\n13 prohibition on his ability to practice [his chosen profession].” Franceschi v. Yee,\\n\\n14 887 F.3d 927, 938 (9th Cir.), cert. denied, 139 S. Ct. 648 (2018). Nothing in the\\n\\n15 Amended Complaint plausibly suggests that the plaintiffs have been driven out\\n\\n16 of the construction business, or even that they are on the verge of shutting down.\\n\\n17 If anything, the Amended Complaint appears to anticipate the plaintiffs’\\n\\n18 continued operations in the construction industry. See Hu Appx. at A44 ¶ 256\\n\\n\\n\\n 46\\n\\f 1 (“Burkart and the Inspector Defendants are not only causing Hu to lose current\\n\\n 2 income streams, but are also damaging his reputation, which will lead to further\\n\\n 3 future losses.”).\\n\\n 4 Nor can the plaintiffs create a Due Process claim by alleging that it is\\n\\n 5 Burkart’s “objective” to put them out of business. See Pls.’ Mem. at 50. When\\n\\n 6 determining whether a burden amounts to a complete prohibition of the right to\\n\\n 7 engage in a calling, courts have focused on the effects of a defendant’s conduct,\\n\\n 8 not on the intentions underlying that conduct. See, e.g., Lowry, 329 F.3d at 1023\\n\\n 9 (discussing the degree to which the defendant’s conduct interfered with the\\n\\n10 plaintiffs’ professional practice); Grider v. Abramson, 180 F.3d 739, 752 n.17 (6th\\n\\n11 Cir. 1999) (same). The concept of “complete prohibition” will not stretch so far as\\n\\n12 to cover cases where, as here, the defendant’s mal‐intent is clear but the actual\\n\\n13 risk that the plaintiff will be excluded from her profession of choice is\\n\\n14 speculative. Thus, because the plaintiffs did not allege facts suggesting that the\\n\\n15 defendants have effectively prohibited them from engaging in construction\\n\\n16 work, we affirm the District Court’s dismissal of the plaintiffs’ Due Process claim\\n\\n17 for infringement of their right of occupational choice.\\n\\n\\n\\n\\n 47\\n\\f 1 As to their second theory of Due Process, the plaintiffs rely on our decision\\n\\n 2 in Chalfy, in which we suggested that a plaintiff could make out a substantive\\n\\n 3 Due Process claim by showing that government officials engaged in systematic\\n\\n 4 and intentional harassment in an attempt to drive the plaintiff out of business.\\n\\n 5 See Chalfy, 804 F.2d at 22–23; see also Interport Pilots Agency, Inc. v. Sammis, 14 F.3d\\n\\n 6 133, 144 (2d Cir. 1994) (characterizing Chalfy as a theory of substantive Due\\n\\n 7 Process). While we have not revisited this “pattern of harassment” theory of Due\\n\\n 8 Process since deciding Chalfy, district courts in this Circuit have continued to\\n\\n 9 treat it as a viable cause of action. See, e.g., Bertuglia v. City of New York, 839 F.\\n\\n10 Supp. 2d 703, 719 (S.D.N.Y. 2012) (denying the defendants’ motion to dismiss as\\n\\n11 to some of the plaintiffs’ Chalfy claims).\\n\\n12 In this case, the District Court dismissed the plaintiffs’ Chalfy claim on the\\n\\n13 grounds that the enforcement actions described in the Amended Complaint did\\n\\n14 not rise to the level of systematic and intentional harassment. We affirm the\\n\\n15 dismissal on different grounds, concluding that the plaintiffs’ substantive Due\\n\\n16 Process claim is subsumed by their Equal Protection claim.\\n\\n17 In the years following our decision in Chalfy, the Supreme Court narrowed\\n\\n18 the scope of substantive Due Process to claims that are not covered by other\\n\\n\\n\\n 48\\n\\f 1 provisions of the Constitution. See Graham v. Connor, 490 U.S. 386, 394–95 (1989)\\n\\n 2 (holding that excessive force claims should be analyzed under the Fourth\\n\\n 3 Amendment, rather than under substantive Due Process); Albright v. Oliver, 510\\n\\n 4 U.S. 266, 273 (1994) (plurality) (limiting the scope of substantive Due Process to\\n\\n 5 claims that do not have “an explicit textual source of constitutional protection”);\\n\\n 6 Conn, 526 U.S. at 293 (same). It is now well established that, “[w]here another\\n\\n 7 provision of the Constitution provides an explicit textual source of constitutional\\n\\n 8 protection, a court must assess a plaintiffʹs claims under that explicit provision\\n\\n 9 and not the more generalized notion of substantive due process.” Southerland v.\\n\\n10 City of New York, 680 F.3d 127, 142–43 (2d Cir. 2012) (quoting Kia P. v. McIntyre,\\n\\n11 235 F.3d 749, 757–58 (2d Cir. 2000)). In this case, the plaintiffs’ Chalfy claim and\\n\\n12 Equal Protection claim both rest on the same set of factual allegations, namely:\\n\\n13 that Burkart and his colleagues selectively enforced the building code against the\\n\\n14 plaintiffs based on Burkart’s racial animus towards Asians and his personal\\n\\n15 animus towards Hu. As a result, the plaintiffs’ substantive Due Process\\n\\n16 allegations are subsumed by their more particular allegations of Equal Protection\\n\\n17 violations. See Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005) (holding that the\\n\\n18 plaintiff’s substantive due process claim was subsumed by the alleged First\\n\\n\\n\\n 49\\n\\f 1 Amendment and Equal Protection violations); Terminate Control Corp. v. Horowitz,\\n\\n 2 28 F.3d 1335, 1351 n.8 (2d Cir. 1994) (dismissing a plaintiff’s substantive Due\\n\\n 3 Process claim because it was duplicative of the plaintiff’s Equal Protection claim);\\n\\n 4 see also Wilson v. Birnberg, 667 F.3d 591, 599 (5th Cir. 2012) (disregarding the\\n\\n 5 plaintiff’s substantive due process claims because they were “rooted in\\n\\n 6 procedural due process, the Equal Protection Clause, and the First\\n\\n 7 Amendment”). We therefore affirm the District Court’s dismissal of the Chalfy\\n\\n 8 claim on different grounds, concluding that this claim must be analyzed under\\n\\n 9 the Equal Protection Clause.7\\n\\n10 E. Monell Claim\\n\\n11 We also affirm the dismissal of the plaintiffs’ Monell claim against the City,\\n\\n12 concluding, as the lower court did, that the plaintiffs have not plausibly alleged\\n\\n13 the existence of an official municipal policy.\\n\\n14 To bring a section 1983 lawsuit for municipal liability, “a plaintiff must\\n\\n15 prove that action pursuant to official municipal policy caused the alleged\\n\\n16 constitutional injury.” Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011)\\n\\n\\n\\n\\n 7 In reaching this outcome, we do not mean to suggest that Chalfy is a dead letter. There may be\\n situations in which a Chalfy claim is not covered by an explicit provision of the Constitution. However,\\n on the factual allegations presented in this case, we conclude that the plaintiffs’ Chalfy claim for\\n intentional and systematic government harassment is precluded by their Equal Protection claims.\\n 50\\n\\f 1 (internal quotation marks omitted). This requirement follows from the principle\\n\\n 2 that, “under § 1983, local governments are responsible only for their own illegal\\n\\n 3 acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation marks\\n\\n 4 omitted). In other words, “a city cannot be held liable under § 1983 on a theory\\n\\n 5 of respondeat superior.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d\\n\\n 6 Cir. 2004). Instead, “a plaintiff must demonstrate that, through its deliberate\\n\\n 7 conduct, the municipality was the moving force behind the alleged injury.” Roe\\n\\n 8 v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (internal quotation marks\\n\\n 9 omitted).\\n\\n10 An official municipal policy can take a variety of forms. See, e.g., Cash, 654\\n\\n11 F.3d at 334 (“A municipal policy may be pronounced or tacit and reflected in\\n\\n12 either action or inaction.”). This case, however, only implicates two theories of\\n\\n13 municipal action, namely: (1) that a policymaking officer ratified the\\n\\n14 discriminatory enforcement practices of Burkart and his colleagues; and (2) that\\n\\n15 these unconstitutional practices were so widespread, persistent, and manifest as\\n\\n16 to imply constructive acquiescence on the part of the City.\\n\\n17 To prevail on the first theory, a plaintiff must allege facts suggesting that\\n\\n18 an officer with final policymaking authority ordered, ratified, or “was aware of a\\n\\n\\n\\n 51\\n\\f 1 subordinate’s unconstitutional actions, and consciously chose to ignore them,\\n\\n 2 effectively ratifying the actions.” Amnesty Am., 361 F.3d at 126. A plaintiff need\\n\\n 3 only identify one such decision to bring a Monell claim, for “even a single action\\n\\n 4 by a decisionmaker who possesses final authority to establish municipal policy\\n\\n 5 with respect to the action ordered may deprive the plaintiff of his or her\\n\\n 6 constitutional rights.” Montero v. City of Yonkers, New York, 890 F.3d 386, 403 (2d\\n\\n 7 Cir. 2018) (internal quotation marks and alterations omitted). The question of\\n\\n 8 whether an official “possessed final policymaking authority is a legal question,\\n\\n 9 which is to be answered on the basis of state law, . . . includ[ing] state and local\\n\\n10 positive law, as well as custom or usage having the force of law.” Jeffes v. Barnes,\\n\\n11 208 F.3d 49, 57 (2d Cir. 2000) (internal quotation marks, citations, and alterations\\n\\n12 omitted).\\n\\n13 As support for their ratification theory of municipal action, the plaintiffs\\n\\n14 point to Hu’s 2011 meeting with Burkart, an unnamed aide to a New York City\\n\\n15 Councilman, and Inspector Kaleid, the head of the Concrete Enforcement Unit\\n\\n16 (“CEU”) at the time. During this meeting, Inspector Kaleid allegedly dismissed\\n\\n17 Hu’s concerns about Burkart’s targeting of Asian construction workers and\\n\\n18 companies, stating that “[Burkart] is good for the City because he generates a lot\\n\\n\\n\\n 52\\n\\f 1 of revenue through his issuance of notices of violation.” Hu Appx. at A25 ¶ 83.\\n\\n 2 The plaintiffs contend that Inspector Kaleid’s response amounted to a\\n\\n 3 “ratification [that] gave license for DOB Inspectors to engage in such\\n\\n 4 misconduct[.]” Appellants’ Reply Brief (Doc. No. 76), Case No. 18‐737, at 23.\\n\\n 5 Nothing in the Amended Complaint, however, suggests that Inspector\\n\\n 6 Kaleid possessed final policymaking authority over Burkart’s enforcement\\n\\n 7 practices. The plaintiffs themselves appear to acknowledge in their Amended\\n\\n 8 Complaint that New York law vests DOB Commissioner Chandler, not Inspector\\n\\n 9 Kaleid, with final policymaking authority over DOB enforcement practices.\\n\\n10 There is no basis in the Amended Complaint for concluding that custom or usage\\n\\n11 imbued Inspector Kaleid with such authority. Nor is there a basis for attributing\\n\\n12 Inspector Kaleid’s dismissal of Hu’s grievances to Commissioner Chandler.\\n\\n13 Indeed, the Amended Complaint is devoid of factual allegations suggesting that\\n\\n14 Commissioner Chandler was personally involved in, or aware of, the 2011\\n\\n15 meeting, Burkart’s discriminatory enforcement practices, or any other\\n\\n16 unconstitutional actions taken by DOB’s subordinate officers.8 As a result, the\\n\\n\\n 8The Amended Complaint also alleges in conclusory terms that the City and Chandler “were [ ]\\n on notice” due to Hu’s complaint to the FBI regarding Dabusco. Hu Appx. at A60 ¶ 352. The plaintiffs\\n do not press this argument on appeal, which, in any event, has no merit. It cannot be reasonably inferred\\n that Hu’s FBI complaint, which alleged that Dabusco was engaging in extortion, put the City on notice\\n\\n\\n 53\\n\\f 1 plaintiffs have not raised a plausible inference that their constitutional injuries\\n\\n 2 were caused by a City official with final policymaking authority.\\n\\n 3 The plaintiffs’ second theory of municipal action seeks to hold the City\\n\\n 4 liable based on constructive notice. While “isolated acts by non‐policymaking\\n\\n 5 municipal employees are generally not sufficient to demonstrate a municipal\\n\\n 6 custom, policy, or usage that would justify liability,” we have recognized that\\n\\n 7 “they can be the basis of liability if they . . . were sufficiently widespread and\\n\\n 8 persistent to support a finding that they constituted a custom, policy, or usage of\\n\\n 9 which supervisors must have been aware.” Matusick v. Erie Cty. Water Auth., 757\\n\\n10 F.3d 31, 62 (2d Cir. 2014) (internal quotation marks and alterations omitted). To\\n\\n11 prevail on such a theory of Monell liability, a plaintiff need not identify an\\n\\n12 express rule or regulation that embodies the alleged unconstitutional practice\\n\\n13 among subordinate municipal employees. Green v. City of New York, 465 F.3d 65,\\n\\n14 80 (2d Cir. 2006). However, the plaintiff must show that “the alleged practice\\n\\n15 [was] so manifest as to imply the constructive acquiescence of senior policy‐\\n\\n16 making officials.” Id. (internal quotation marks omitted).\\n\\n\\n\\n\\n that other DOB officials were targeting the plaintiffs for unwarranted building code violations on the\\n basis of race and personal animus.\\n 54\\n\\f 1 The allegations of misconduct in this case do not rise to such a level. The\\n\\n 2 Amended Complaint only identifies four instances in which the plaintiffs were\\n\\n 3 alleged to have been unfairly sanctioned by DOB. Although the plaintiffs argue\\n\\n 4 that these specific enforcement actions are illustrative of a larger pattern of\\n\\n 5 unconstitutional targeting, they do not allege facts to suggest that this larger\\n\\n 6 pattern of targeting qualifies as widespread, persistent, or otherwise manifest\\n\\n 7 behavior.\\n\\n 8 Similarly, while the plaintiffs claim that Burkart enlisted the help of other\\n\\n 9 DOB employees to target and harass the plaintiffs, the Amended Complaint does\\n\\n10 not allege how many DOB employees were involved in the scheme, whether\\n\\n11 these accomplices represented a large or small share of DOB inspectors or\\n\\n12 personnel, the frequency with which these accomplices assisted in discriminatory\\n\\n13 enforcement practices, or any other facts that might indicate the extent to which\\n\\n14 DOB personnel helped Burkart carry out his alleged personal vendetta against\\n\\n15 Hu and other Asians in the construction industry. As a result, it is entirely\\n\\n16 unclear whether DOB’s targeting of the plaintiffs is the product of a few rogue\\n\\n17 officials, a department‐wide effort, or something in between.\\n\\n\\n\\n\\n 55\\n\\f 1 Likewise, the allegations that Burkart made racist remarks do not raise a\\n\\n 2 plausible inference that senior policymaking officers should have known of the\\n\\n 3 discriminatory enforcement practices. While the Amended Complaint alleges\\n\\n 4 that Burkart has been overheard harassing Asian workers, calling Hu a rat, and\\n\\n 5 bragging about his plans to drive the plaintiffs out of business, it is silent as to\\n\\n 6 the number and identities of the listeners. As a result, there is no basis for\\n\\n 7 concluding that these remarks were made “with sufficient frequency or in such a\\n\\n 8 manner that the attitude would have been known to supervisory personnel.”\\n\\n 9 Jones v. Town of East Haven, 691 F.3d 72, 82 (2d Cir. 2012). Similarly, while\\n\\n10 Burkart’s dislike of Hu and Asians may have been an open secret among\\n\\n11 construction industry professionals, there are no factual allegations to suggest\\n\\n12 that Burkart communicated this attitude directly to senior policymaking officers\\n\\n13 or in a manner that should have made senior policymaking officers aware of his\\n\\n14 discriminatory animus.\\n\\n15 In short, the Amended Complaint provides no basis for concluding that\\n\\n16 the defendants’ discriminatory enforcement actions against the plaintiffs\\n\\n17 “represent[ed] the conscious choices of the municipality itself.” Amnesty Am.,\\n\\n18 361 F.3d at 126. While it can reasonably be inferred that the plaintiffs have been\\n\\n\\n\\n 56\\n\\f 1 the victims of persistent harassment by several subordinate officers at DOB, the\\n\\n 2 factual allegations do not “compel[ ] the conclusion that the local government\\n\\n 3 has acquiesced in or tacitly authorized its subordinates’ unlawful actions.”\\n\\n 4 Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). Accordingly, we affirm the\\n\\n 5 District Court’s dismissal of the plaintiffs’ Monell claim.9\\n\\n 6 F. Dismissal with Prejudice\\n\\n 7 Finally, the plaintiffs argue that, even if the District Court properly\\n\\n 8 dismissed their federal claims under Rule 12(b)(6), it erred by dismissing those\\n\\n 9 claims with prejudice. It is true that, in general, courts should “freely give leave”\\n\\n10 to amend pleadings “when justice so requires.” Fed. R. Civ. P. 15(a)(2).\\n\\n11 However, we have also held that “no court can be said to have erred in failing to\\n\\n12 grant a request that was not made.” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir.\\n\\n\\n 9 The plaintiffs attempt to blame the defendants for any insufficiencies in their Monell claim,\\n arguing that the defendants have not timely responded to the freedom of information requests that they\\n made pursuant to New York law. We are not persuaded by this argument. As the alleged victims of the\\n defendants’ discriminatory targeting, the plaintiffs presumably possessed information on the number and\\n types of sanctions and violations that they have received over the years. Nevertheless, their Amended\\n Complaint fails to describe, in even general terms, the overall volume and frequency of enforcement\\n actions taken against the plaintiffs. Moreover, even if the plaintiffs did not personally keep records of\\n this information, they conceded at oral argument that DOB posts building code violations on its website.\\n Thus, the plaintiffs do not face the situation where the facts that they need to plead their Monell claim\\n “are peculiarly within the possession and control of the defendant[.]” Citizens United v. Schneiderman, 882\\n F.3d 374, 384 (2d Cir. 2018) (internal quotation marks omitted); see also Amnesty Am., 361 F.3d at 130 n.10\\n (noting that, on a motion to dismiss a Monell claim for failure to train, a plaintiff is not required to\\n “identify a specific deficiency in the [ ] training program or to establish a causal link between the lack of\\n training and the misconduct [because] [i]t is unlikely that a plaintiff would have information about the\\n city’s training programs or about the cause of the misconduct at the pleading stage[.]”).\\n\\n\\n 57\\n\\f 1 2011); see also Horoshko v. Citibank, N.A., 373 F.3d 248, 249–50 (2d Cir. 2004)\\n\\n 2 (“[The] contention that the District Court abused its discretion in not permitting\\n\\n 3 an amendment that was never requested is frivolous.”). Because the plaintiffs in\\n\\n 4 this case never requested leave to amend their Amended Complaint, the District\\n\\n 5 Court did not err in declining to sua sponte grant leave to amend. We therefore\\n\\n 6 affirm the lower court’s decision to dismiss with prejudice the plaintiffs’ Olech\\n\\n 7 claim, Due Process claim, and Monell claim.10\\n\\n 8 G. State Claim\\n\\n 9 The District Court declined to exercise supplemental jurisdiction over the\\n\\n10 plaintiffs’ state tax claim on the grounds that it had dismissed all of their federal\\n\\n11 claims. Having reinstated the plaintiffs’ LeClair claims, we vacate the District\\n\\n12 Court’s decision to remand the state claim to state court. On remand, the District\\n\\n13 Court may reconsider whether to exercise supplemental jurisdiction in light of\\n\\n14 the new posture of the case.\\n\\n\\n\\n\\n 10 On appeal, the plaintiffs also argue that the District Court erred by not permitting them to\\n conduct jurisdictional discovery. This argument, however, is frivolous because the plaintiffs never made\\n such a request to the District Court. Moreover, based on the plaintiffs’ description of the discovery that\\n they seek to elicit from the defendants, it appears that the plaintiffs seek discovery on the merits of their\\n claims, rather than on jurisdictional issues.\\n 58\\n\\f1 V. CONCLUSION\\n\\n2 For the foregoing reasons, the judgment below is AFFIRMED in part\\n\\n3 insofar as the District Court dismissed the plaintiffs’ Olech claim, Due Process\\n\\n4 claim, and Monell claim. It is VACATED in part insofar as the District Court\\n\\n5 dismissed the plaintiffs’ section 1981 claim and their Equal Protection claims\\n\\n6 under LeClair for race‐based and malice‐based selective enforcement. We\\n\\n7 VACATE the District Court’s decision to decline to exercise supplemental\\n\\n8 jurisdiction over the plaintiffs’ state law claim, and we REMAND this case for\\n\\n9 further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 59\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2395,"cells":{"id":{"kind":"number","value":4629081,"string":"4,629,081"},"name":{"kind":"string","value":"Jorge Yarur BASCUÑÁN, Tarascona Corp., Hofstra Corp., Inmobiliaria Milano S.A., Inmobiliaria E Inversiones Tauro S.A., Inversiones T & v S.A., Plaintiffs-Appellants, v. Daniel Yarur ELSACA, Cristían Jara Taito, Oscar Bretón Dieguez, GM & E Asset Management S.A., Fintair Finance Corp., Euweland Corp., Hay's Finance Corp., Cary Equity's Corp., Agrícola E Inmobiliaria Chauquén Limitada, John Does 1-10, Alapinjdp Investing Corp., San Investment Company Ltd, Defendants-Appellees, José Pedro Silva Prado, Alapinjdp Investment Corp., Defendants."},"name_abbreviation":{"kind":"string","value":"Bascuñán v. Elsaca"},"decision_date":{"kind":"string","value":"2019-06-13"},"docket_number":{"kind":"string","value":"Docket 18-2731; August Term 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Wesley, Livingston, Brodie\", \"parties\": \"\", \"opinions\": [{\"author\": \"WESLEY, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"18‐2731\\nBascuñán v. Elsaca\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n ______________\\n\\n August Term 2018\\n\\n (Argued: March 6, 2019 | Decided: June 13, 2019)\\n\\n Docket No. 18‐2731\\n\\n JORGE YARUR BASCUÑÁN, TARASCONA CORP., HOFSTRA CORP.,\\nINMOBILIARIA MILANO S.A., INMOBILIARIA E INVERSIONES TAURO S.A.,\\n INVERSIONES T & V S.A.,\\n\\n Plaintiffs‐Appellants,\\n\\n v.\\n\\n DANIEL YARUR ELSACA, CRISTÍAN JARA TAITO, OSCAR BRETÓN\\n DIEGUEZ, GM & E ASSET MANAGEMENT S.A., FINTAIR FINANCE CORP.,\\n EUWELAND CORP., HAY’S FINANCE CORP., CARY EQUITY’S CORP.,\\n AGRÍCOLA E INMOBILIARIA CHAUQUÉN LIMITADA, JOHN DOES 1–10,\\n ALAPINJDP INVESTING CORP., SAN INVESTMENT COMPANY LTD,\\n\\n Defendants‐Appellees,\\n\\n JOSÉ PEDRO SILVA PRADO, ALAPINJDP INVESTMENT CORP.,\\n\\n Defendants.*\\n ______________\\n\\n\\n\\n\\n* The Clerk of the Court is directed to amend the official caption as set forth above.\\n\\fBefore:\\n WESLEY and LIVINGSTON, Circuit Judges; and BRODIE, District Judge.†\\n\\n This civil RICO action asks whether extraterritoriality issues prevent a\\nChilean national and affiliated parties from suing another Chilean national and\\naffiliated parties in the United States for their alleged involvement in numerous\\nfraudulent schemes. The primary allegations are that the defendants, while located\\nin foreign nations, used the mail or wires to order fraudulent asset transfers from\\nthe plaintiffs’ New York bank accounts to the defendants’ own accounts. The\\nUnited States District Court for the Southern District of New York (Daniels, J.) held\\nthat all but one of the schemes were impermissibly extraterritorial under either\\ncivil RICO, 18 U.S.C. § 1964(c), or the mail, wire, and bank fraud statutes the\\nplaintiffs cited as predicates to the civil RICO cause of action, 18 U.S.C. §§ 1341,\\n1343, and 1344. The court then found that the remaining scheme, standing alone,\\ndid not constitute a pattern of racketeering activity under RICO.\\n We hold that all but one of the schemes call for domestic applications of civil\\nRICO and the underlying mail, wire, and bank fraud statutes. Accordingly, we\\nREVERSE the judgment of the district court and REMAND for further\\nproceedings consistent with this opinion.\\n _________________\\n\\n ROBIN L. ALPERSTEIN (Jesse T. Conan, on the brief), Becker, Glynn,\\n Muffly, Chassin & Hosinski LLP, New York, NY, for Plaintiffs‐\\n Appellants.\\n\\n DAVID S. FLUGMAN (Jennifer M. Selendy, on the brief), Selendy &\\n Gay PLLC, New York, NY, for Defendants‐Appellees.\\n _________________\\n\\n\\n\\n\\n†Judge Margo K. Brodie of the United States District Court for the Eastern District of New\\nYork, sitting by designation.\\n\\n\\n\\n\\n 2\\n\\fWESLEY, Circuit Judge:\\n\\n This is the second time we have been asked to decide whether Jorge Yarur\\n\\nBascuñán and affiliated parties (collectively, “Bascuñán”) can sue his cousin\\n\\nDaniel Yarur Elsaca and affiliated parties (collectively, “Elsaca”) under civil\\n\\nprovisions of the Racketeer Influenced and Corrupt Organizations Act of 1970\\n\\n(“RICO”) for their role in an alleged network of transnational fraudulent schemes.\\n\\nThe first time this case was before us, we reversed an order of the United States\\n\\nDistrict Court for the Southern District of New York (Daniels, J.)1 dismissing\\n\\nBascuñán’s claims as impermissibly extraterritorial. We remanded for the court to\\n\\nconsider whether Bascuñán adequately pleaded a domestic injury in light of our\\n\\nopinion and any additional allegations in the then‐pending Second Amended\\n\\nComplaint (“SAC”).2 On remand, the district court dismissed the SAC, finding that\\n\\nit failed to allege a domestic injury under RICO, impermissibly relied on\\n\\nextraterritorial applications of RICO predicate statutes, and failed to adequately\\n\\nallege a continuous pattern of racketeering activity.3 For the following reasons, we\\n\\n\\n\\n1 See Bascuñan v. Elsaca, No. 15 Civ. 2009 (GBD), 2016 WL 5475998 (S.D.N.Y. Sept. 28, 2016).\\n2 See Bascuñán v. Elsaca (Bascuñán I), 874 F.3d 806 (2d Cir. 2017).\\n3 See Yarur Bascuñan v. Yarur Elsaca, 338 F. Supp. 3d 301 (S.D.N.Y. 2018).\\n\\n\\n\\n\\n 3\\n\\freverse the judgment of the district court and remand for further proceedings\\n\\nconsistent with this opinion.\\n\\n BACKGROUND\\n\\n Factual Background4\\n\\n Bascuñán is a resident and citizen of Chile. His grandfather founded Banco\\n\\nde Crédito e Inversiones (“BCI”), the third‐largest bank in Chile. His father was\\n\\nthe president and controlling shareholder of the bank. In the 1990s, Bascuñán\\n\\ninherited a large fortune from his parents (the “Bascuñán Estate,” or “Estate”)\\n\\nconsisting of numerous companies, financial property, a significant stake in BCI,\\n\\nand a large trust administered in New York. For reasons not relevant here,\\n\\nBascuñán was unable to manage his fortune at the time his parents died.\\n\\n In 1999, Bascuñán hired Elsaca, his cousin, to manage the Bascuñán Estate.\\n\\nElsaca is a citizen and resident of Chile and has a business degree from the London\\n\\nSchool of Economics. He is also a licensed accountant and prominent economist\\n\\nwho formerly led the Superintendencia de Valores y Seguros (de Chile), which the\\n\\n\\n\\n\\n4As this appeal arises from a dismissal under Rule 12(b)(6) of the Federal Rules of Civil\\nProcedure, we assume the allegations in the SAC to be true. See, e.g., Bascuñán I, 874 F.3d\\nat 810.\\n\\n\\n\\n\\n 4\\n\\fSAC describes as Chile’s equivalent of the U.S. Securities and Exchange\\n\\nCommission. Soon after Elsaca took the job, he and his attorney, Defendant José\\n\\nPedro Silva Prado (“Silva”), persuaded Bascuñán to grant Elsaca power of\\n\\nattorney, giving him “complete control” over Bascuñán’s finances. J.A. 615. Most\\n\\nnotably, Elsaca gained the ability to transfer the Estate’s property without\\n\\nobtaining Bascuñán’s authorization.\\n\\n The bulk of the SAC focuses on four sets of alleged schemes to steal and\\n\\nmisappropriate money from the Bascuñán Estate that Elsaca conducted\\n\\nindividually, with associates, and through alter‐ego shell corporations. In total, the\\n\\nSAC alleges that Elsaca stole at least $64 million.\\n\\n 1. The New York Trust Account Scheme\\n\\n The New York Trust Account Scheme involved the misappropriation of\\n\\nassets held in two trusts owned by the Estate. J.P. Morgan set up the “Afghan\\n\\nTrust” in the Cayman Islands in 1998—before Bascuñán hired Elsaca—and has\\n\\nsince administered it from New York, where the Afghan Trust’s J.P. Morgan bank\\n\\naccount is located. The Afghan Trust’s stated purpose was funding Bascuñán’s\\n\\ncharitable endeavors. In 2001, Elsaca asked UBS to set up the “Capri Star Trust.”\\n\\nCapri Star was also a Cayman Islands trust purportedly intended to support\\n\\n\\n\\n\\n 5\\n\\fBascuñán’s charitable endeavors. Elsaca funded the Capri Star Trust with money\\n\\nfrom the Afghan Trust that he placed in a UBS bank account located and\\n\\nadministered in New York.5 The only members of the Capri Star Trust Committee\\n\\nwere Elsaca and Silva.\\n\\n According to the SAC, the Capri Star Trust was a fraudulent enterprise, the\\n\\n“sole purpose” of which was “generat[ing] sham fees” for Elsaca and Silva. Id. at\\n\\n617. Elsaca named himself “Investment Advisor” in Capri Star Trust documents\\n\\nand set his advisory fee at 1% per year of the assets under management. He\\n\\nwithdrew his advisory fees by contacting UBS employees located in New York\\n\\nusing the mail or wires and authorizing them to send money from Capri Star’s\\n\\nNew York bank account to Elsaca’s own accounts. This conduct was fraudulent,\\n\\nthe SAC alleges, because Elsaca “provided no investment advice to the Capri Star\\n\\nTrust, whose assets were actively managed by UBS.” Id. at 618. In total, Elsaca\\n\\nordered at least seventeen transfers, totaling more than $2.7 million, from the\\n\\nCapri Star Trust to accounts and entities under his control.\\n\\n\\n\\n\\n5This critical allegation, along with the below‐described allegation that Elsaca authorized\\ntransfers out of this account by contacting UBS employees in New York via the mail and\\nwires, was missing from the First Amended Complaint (“FAC”) for reasons noted below.\\n\\n\\n\\n\\n 6\\n\\f Bascuñán also alleges that Elsaca used the Capri Star Trust Account to\\n\\ngenerate sham legal fees for Silva’s law firm. Beginning in October 2001, Silva\\n\\nbiannually mailed a $20,000 invoice for allegedly fictitious legal work to the Capri\\n\\nStar Trust. Elsaca then used the mail or wires to authorize UBS employees in New\\n\\nYork to transfer money from Capri Star’s New York bank account to Silva’s firm.\\n\\nIn 2005, Elsaca faxed a letter to UBS authorizing these biannual payments on a\\n\\nstanding basis. Additionally, in 2001, Elsaca authorized a one‐time wire transfer\\n\\nof $90,000 from Capri Star’s New York bank account to Silva. In total, Elsaca sent\\n\\nSilva “at least $390,000.” Id. at 621.\\n\\n 2. The Anacapri Investment Fund Scheme\\n\\n The Anacapri Investment Fund Scheme involved four sub‐schemes by\\n\\nwhich Elsaca and others allegedly stole over $60 million from the Bascuñán Estate.\\n\\nAt the center of this activity was the ANACAPRI Private Investment Fund\\n\\n(“Anacapri”), created by Elsaca in 2003. Elsaca funded Anacapri with $48 million\\n\\nfrom three of Bascuñán’s other companies.6\\n\\n\\n\\n\\n6 Those companies are Plaintiffs‐Appellants Inmobiliaria Milano S.A., Inmobiliaria e\\nInversiones Tauro S.A., and Inversiones T & V S.A.\\n\\n\\n\\n\\n 7\\n\\f i. The Fintair Misappropriation. Around June 2003, when the Estate owned\\n\\nAnacapri, Elsaca “caused Anacapri to acquire” Defendant‐Appellee Fintair\\n\\nFinance Corp., a British Virgin Islands (“BVI”) corporation that Elsaca owned and\\n\\nhad formed earlier that year. Id. at 624. This acquisition made Fintair part of the\\n\\nBascuñán Estate.7 The SAC alleges that between 2003 and 2009, Elsaca falsely\\n\\nrepresented to Morgan Stanley that he, rather than the Bascuñán Estate, owned\\n\\nFintair. Under this guise, Elsaca opened a New York‐based Morgan Stanley bank\\n\\naccount in Fintair’s name and transferred $37,850,000 from the Bascuñán Estate\\n\\ninto the account.8 The transfers were directed through Defendant‐Appellee GM &\\n\\nE Asset Management S.A. (“GM&E”), a Chilean corporation owned by\\n\\nDefendants‐Appellees Cary Equity’s Corp. and Hay’s Finance Corp., which are\\n\\nthemselves BVI corporations owned and controlled by Elsaca.9 Elsaca then sent\\n\\nmoney from Fintair’s New York bank account to himself and others in\\n\\n\\n\\n7 This critical allegation was missing from the FAC for reasons noted below.\\n8As the district court noted, the SAC does not indicate where the funds were located\\nbefore Elsaca transferred them to Fintair.\\n9 Defendant‐Appellee Cristían Jara Taito, a Chilean citizen, participated in the Fintair\\nscheme in his capacity as GM&E’s general manager. Defendant‐Appellee Oscar Bretón\\nDieguez, also a Chilean citizen, participated in his capacity as a member of Anacapri’s\\noversight committee.\\n\\n\\n\\n\\n 8\\n\\fapproximately 500 separate transfers and check deposits. Elsaca transferred\\n\\naround $30 million of these funds to the New York‐based Morgan Stanley bank\\n\\naccount of Defendant‐Appellee Euweland Corp., a BVI corporation owned and\\n\\ncontrolled by Elsaca. Other transferees included Elsaca, Silva, Defendant‐Appellee\\n\\nCristían Jara Taito, Hay’s, and GM&E, along with several nonparties affiliated\\n\\nwith these individuals and entities.\\n\\n ii. The BCI Share Theft Scheme. The Bascuñán Estate owned 1.47% of BCI,\\n\\nthe Chilean bank that Bascuñán’s father had controlled prior to his death. The\\n\\nEstate held its interest via Plaintiff‐Appellant Hofstra Corp., a BVI corporation that\\n\\nowned Plaintiff‐Appellant Tarascona Corp., a BVI corporation that owned the\\n\\nshares. The SAC alleges that in 2007, when the shares were worth approximately\\n\\n$47 million, Elsaca or one of his agents traveled to New York to steal the physical\\n\\nbearer shares from Hofstra’s safety deposit box. Elsaca subsequently registered the\\n\\nshares in the name of Nueva T Corp., a BVI corporation he had recently created.\\n\\nHe then directed associates to issue shares of Nueva T to Euweland, another\\n\\nElsaca‐owned corporation. Two weeks later, Elsaca “caused the [Bascuñán] Estate\\n\\nto purchase” shares of Nueva T from Euweland using $43 million in Anacapri\\n\\n\\n\\n\\n 9\\n\\ffunds. Id. at 631. The allegation is effectively that Elsaca stole the shares from\\n\\nBascuñán and then sold them back to him.\\n\\n iii. The Sham Anacapri Sale. Next, the SAC alleges that in 2009, Elsaca\\n\\n“misappropriated Anacapri,” and thus its asset Fintair, which held Estate funds in\\n\\nits New York bank account. Id. at 634. It did this by “caus[ing Bascuñán’s\\n\\ncompanies] to sell their stakes in Anacapri to [Defendant‐Appellee Agrícola e\\n\\nInmobiliaria Chauquén Limitada],” a Chilean corporation owned by Elsaca. Id.\\n\\nThe sale was for roughly $7.5 million, but Anacapri’s assets had a book value of\\n\\naround $21.5 million.10 In effect, the allegation is that Elsaca “sold” Anacapri to his\\n\\nshell company at a $14 million discount.\\n\\n iv. The Sham Management Fees. Bascuñán also alleges that between 2000\\n\\nand 2009, Elsaca paid himself approximately $16 million in sham management fees\\n\\nfrom Anacapri. Bascuñán claims Elsaca transferred this money from unknown\\n\\naccounts to several New York‐based Morgan Stanley bank accounts owned by\\n\\nGM&E, a shell corporation that Elsaca indirectly owned.\\n\\n\\n\\n\\n10 Bascuñán is uncertain of Anacapri’s actual value at the time.\\n\\n\\n\\n\\n 10\\n\\f 3. The Tarascona Misappropriation\\n\\n The SAC alleges that between 1999 and 2004, Elsaca opened and maintained\\n\\neleven New York‐based Morgan Stanley bank accounts in Tarascona’s name for\\n\\nthe purpose of misappropriating Estate funds. According to the SAC, Elsaca\\n\\nfalsely represented to Morgan Stanley that he owned Tarascona, when in fact the\\n\\nEstate owned it. He then transferred Tarascona’s money into the accounts of his\\n\\nown corporations. For example, he sent over $2 million in 333 transfers to the ten\\n\\nor more New York bank accounts belonging to Hay’s.\\n\\n 4. The BCI Dividend Misappropriation\\n\\n Finally, Bascuñán alleges that Elsaca and his associates misappropriated\\n\\nover $3.5 million in dividends earned on the BCI shares by diverting them to\\n\\nEstate‐owned New York bank accounts, including the Fintair account, and then\\n\\ntaking the funds.\\n\\n ***\\n\\n Bascuñán alleges that he was unaware of Elsaca’s schemes when they\\n\\noccurred and that Elsaca never provided him a true accounting of the Estate’s\\n\\nassets. In late 2009, Bascuñán discovered that Elsaca had drafted Bascuñán’s will\\n\\nin a manner that would have allowed Elsaca to control the Estate in perpetuity.\\n\\n\\n\\n\\n 11\\n\\fBascuñán soon severed ties with Elsaca. Over the following years, Bascuñán and\\n\\nvarious auditors uncovered Elsaca’s alleged fraud. The SAC alleges that Bascuñán\\n\\nremains unaware of the full extent of the fraud because Elsaca and his associates\\n\\nhave refused to cooperate with his investigations.11\\n\\n Litigation History\\n\\n Bascuñán filed this lawsuit in the United States District Court for the\\n\\nSouthern District of New York and filed his First Amended Complaint (“FAC”)\\n\\nshortly thereafter. Following an appeal and remand described below, Bascuñán\\n\\nfiled the currently operative SAC.\\n\\n The SAC states five claims under federal and state law. Count 1 alleges that,\\n\\nthrough the above‐described conduct, all Defendants violated 18 U.S.C. § 1962(c),\\n\\na substantive provision of RICO prohibiting individuals from conducting an\\n\\nenterprise through a pattern of racketeering activity. Seeking relief under 18 U.S.C.\\n\\n§ 1964(c), a private right of action commonly known as “civil RICO,” Bascuñán\\n\\nalleges that all Defendants engaged in four categories of racketeering activity, or\\n\\n\\n\\n\\n11The SAC alleges that Chilean authorities prosecuted Elsaca for misappropriation in\\nrelation to some of the above‐described conduct. A divided court acquitted him but found\\nhis conduct “constituted a non‐compliance of civil obligations.” Id. at 652.\\n\\n\\n\\n\\n 12\\n\\f“predicates”: (1) mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343; (2)\\n\\nmoney laundering in violation of 18 U.S.C. §§ 1956 and 1957; (3) bank fraud in\\n\\nviolation of 18 U.S.C. § 1344; and (4) violations of the Travel Act, 18 U.S.C. § 1952.\\n\\nCount 2 alleges that all Defendants violated 18 U.S.C. § 1962(d), another of RICO’s\\n\\nsubstantive provisions, by knowingly conspiring to commit the same unlawful\\n\\npredicates. Count 3 is a state‐law claim for unjust enrichment against all\\n\\nDefendants. Count 4 is a state‐law constructive‐trust claim against all Defendants.\\n\\nCount 5 asks the court to order Elsaca to provide an accounting of the full scope\\n\\nof his alleged misappropriation.\\n\\n Earlier in this litigation, the district court dismissed the FAC, which stated\\n\\nsimilar claims, under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See\\n\\nBascuñan, No. 15 Civ. 2009 (GBD), 2016 WL 5475998, at *1. It principally found that\\n\\nthe claims involved extraterritorial conduct that was beyond RICO’s reach. Id. In\\n\\nRJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016), the Supreme Court\\n\\nheld that RICO’s private right of action, contained in § 1964, does not overcome\\n\\nthe presumption against extraterritoriality, and therefore in order to state a claim\\n\\nunder the statute, a plaintiff must allege a domestic injury. Interpreting that\\n\\ndecision, the district court held that Bascuñán had failed to allege a domestic injury\\n\\n\\n\\n\\n 13\\n\\fas required by § 1964 because he “resided” in Chile when he sustained the “injury”\\n\\nin question. Bascuñan, No. 15 Civ. 2009 (GBD), 2016 WL 5475998, at *5–6. The court\\n\\nalso denied Bascuñán’s motion for leave to file the then‐pending SAC. Id. at *6\\n\\nn.16.\\n\\n We reversed in Bascuñán I. Rejecting the district court’s residency test, we\\n\\nheld that “when a foreign plaintiff [alleging a civil RICO injury] maintains tangible\\n\\nproperty in the United States, the misappropriation of that property constitutes a\\n\\ndomestic injury.” Bascuñán I, 874 F.3d at 814. Applying our rule to the versions of\\n\\nthe BCI Dividend and Anacapri Investment Fund schemes stated in the FAC, we\\n\\nfound no domestic injury because the only domestic aspect of these allegations\\n\\nwas that Elsaca transferred stolen funds into domestic bank accounts. Id. at 818.\\n\\nHowever, we held that the New York Trust Account and BCI Share Theft schemes\\n\\ninvolved domestic injuries because those allegations concerned property that was\\n\\ntaken out of bank accounts physically located in the United States. Id. We\\n\\naccordingly reversed the district court’s judgment dismissing the FAC, vacated its\\n\\norder denying Bascuñán’s motion for leave to file his SAC, and remanded for\\n\\nfurther proceedings. Id. at 825.\\n\\n\\n\\n\\n 14\\n\\f On remand, Bascuñán filed the SAC. He contends that he had not known at\\n\\nthe time of filing the FAC that “[the] defendants opened and maintained\\n\\napproximately 31 accounts at Morgan Stanley in New York between 1999 and at\\n\\nleast 2012.” District Court Docket, ECF No. 65 at 4. Unlike the FAC, the SAC\\n\\ncontains the above‐described allegations that, with respect to the BCI Dividend\\n\\nMisappropriation and Anacapri Investment Fund schemes, the Defendants\\n\\nperpetrated their fraud by repeatedly stealing money out of the Estate’s Morgan\\n\\nStanley bank accounts in New York. Additionally, the SAC contained new\\n\\nallegations that Fintair (and, thus, its New York bank account) was part of the\\n\\nEstate between 2003 and 2009, a fact Bascuñán had not previously known and that\\n\\nElsaca conceded in a 2016 declaration. See J.A. 240–41.\\n\\n Elsaca again moved to dismiss under Rule 12(b)(6). As relevant here, he\\n\\nargued (1) that Bascuñán failed to allege a domestic injury with respect to much of\\n\\nElsaca’s conduct, (2) that although the New York Trust Account Scheme involved\\n\\na domestic RICO injury, the claim relied on impermissibly extraterritorial\\n\\napplications of the RICO predicate statutes, and (3) that whichever schemes\\n\\nsurvived an extraterritoriality analysis did not amount to a continuous pattern of\\n\\nracketeering activity as required under RICO. See Yarur Bascuñan, 338 F. Supp. 3d\\n\\n\\n\\n\\n 15\\n\\fat 306–07. The district court agreed on all three grounds, declined to exercise\\n\\nsupplemental jurisdiction over the state‐law claims, and dismissed the SAC in its\\n\\nentirety. See id. at 307, 316–17. Bascuñán timely appealed.\\n\\n DISCUSSION\\n\\n This appeal brings us to the intersection of civil RICO and the presumption\\n\\nagainst extraterritoriality, a prescriptive comity doctrine and canon of statutory\\n\\nconstruction that limits the reach of federal statutes to domestic conduct unless\\n\\nthey purport to apply to extraterritorial conduct. See In re Picard, Tr. for Liquidation\\n\\nof Bernard L. Madoff Inv. Sec. LLC, 917 F.3d 85, 95 (2d Cir. 2019). As the Supreme\\n\\nCourt explained in RJR Nabisco, “[t]he question of RICO’s extraterritorial\\n\\napplication really involves two questions. First, do RICO’s substantive\\n\\nprohibitions, contained in § 1962, apply to conduct that occurs in foreign\\n\\ncountries? Second, does RICO’s private right of action, contained in § 1964(c),\\n\\napply to injuries that are suffered in foreign countries?” 136 S. Ct. at 2099.\\n\\n To resolve this appeal, we must decide (1) whether the conduct violating the\\n\\npredicate statutes was extraterritorial, (2) whether the application of civil RICO to\\n\\nBascuñán’s alleged injuries (i.e., the fraudulent schemes) is extraterritorial, and (3)\\n\\nwhether the surviving schemes amount to a pattern of racketeering activity. The\\n\\n\\n\\n\\n 16\\n\\fdistrict court faulted different aspects of the SAC on all three issues. We begin, as\\n\\ndid the parties and the district court, with the second issue.\\n\\n I. All but One of Bascuñán’s Injuries Are Domestic Under § 1964(c).\\n\\n We review de novo a district court’s grant of a motion to dismiss under\\n\\nFederal Rule of Civil Procedure 12(b)(6), accepting all factual allegations in the\\n\\ncomplaint as true and drawing all reasonable inferences in favor of the plaintiff.\\n\\nCaro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010). The Supreme Court has directed\\n\\nus to employ a “two‐step framework” where, as here, a case implicates\\n\\nextraterritoriality issues. “At the first step, we ask whether the presumption\\n\\nagainst extraterritoriality has been rebutted—that is, whether the statute gives a\\n\\nclear, affirmative indication that it applies extraterritorially. . . . If the statute is not\\n\\nextraterritorial, then at the second step we determine whether the case involves a\\n\\ndomestic application of the statute.” RJR Nabisco, 136 S. Ct. at 2101.\\n\\n The Supreme Court has already held that civil RICO does not rebut the\\n\\npresumption against extraterritoriality. Id. at 2111. Therefore, “[t]he . . . question\\n\\non appeal subject to our de novo review . . . is whether Bascuñán plausibly alleged\\n\\na domestic injury to business or property.” Bascuñán I, 874 F.3d at 814. Whether an\\n\\ninjury is domestic “will, as a general matter, depend on the particular facts alleged\\n\\n\\n\\n\\n 17\\n\\fin each case.” Id. at 817–18. Absent extraordinary circumstances, “when a foreign\\n\\nplaintiff maintains tangible property in the United States, the misappropriation of\\n\\nthat property constitutes a domestic injury.” Id. at 814; see id. at 820.\\n\\n In Bascuñán I, we held based on the allegations in the FAC that the BCI Share\\n\\nTheft and New York Trust Account schemes involved domestic injuries because\\n\\nthey “allege[d] that certain property—although belonging to a foreign owner—\\n\\nwas located within the United States when it was stolen.” Id. at 820. We found that\\n\\nthe BCI Share Theft injury occurred in New York because Bascuñán claimed that\\n\\nElsaca stole physical bearer shares from a New York safety deposit box. See id. at\\n\\n824. The New York Trust Account Scheme involved financial, rather than tangible,\\n\\nproperty. Id. at 822. But we rejected any distinction between these categories,\\n\\nfinding that the misappropriation of funds held in a bank account is “analogous\\n\\nto an injury to tangible property . . . [meaning] property that can be fairly said to\\n\\nexist in a precise location.” Id. at 820. Because the bank accounts were located inside\\n\\nthe United States, the alleged theft of funds deposited in those accounts was\\n\\ndomestic conduct. Id. at 823.\\n\\n By contrast, the remaining schemes concerned property that was located\\n\\noutside the United States when it was allegedly misappropriated. We affirmed the\\n\\n\\n\\n\\n 18\\n\\fcourt’s finding that those schemes were impermissibly extraterritorial as pleaded\\n\\nin the FAC, emphasizing that “the use of bank accounts located within the United\\n\\nStates to facilitate or conceal the theft of property located outside of the United\\n\\nStates does not, on its own, establish a domestic injury.” See id. at 819.12\\n\\n As Elsaca has not argued to the contrary in either the district court or this\\n\\nCourt, we find that the New York Trust Account and BCI Share Theft schemes as\\n\\npleaded in the SAC continue to allege domestic conduct. See, e.g., Yarur Bascuñan,\\n\\n338 F. Supp. 3d at 314 (“Defendants concede that the alleged misappropriation of\\n\\nfunds from the Afghan Trust in New York for the purpose of generating sham fees\\n\\nsatisfies RICO’s domestic injury requirement.”). Because Bascuñán I held that most\\n\\nof the remaining injuries were extraterritorial as alleged in the FAC, the key\\n\\nquestion here is whether the SAC’s newly pleaded allegations assert the necessary\\n\\ndomestic nexus.\\n\\n\\n\\n\\n12Bascuñán I did not address the Tarascona Misappropriation Scheme because it was not\\npleaded in the FAC. See id. at 819 n.53.\\n\\n\\n\\n\\n 19\\n\\f The Fintair Misappropriation Involved a Domestic\\n Injury.\\n\\n The crux of the Fintair allegation is that Elsaca caused Anacapri to acquire\\n\\nFintair, opened a New York‐based Morgan Stanley bank account in Fintair’s name,\\n\\nfilled the account with money from the Estate’s presumably foreign accounts, and\\n\\nthen sent this money from the New York bank account to himself and others in\\n\\nroughly 500 transfers. Unlike the SAC, the FAC at issue in Bascuñán I did not allege\\n\\nthat the Bascuñán Estate owned Fintair or that Elsaca transferred Bascuñán’s\\n\\nmoney out of a domestic bank account.\\n\\n Both sides agree that Bascuñán’s injuries occurred at the times of the alleged\\n\\nthefts or misappropriations. The dispute is over when the theft or misappropriation\\n\\noccurred and, transitively, where the funds were located when Elsaca stole them.\\n\\nElsaca maintains that any theft or misappropriation occurred when Elsaca moved\\n\\nEstate funds from Bascuñán’s foreign bank accounts into Bascuñán’s New York\\n\\nFintair account. Thus, he concludes, Bascuñán’s injury took place abroad.\\n\\nBascuñán argues that this initial transfer to Fintair was simply a transfer from one\\n\\nEstate account to another because the Estate owned Fintair and its New York bank\\n\\naccount. On that basis, he concludes that the theft and misappropriation occurred\\n\\n\\n\\n\\n 20\\n\\fwhen Elsaca subsequently made the roughly 500 transfers from Fintair’s New\\n\\nYork bank account, as only then did the money leave the Estate. Under this theory,\\n\\nthe injury occurred in the United States.\\n\\n We agree with Bascuñán. The Estate owned Fintair when Elsaca transferred\\n\\nmoney into and out of its New York bank account, a fact Elsaca conceded in a\\n\\ndeclaration he submitted to the district court. See J.A. 240–41 (stating that from\\n\\n2003 through 2009, “Fintair was owned by [Bascuñán]”). Thus, Elsaca’s transfers\\n\\nof the Estate’s money into Fintair’s New York bank account were simply transfers\\n\\nfrom one Bascuñán account to another, made by an individual who had the\\n\\ncolorable authority to order these transfers under his broad power of attorney. The\\n\\nalleged theft or misappropriation occurred when the funds left the Estate, at which\\n\\ntime they were located in a Morgan Stanley bank account in New York.\\n\\n Adopting Elsaca’s theory would effectively require us to conclude that the\\n\\nBascuñán Estate stole money from itself. Although Bascuñán was unaware that\\n\\nElsaca had opened the Fintair account and filled it with the Estate’s money,\\n\\nBascuñán nonetheless owned the account through his ownership of Fintair. The\\n\\nSAC supports a reasonable inference that he could have accessed the funds at any\\n\\n\\n\\n\\n 21\\n\\ftime had he known about the account.13 It is possible that Elsaca violated some\\n\\nfiduciary duty by transferring funds from foreign Estate accounts into the New\\n\\nYork Fintair account.14 But the SAC leaves little doubt that the injury Bascuñán\\n\\npleads is that Elsaca stole the Estate’s money, not that he improperly moved it.15\\n\\n Our conclusion that Bascuñán adequately pleaded a domestic injury is\\n\\nreinforced by our jurisprudence surrounding fraud offenses, and particularly the\\n\\nlaw of embezzlement, which the Supreme Court has described as the “linguistic\\n\\nneighbor” of fraud. See Bullock v. BankChampaign, N.A., 569 U.S. 267, 274 (2013). An\\n\\n\\n\\n13Indeed, the SAC suggests that Elsaca’s decision to initially move the $37,850,000 of\\nEstate funds into the Fintair account was an integral part of the scheme. The allegation is\\nnot that Elsaca stole the money all at once, but that he slowly siphoned it from Fintair\\ninto a network of shell corporations in more than 500 separate transfers taking place over\\nmany years.\\n14 Elsaca’s argument for affirmance on this theory is conclusory and provides no\\npersuasive basis for us to find that any fiduciary violation amounted to the theft or\\nmisappropriation alleged in the SAC. For this reason, and because we affirmatively\\nconclude that the theft and misappropriation occurred when Elsaca transferred funds out\\nof the Fintair account, we express no opinion on whether Elsaca’s transfers from one\\nEstate account to another were unlawful.\\n15For similar reasons, we disagree with the district court’s view that “the SAC alleges [at\\nmost] that banks located in New York were used to facilitate or conceal the theft of\\nproperty taken from outside the United States.” Yarur Bascuñan, 338 F. Supp. 3d at 313\\n(emphasis omitted). The money left the Estate when Elsaca transferred it out of Fintair’s\\nNew York bank account and into his own accounts. This is a misappropriation of\\nproperty located inside the United States, not the mere use of a domestic account to\\nfacilitate or conceal a misappropriation that had previously occurred.\\n\\n\\n\\n\\n 22\\n\\findividual traditionally commits embezzlement “when he: (1) with intent to\\n\\ndefraud; (2) converts to his own use; (3) property belonging to another, in a\\n\\nsituation where (4) the property initially lawfully came within his possession or\\n\\ncontrol.” United States v. Sampson, 898 F.3d 270, 277 (2d Cir. 2018). The crime of\\n\\nembezzlement therefore “builds on the concept of conversion,” which “involves\\n\\nan act of control or dominion over the property that seriously interferes with the\\n\\nowner’s rights.” United States v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986); see also\\n\\nBullock, 569 U.S. at 274 (“[A]s commonly used, ‘embezzlement’ requires\\n\\nconversion.”). And as the Fourth Circuit has noted, “[t]here can, of course, be no\\n\\ninterference with the owner’s rights to the property if the owner has given\\n\\npermission to the act in question.” Id.\\n\\n Elsaca conceded at oral argument that, until he transferred the funds from\\n\\nEstate accounts to his own personal accounts, he was acting lawfully pursuant to\\n\\nhis broad power of attorney, i.e., the permission granted to him by Bascuñán.\\n\\nMoreover, according to the SAC, until Elsaca transferred those funds, Bascuñán\\n\\ncould have accessed the Estate accounts in New York. Thus, it follows that\\n\\nBascuñán was not injured until Elsaca interfered with Estate property and\\n\\nconverted it to his own use in the United States. This conclusion accords with our\\n\\n\\n\\n\\n 23\\n\\fdecision in McCarthy, where we held that a certified public accountant completed\\n\\nthe crime of embezzlement when he, without authorization, transferred funds from\\n\\ntrust accounts into personal accounts that he controlled. United States v. McCarthy, 271\\n\\nF.3d 287, 395 (2d Cir. 2001).\\n\\n Once we recognize that Bascuñán’s injuries occurred when Elsaca\\n\\ntransferred money out of the New York Fintair account, the Fintair\\n\\nMisappropriation Scheme looks almost exactly like the New York Trust Account\\n\\nScheme. For each of them, Bascuñán alleges that Elsaca stole money from a New\\n\\nYork bank account belonging to the Estate. See Bascuñán I, 874 F.3d at 820.\\n\\nMoreover, Bascuñán I noted that “[f]oreign persons and entities that own private\\n\\nproperty located within the United States expect that our laws will protect them\\n\\nin the event of damage to that property. That modest expectation is entirely\\n\\njustified, especially when we consider that a foreign resident’s property located in\\n\\nthe United States is otherwise subject to all of the regulations imposed on private\\n\\nproperty by American state and federal law.” Id. at 821. In assessing the New York\\n\\nTrust Account Scheme, Bascuñán I held that this allegation states a domestic\\n\\ninjury—the theft of property located inside the United States. See id. at 823. The\\n\\nsame conclusion applies here.\\n\\n\\n\\n\\n 24\\n\\f The Tarascona Misappropriation Involved a\\n Domestic Injury.\\n\\n This logic also applies to the Tarascona Misappropriation. The SAC alleges\\n\\nthat Elsaca opened eleven New York bank accounts in Tarascona’s name, filled\\n\\nthem with money from the Estate’s foreign accounts, and over time transferred the\\n\\nmoney out of the Estate. It also alleges that the Estate owned Tarascona and its\\n\\nbank accounts. Thus, the transfers to Tarascona’s New York accounts were intra‐\\n\\nEstate transfers, and the theft occurred when Elsaca transferred the money out of,\\n\\nnot into, those accounts. These are domestic injuries.\\n\\n The Sham Anacapri Sale Involved a Domestic\\n Injury.\\n\\n The Sham Anacapri Sale allegation is that Elsaca caused Bascuñán’s\\n\\ncompanies to sell their stakes in Anacapri—at one third of their book value—to a\\n\\nChilean corporation owned by Elsaca. Bascuñán claims that this fraudulent sale\\n\\nconstituted a domestic injury because Anacapri owned Fintair, Fintair’s assets\\n\\nwere held in a New York bank account, and the unlawful sale thus involved the\\n\\n\\n\\n\\n 25\\n\\ftheft or misappropriation of property located in the United States. We agree to the\\n\\nextent that Bascuñán alleges a misappropriation through the sale of Fintair.16\\n\\n The BCI Dividend Misappropriation Involved a\\n Domestic Injury.\\n\\n The BCI Dividend Misappropriation allegation is that Elsaca stole dividends\\n\\nearned on the BCI shares by diverting them to the Fintair account and then\\n\\nwithdrawing them for personal use. For the reasons stated above, the injuries\\n\\noccurred when Elsaca stole money from a New York bank account. Again, the\\n\\nEstate’s New York accounts did not merely facilitate the fraud but were instead\\n\\nthe targets of the fraud. These injuries thus satisfy RICO’s domestic‐injury\\n\\nrequirement to the extent Bascuñán alleges that the dividends were diverted to\\n\\nFintair’s New York account and then misappropriated through the sale of Fintair.\\n\\n As Alleged, the Sham Management Fees Scheme\\n Did Not Involve a Domestic Injury.\\n\\n Bascuñán concedes that he does not know where the injuries caused by the\\n\\nSham Management Fees Scheme took place because he does not know the\\n\\n\\n\\n16In his brief, Elsaca does not argue that the assets Fintair held in New York constituted\\nonly a small percentage of Anacapri’s total assets at the time of the Anacapri sale. Thus,\\nwe are not asked to determine the location of Bascuñán’s injury based on the distribution\\nof Anacapri’s assets abroad.\\n\\n\\n\\n\\n 26\\n\\flocations of the accounts from which Elsaca withdrew the relevant funds. He asks\\n\\nthat we remand on this issue to allow discovery on the locations of the accounts.\\n\\nBecause the SAC does not allege that these injuries took place in the United States,\\n\\nthe district court correctly held that this scheme is impermissibly extraterritorial\\n\\nas pleaded. However, should Bascuñán learn additional facts during discovery\\n\\nindicating that these injuries were domestic, the court in its discretion may allow\\n\\nhim to allege these facts in an amended complaint.\\n\\n ***\\n\\n In sum, each of the injuries alleged in the SAC, except for the Sham\\n\\nManagement Fees Scheme, calls for a domestic application of civil RICO.\\n\\n II. The Mail, Wire, and Bank Fraud Statutes Focus on Domestic Conduct\\n as Applied to the Remaining Alleged Schemes to Defraud.\\n\\n The next issue is whether the civil RICO claims involve domestic\\n\\napplications of the relevant predicate statutes. RJR Nabisco, 136 S. Ct. at 2101. The\\n\\npredicates and their corresponding statutes are: (1) mail and wire fraud, 18 U.S.C.\\n\\n§§ 1341 and 1343; (2) money laundering, id. §§ 1956 and 1957; (3) bank fraud, id.\\n\\n§ 1344; and (4) violations of the Travel Act, id. § 1952.\\n\\n\\n\\n\\n 27\\n\\f The Mail and Wire Fraud Statutes Regulate\\n Domestic Conduct as Applied to the Alleged\\n Schemes to Defraud.\\n\\n As outlined above, extraterritoriality concerns give way when “either the\\n\\nstatute indicates its extraterritorial reach or the case involves a domestic\\n\\napplication of the statute.” In re Picard, 917 F.3d at 95. The mail and wire fraud\\n\\nstatutes do not indicate an extraterritorial reach. See European Cmty. v. RJR Nabisco,\\n\\nInc., 764 F.3d 129, 141 (2d Cir. 2014), rev’d on other grounds, 136 S. Ct. 2090 (2016).\\n\\nThus, Bascuñán can employ them only if they apply to domestic conduct on these\\n\\nfacts. We therefore must determine whether the conduct relevant to their “focus”\\n\\noccurred in the United States. See In re Picard, 917 F.3d at 96 (quoting RJR Nabisco,\\n\\n136 S. Ct. at 2101). “The focus of a statute is the conduct it seeks to regulate, as well\\n\\nas the parties whose interests it seeks to protect.” Id. at 97.\\n\\n 1. The Mail and Wire Fraud Statutes Focus on\\n Domestic Conduct when the Use of Domestic\\n Mail or Wires Was a Core Component of the\\n Scheme to Defraud.\\n\\n The mail and wire fraud statutes, whose labyrinthine language is better\\n\\ntaken abridged, “criminalize the use of the mails or wires in furtherance of ‘any\\n\\nscheme or artifice to defraud, or for obtaining money or property by means of false\\n\\n\\n\\n\\n 28\\n\\for fraudulent pretenses, representations, or promises.’” Skilling v. United States,\\n\\n561 U.S. 358, 369 n.1 (2010) (quoting 18 U.S.C. § 1341 (mail fraud); id. § 1343 (wire\\n\\nfraud)). “Because the mail fraud and the wire fraud statutes use the same relevant\\n\\nlanguage, we analyze them the same way.” United States v. Weaver, 860 F.3d 90, 94\\n\\n(2d Cir. 2017) (citation omitted).\\n\\n The “focus” of these statutes for the purpose of the presumption against\\n\\nextraterritoriality is a question of first impression in our circuit. See European Cmty.,\\n\\n764 F.3d at 142–43 & n.14. The district court, relying on other district court\\n\\nopinions, concluded that both statutes focus on the “scheme to defraud,” which\\n\\nmust have been “planned, managed, and directed” from within the United States.\\n\\nYarur Bascuñan, 338 F. Supp. 3d at 314–15. Elsaca agrees. The courts in this circuit\\n\\nare not of one mind on the focus of these statutes.17 It will come as no surprise that\\n\\n\\n17See, e.g., United States v. Gasperini, No. 16 Crim. 441 (NGG), 2017 WL 2399693, at *8\\n(E.D.N.Y. June 1, 2017) (“[A] complaint alleges a domestic application of wire fraud when\\n(1) a defendant or coconspirator commits a substantial amount of conduct in the United\\nStates, (2) the conduct is integral to the commission of the scheme to defraud, and (3) at\\nleast some of the conduct involves the use of U.S. wires in furtherance of the scheme to\\ndefraud.” (citation omitted)); United States v. Hawit, No. 15 Crim. 252 (PKC), 2017 WL\\n663542, at *5 (E.D.N.Y. Feb. 17, 2017) (“[I]n a given case, a court must conduct a more\\nholistic assessment of the conduct that constitutes the alleged fraud scheme, including\\nconsideration of whether the scheme involves only incidental or minimal use of U.S.\\nwires.”); Reich v. Lopez, 38 F. Supp. 3d 436, 448 (S.D.N.Y. 2014) (“As long as enough\\n\\n\\n\\n\\n 29\\n\\fBascuñán proposes several alternative theories drawn from other lower court\\n\\nopinions within the circuit.\\n\\n Because the focus of a statute includes the conduct it seeks to regulate, see In\\n\\nre Picard, 917 F.3d at 97, our analysis begins by identifying that conduct. There are\\n\\nthree “essential elements” to mail or wire fraud: “(1) a scheme to defraud, (2)\\n\\nmoney or property as the object of the scheme, and (3) use of the mails or wires to\\n\\nfurther the scheme.” Weaver, 860 F.3d at 94 (citation omitted, emphasis added). These\\n\\nelements make clear that the regulated conduct is not merely a “scheme to\\n\\ndefraud,” but more precisely the use of the mail or wires in furtherance of a scheme to\\n\\ndefraud.\\n\\n At least three of our sister circuits, though not in the context of applying the\\n\\npresumption against extraterritoriality, have described the focus of these statutes\\n\\n\\n\\n\\ndomestic conduct exists to fulfill the requirements of . . . wire fraud, it is irrelevant that\\nthose statutes are further violated by conduct that is extraterritorial in nature.”), aff’d, 858\\nF.3d 55 (2d Cir. 2017).\\n\\n\\n\\n\\n 30\\n\\fin substantially identical terms.18 The Supreme Court has done the same for over\\n\\na century.19\\n\\n While this principle guides our approach to the domestic‐conduct question,\\n\\nwe are mindful that “events . . . merely incidental to the [violation of a statute]” do\\n\\nnot have “primacy for the purposes of the extraterritoriality analysis.” WesternGeco\\n\\nLLC v. ION Geophysical Corp., 138 S. Ct. 2129, 2138 (2018); see also Morrison v. Nat’l\\n\\nAustl. Bank Ltd., 561 U.S. 247, 266 (2010) (“[T]he presumption against\\n\\nextraterritorial application would be a craven watchdog indeed if it retreated to its\\n\\n\\n18 See, e.g., United States v. Garlick, 240 F.3d 789, 792 (9th Cir. 2001) (“The focus of the mail\\nand wire fraud statutes is upon the misuse of the instrumentality of communication.”\\n(brackets omitted) (quoting United States v. Alston, 609 F.2d 531, 536 (D.C. Cir. 1979)));\\nUnited States v. Jefferson, 674 F.3d 332, 366 (4th Cir. 2012) (“In a mail or wire fraud\\nprosecution, the mailing or wire transmission itself—i.e., misuse of the mail or wire—has\\nconsistently been viewed as the actus reus that is punishable by federal law.”). Although\\nit did so in an unpublished decision under plain‐error review, the Ninth Circuit has held\\nin the context of applying the presumption against extraterritoriality that the conduct the\\nwire fraud statute seeks to regulate is not “the scheme to defraud,” but “the misuse of the\\ninstrumentality of communication.” United States v. Driver, 692 F. App’x 448, 449 (9th Cir.\\n2017) (summary order), cert. denied, 138 S. Ct. 1304 (2018).\\n19 See, e.g., Skilling, 561 U.S. at 369 n.1 (“The mail‐ and wire‐fraud statutes criminalize the\\nuse of the mails or wires in furtherance of any scheme or artifice to defraud . . . .” (citation\\nand quotation marks omitted)); Badders v. United States, 240 U.S. 391, 393 (1916) (Holmes,\\nJ.) (rejecting an argument that the use of mail was “a mere incident of a fraudulent scheme\\nthat itself is outside the jurisdiction of Congress to deal with,” because “[t]he overt act of\\nputting a letter into the postoffice of the United States is a matter that Congress may [and\\ndid] regulate”).\\n\\n\\n\\n\\n 31\\n\\fkennel whenever some domestic activity is involved in the case.”). For this reason,\\n\\nthe use of the mail or wires must be essential, rather than merely incidental, to the\\n\\nscheme to defraud.\\n\\n We therefore hold that a claim predicated on mail or wire fraud involves\\n\\nsufficient domestic conduct when (1) the defendant used domestic mail or wires\\n\\nin furtherance of a scheme to defraud, and (2) the use of the mail or wires was a\\n\\ncore component of the scheme to defraud.20\\n\\n The district court’s rule would effectively immunize offshore fraudsters\\n\\nfrom mail or wire fraud. That outcome is inconsistent with European Community,\\n\\n764 F.3d 129. There, we concluded that RICO plaintiffs stated claims for domestic\\n\\nmail and wire fraud by alleging, among other things, “that the Defendants\\n\\nmanaged their global money laundering schemes from the United States through\\n\\n\\n\\n\\n20In European Community, 764 F.3d 129, we held in describing the mail and wire fraud\\nstatutes that “[i]f domestic conduct satisfies every essential element to prove a violation\\nof a United States statute that does not apply extraterritorially, that statute is violated\\neven if some further conduct contributing to the violation occurred outside the United\\nStates.” 764 F.3d at 142. Our holding here does not disturb that rule. See also id. (leaving\\nthe “focus” question open “because wherever [the] line [between domestic and\\nextraterritorial applications of the statutes] should be drawn, the conduct alleged here\\nclearly states a domestic cause of action”).\\n\\n\\n\\n\\n 32\\n\\fforeign . . . communications,” and “that the schemes themselves were directed at\\n\\nthe United States and had substantial domestic effects.” Id. at 141.21 We make clear\\n\\ntoday what European Community implied: while a defendant’s location is relevant\\n\\nto whether the regulated conduct was domestic, the mail and wire fraud statutes\\n\\ndo not give way simply because the alleged fraudster was located outside the\\n\\nUnited States.\\n\\n 2. The Use of the Mail or Wires Furthered the\\n Alleged Schemes to Defraud.\\n\\n The district court and the parties focused their analyses of this issue almost\\n\\nexclusively on the New York Trust Account Scheme.\\n\\n The SAC alleges that the New York Trust Account Scheme involved two\\n\\ntypes of fraud: Elsaca transferring sham advisory fees to himself, and Elsaca\\n\\ntransferring sham legal fees to Silva. The essence of both allegations is that Elsaca\\n\\ncreated the bogus Capri Star Trust, funded its New York bank account with money\\n\\nfrom the Afghan Trust, and then used domestic mail and wires to order UBS—\\n\\n\\n\\n21See also id. at 142 (“If domestic conduct satisfies every essential element to prove a\\nviolation of a United States statute that does not apply extraterritorially, that statute is\\nviolated even if some further conduct contributing to the violation occurred outside the\\nUnited States.”).\\n\\n\\n\\n\\n 33\\n\\flocated in New York—to transfer millions of dollars from that account to himself\\n\\nand Silva.22 The SAC supports a reasonable inference that the repeated use of\\n\\ndomestic mail and wires to fraudulently order a domestic bank to transfer millions\\n\\nof dollars out of a domestic account was a core component of the alleged scheme\\n\\nto defraud.23\\n\\n The same reasoning applies to the remaining schemes. A core component of\\n\\neach allegation is that Elsaca repeatedly used domestic mail or wires to order a\\n\\nNew York bank to fraudulently transfer money out of a New York bank account.\\n\\n Accordingly, for each of the schemes to defraud alleged in the SAC, the mail\\n\\nand wire fraud statutes focus on domestic conduct.24\\n\\n\\n\\n\\n22See J.A. 618 (alleging Elsaca “typically authorized the [sham advisory fees] by either\\nwire or mail to UBS employees in New York”); id. at 620 (alleging that “on a biannual\\nbasis, starting in October 2001, Silva mailed invoices to the Capri Star Trust in New York\\nseeking payment of legal fees in the amount of $20,000”); id. (alleging Elsaca authorized\\nthe transfers to Silva “by wire or mail to UBS employees in New York”).\\n23The SAC does not allege that the banks knowingly participated in the fraud or were\\neven aware that Elsaca was stealing the Estate’s money. In fact, it alleges the opposite—\\nthat Elsaca duped UBS into believing these transfers were payments for legitimate\\nservices.\\n24We make no finding with respect to the Sham Management Fees Scheme, as we find\\nthis scheme is impermissibly extraterritorial under civil RICO.\\n\\n\\n\\n\\n 34\\n\\f The Bank Fraud Statute Regulates Domestic\\n Conduct as Applied to the Alleged Schemes to\\n Defraud.\\n\\n The bank fraud statute states:\\n\\n Whoever knowingly executes, or attempts to execute, a scheme or\\n artifice—\\n\\n (1) to defraud a financial institution; or\\n\\n (2) to obtain any of the moneys, funds, credits, assets, securities,\\n or other property owned by, or under the custody or control of,\\n a financial institution, by means of false or fraudulent\\n pretenses, representations, or promises;\\n\\n shall be fined not more than $1,000,000 or imprisoned not more than\\n 30 years, or both.\\n\\n18 U.S.C. § 1344. The bank fraud statute does not purport to apply to\\n\\nextraterritorial conduct. “When a statute gives no clear indication of an\\n\\nextraterritorial application, it has none.” Morrison, 561 U.S. at 255. We therefore\\n\\nreturn to the domestic‐conduct prong of the extraterritoriality framework.\\n\\n 1. Section 1344(2) of the Bank Fraud Statute\\n Focuses on a Scheme to Obtain Property\\n Owned or Controlled by a Bank Under False\\n or Fraudulent Pretenses.\\n\\n As the text of the bank fraud statute makes clear, the conduct it proscribes\\n\\nis knowingly executing a scheme to (1) defraud a financial institution or (2)\\n\\n\\n\\n\\n 35\\n\\ffraudulently obtain assets owned by or under the custody of a financial institution.\\n\\nSee 18 U.S.C. § 1344. We construe the SAC to rely on the second category.\\n\\n As the Supreme Court has explained, “§ 1344(2) requires that a defendant\\n\\n‘knowingly execute, or attempt to execute, a scheme or artifice’ with at least two\\n\\nelements”: (1) that the defendant intended to obtain property owned or controlled\\n\\nby a bank, and (2) that the envisioned result would have occurred, or did occur,\\n\\nby false pretenses, representations, or promises. Loughrin v. United States, 573 U.S.\\n\\n351, 355 (2014) (quoting 18 U.S.C. § 1344) (brackets omitted).25 Thus, the conduct\\n\\nthat § 1344(2) seeks to regulate, and its focus, is a scheme to obtain property owned\\n\\nor controlled by a bank under false or fraudulent pretenses. Though we do not\\n\\nforeclose other possibilities, this conduct is domestic when a core component of\\n\\nthe scheme to defraud was the use of domestic mail or wires to direct the theft or\\n\\nmisappropriation of property located within the United States and held by a\\n\\ndomestic bank.\\n\\n\\n\\n\\n25The Court rejected a third possible element, “that the defendant intended to defraud a\\nbank.” Id. at 356.\\n\\n\\n\\n\\n 36\\n\\f 2. The Schemes to Obtain Property Controlled\\n by New York Banks Involved Domestic\\n Conduct.\\n\\n As previously noted, the crux of the New York Trust Account Scheme is that\\n\\nElsaca ordered New York banks to transfer the Estate’s property out of its New\\n\\nYork bank accounts and into accounts belonging to Elsaca and Silva. The SAC\\n\\nalleges these transfers were for “sham fees” because Elsaca and Silva did not\\n\\nperform the invoiced advisory and legal services.\\n\\n The SAC clearly alleges the New York Trust Account Scheme was “a scheme\\n\\n. . . to obtain any of the moneys . . . under the custody or control of, a [domestic]\\n\\nfinancial institution, by means of false or fraudulent pretenses, representations, or\\n\\npromises.” See 18 U.S.C. § 1344(2). For the reasons stated in our analysis of the mail\\n\\nand wire fraud statutes, a core component of this scheme was Elsaca ordering UBS\\n\\nvia the mail and wires to transfer money out of the Estate’s New York bank\\n\\naccount. Thus, the New York Trust Account Scheme calls for a domestic\\n\\napplication of the bank fraud statute.\\n\\n The other alleged schemes involve the same domestic conduct—domestic\\n\\nmail or wire transmissions facilitating the theft or misappropriation of property\\n\\n\\n\\n\\n 37\\n\\fheld in New York by a domestic bank. We accordingly find that § 1344(2) focuses\\n\\non domestic conduct as applied to each of the alleged schemes to defraud.\\n\\n III. The Surviving Schemes State a Pattern of Racketeering Activity.\\n\\n After holding that every scheme was impermissibly extraterritorial except\\n\\nthe BCI Share Theft Scheme, the district court found that Bascuñán failed to allege\\n\\na pattern of racketeering activity with respect to that one scheme. As the court\\n\\nexplained, a pattern of racketeering activity requires at least two related unlawful\\n\\nacts. See, e.g., Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 242 (2d\\n\\nCir. 1999) (citing 18 U.S.C. § 1961(5)). The court concluded that this single scheme\\n\\ndid not suffice. It did not explain how it would have decided the pattern issue had\\n\\nit also weighed the schemes it found impermissibly extraterritorial.\\n\\n As noted above, we find that all of the SAC’s alleged schemes, except for the\\n\\nSham Management Fees Scheme, survive the extraterritoriality framework.\\n\\nAlthough our ordinary practice would be to remand for the district court to\\n\\nreconsider whether Bascuñán has adequately alleged a pattern of racketeering\\n\\nactivity, Elsaca makes no argument in his brief that the numerous schemes, taken\\n\\ntogether, fail to satisfy this standard; he focuses solely on the BCI Share Theft\\n\\nScheme. We therefore find that Elsaca has waived any argument to the contrary,\\n\\n\\n\\n\\n 38\\n\\fand we accordingly hold that the surviving schemes as pleaded in the SAC state a\\n\\npattern of racketeering activity sufficient to survive a motion to dismiss under\\n\\nRule 12(b)(6).26\\n\\n IV. Additional Claims\\n\\n This opinion has thus far focused on Count 1, which alleges a violation of\\n\\n§ 1962(c) of RICO. Count 2 alleges a violation of RICO § 1962(d), which proscribes\\n\\nconspiracies to violate § 1962(c). Because the SAC states a claim under § 1962(c),\\n\\nand the claim involves several individuals conspiring to violate that provision, the\\n\\n§ 1962(d) claim is not impermissibly extraterritorial.\\n\\n Counts 3–5 are state‐law claims. Without addressing their merits, the district\\n\\ncourt declined to exercise supplemental jurisdiction over these claims upon\\n\\ndismissing Bascuñán’s RICO claims. Because we hold that the RICO claims\\n\\nsurvive, we vacate the district court’s dismissal of the state‐law claims. On\\n\\nremand, the court should reconsider whether it will exercise supplemental\\n\\n\\n\\n26We are mindful in reaching this conclusion that this lawsuit has been at the pleading\\nstage since March 17, 2015—for over four years—and has yet to proceed to discovery\\nbecause of the now‐two dismissal orders we have reversed on appeal. We do not,\\nhowever, preclude Elsaca from raising the “pattern of racketeering activity” argument on\\na motion for summary judgment or at trial.\\n\\n\\n\\n\\n 39\\n\\fjurisdiction over these claims in light of our reinstatement of the RICO claims.\\n\\nHowever, because Elsaca does not argue that the state‐law claims are legally\\n\\ninsufficient under Rule 12(b)(6),27 we hold that he has waived any argument to that\\n\\neffect.28\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we hold that each of the schemes to defraud,\\n\\nexcept for the Sham Management Fees Scheme, calls for domestic applications of\\n\\n18 U.S.C. §§ 1962(c), 1962(d), 1341, 1343, and 1344(2). We also hold that the district\\n\\ncourt abused its discretion by dismissing the state‐law claims for lack of\\n\\nsupplemental jurisdiction. We accordingly REVERSE the district court’s judgment\\n\\ndismissing the SAC and REMAND for further proceedings consistent with this\\n\\n\\n\\n\\n27Neither of Elsaca’s arguments for affirming dismissal of these claims has any relation\\nto their merits. Nor is either argument persuasive. His argument that the district court\\ncorrectly dismissed these claims for lack of supplemental jurisdiction after dismissing the\\nfederal claims has no force because the federal claims survive. His alternative argument—\\nthat Bascuñán abandoned his state‐law claims because he “do[es] not mention, let alone\\nchallenge” their dismissal for lack of supplemental jurisdiction, Appellee Br. 49—is\\nincorrect. See Appellant Br. 53 n.11 (“Reversal of the dismissal of the RICO claims requires\\nreinstatement of the state law claims, over which the District Court declined to exercise\\nsupplemental jurisdiction . . . .”).\\n28 However, we do not preclude Elsaca from arguing that these claims are legally\\ninsufficient on a motion for summary judgment or at trial. Cf. note 26, supra.\\n\\n\\n\\n\\n 40\\n\\fopinion. On remand, the court should direct Elsaca to expeditiously file an answer\\n\\nto the SAC so that the action may proceed to discovery.\\n\\n\\n\\n\\n 41\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4406334/\", \"author_raw\": \"WESLEY, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WESLEY"},"judge2":{"kind":"string","value":"LIVINGSTON"},"judge3":{"kind":"string","value":"BRODIE"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4629081/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jorge Yarur BASCUÑÁN, Tarascona Corp., Hofstra Corp., Inmobiliaria Milano S.A., Inmobiliaria E Inversiones Tauro S.A., Inversiones T & v S.A., Plaintiffs-Appellants, v. Daniel Yarur ELSACA, Cristían Jara Taito, Oscar Bretón Dieguez, GM & E Asset Management S.A., Fintair Finance Corp., Euweland Corp., Hay's Finance Corp., Cary Equity's Corp., Agrícola E Inmobiliaria Chauquén Limitada, John Does 1-10, Alapinjdp Investing Corp., San Investment Company Ltd, Defendants-Appellees, José Pedro Silva Prado, Alapinjdp Investment Corp., Defendants.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-06-13\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18‐2731\nBascuñán v. Elsaca\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n ______________\n\n August Term 2018\n\n (Argued: March 6, 2019 | Decided: June 13, 2019)\n\n Docket No. 18‐2731\n\n JORGE YARUR BASCUÑÁN, TARASCONA CORP., HOFSTRA CORP.,\nINMOBILIARIA MILANO S.A., INMOBILIARIA E INVERSIONES TAURO S.A.,\n INVERSIONES T & V S.A.,\n\n Plaintiffs‐Appellants,\n\n v.\n\n DANIEL YARUR ELSACA, CRISTÍAN JARA TAITO, OSCAR BRETÓN\n DIEGUEZ, GM & E ASSET MANAGEMENT S.A., FINTAIR FINANCE CORP.,\n EUWELAND CORP., HAY’S FINANCE CORP., CARY EQUITY’S CORP.,\n AGRÍCOLA E INMOBILIARIA CHAUQUÉN LIMITADA, JOHN DOES 1–10,\n ALAPINJDP INVESTING CORP., SAN INVESTMENT COMPANY LTD,\n\n Defendants‐Appellees,\n\n JOSÉ PEDRO SILVA PRADO, ALAPINJDP INVESTMENT CORP.,\n\n Defendants.*\n ______________\n\n\n\n\n* The Clerk of the Court is directed to amend the official caption as set forth above.\n\fBefore:\n WESLEY and LIVINGSTON, Circuit Judges; and BRODIE, District Judge.†\n\n This civil RICO action asks whether extraterritoriality issues prevent a\nChilean national and affiliated parties from suing another Chilean national and\naffiliated parties in the United States for their alleged involvement in numerous\nfraudulent schemes. The primary allegations are that the defendants, while located\nin foreign nations, used the mail or wires to order fraudulent asset transfers from\nthe plaintiffs’ New York bank accounts to the defendants’ own accounts. The\nUnited States District Court for the Southern District of New York (Daniels, J.) held\nthat all but one of the schemes were impermissibly extraterritorial under either\ncivil RICO, 18 U.S.C. § 1964(c), or the mail, wire, and bank fraud statutes the\nplaintiffs cited as predicates to the civil RICO cause of action, 18 U.S.C. §§ 1341,\n1343, and 1344. The court then found that the remaining scheme, standing alone,\ndid not constitute a pattern of racketeering activity under RICO.\n We hold that all but one of the schemes call for domestic applications of civil\nRICO and the underlying mail, wire, and bank fraud statutes. Accordingly, we\nREVERSE the judgment of the district court and REMAND for further\nproceedings consistent with this opinion.\n _________________\n\n ROBIN L. ALPERSTEIN (Jesse T. Conan, on the brief), Becker, Glynn,\n Muffly, Chassin & Hosinski LLP, New York, NY, for Plaintiffs‐\n Appellants.\n\n DAVID S. FLUGMAN (Jennifer M. Selendy, on the brief), Selendy &\n Gay PLLC, New York, NY, for Defendants‐Appellees.\n _________________\n\n\n\n\n†Judge Margo K. Brodie of the United States District Court for the Eastern District of New\nYork, sitting by designation.\n\n\n\n\n 2\n\fWESLEY, Circuit Judge:\n\n This is the second time we have been asked to decide whether Jorge Yarur\n\nBascuñán and affiliated parties (collectively, “Bascuñán”) can sue his cousin\n\nDaniel Yarur Elsaca and affiliated parties (collectively, “Elsaca”) under civil\n\nprovisions of the Racketeer Influenced and Corrupt Organizations Act of 1970\n\n(“RICO”) for their role in an alleged network of transnational fraudulent schemes.\n\nThe first time this case was before us, we reversed an order of the United States\n\nDistrict Court for the Southern District of New York (Daniels, J.)1 dismissing\n\nBascuñán’s claims as impermissibly extraterritorial. We remanded for the court to\n\nconsider whether Bascuñán adequately pleaded a domestic injury in light of our\n\nopinion and any additional allegations in the then‐pending Second Amended\n\nComplaint (“SAC”).2 On remand, the district court dismissed the SAC, finding that\n\nit failed to allege a domestic injury under RICO, impermissibly relied on\n\nextraterritorial applications of RICO predicate statutes, and failed to adequately\n\nallege a continuous pattern of racketeering activity.3 For the following reasons, we\n\n\n\n1 See Bascuñan v. Elsaca, No. 15 Civ. 2009 (GBD), 2016 WL 5475998 (S.D.N.Y. Sept. 28, 2016).\n2 See Bascuñán v. Elsaca (Bascuñán I), 874 F.3d 806 (2d Cir. 2017).\n3 See Yarur Bascuñan v. Yarur Elsaca, 338 F. Supp. 3d 301 (S.D.N.Y. 2018).\n\n\n\n\n 3\n\freverse the judgment of the district court and remand for further proceedings\n\nconsistent with this opinion.\n\n BACKGROUND\n\n Factual Background4\n\n Bascuñán is a resident and citizen of Chile. His grandfather founded Banco\n\nde Crédito e Inversiones (“BCI”), the third‐largest bank in Chile. His father was\n\nthe president and controlling shareholder of the bank. In the 1990s, Bascuñán\n\ninherited a large fortune from his parents (the “Bascuñán Estate,” or “Estate”)\n\nconsisting of numerous companies, financial property, a significant stake in BCI,\n\nand a large trust administered in New York. For reasons not relevant here,\n\nBascuñán was unable to manage his fortune at the time his parents died.\n\n In 1999, Bascuñán hired Elsaca, his cousin, to manage the Bascuñán Estate.\n\nElsaca is a citizen and resident of Chile and has a business degree from the London\n\nSchool of Economics. He is also a licensed accountant and prominent economist\n\nwho formerly led the Superintendencia de Valores y Seguros (de Chile), which the\n\n\n\n\n4As this appeal arises from a dismissal under Rule 12(b)(6) of the Federal Rules of Civil\nProcedure, we assume the allegations in the SAC to be true. See, e.g., Bascuñán I, 874 F.3d\nat 810.\n\n\n\n\n 4\n\fSAC describes as Chile’s equivalent of the U.S. Securities and Exchange\n\nCommission. Soon after Elsaca took the job, he and his attorney, Defendant José\n\nPedro Silva Prado (“Silva”), persuaded Bascuñán to grant Elsaca power of\n\nattorney, giving him “complete control” over Bascuñán’s finances. J.A. 615. Most\n\nnotably, Elsaca gained the ability to transfer the Estate’s property without\n\nobtaining Bascuñán’s authorization.\n\n The bulk of the SAC focuses on four sets of alleged schemes to steal and\n\nmisappropriate money from the Bascuñán Estate that Elsaca conducted\n\nindividually, with associates, and through alter‐ego shell corporations. In total, the\n\nSAC alleges that Elsaca stole at least $64 million.\n\n 1. The New York Trust Account Scheme\n\n The New York Trust Account Scheme involved the misappropriation of\n\nassets held in two trusts owned by the Estate. J.P. Morgan set up the “Afghan\n\nTrust” in the Cayman Islands in 1998—before Bascuñán hired Elsaca—and has\n\nsince administered it from New York, where the Afghan Trust’s J.P. Morgan bank\n\naccount is located. The Afghan Trust’s stated purpose was funding Bascuñán’s\n\ncharitable endeavors. In 2001, Elsaca asked UBS to set up the “Capri Star Trust.”\n\nCapri Star was also a Cayman Islands trust purportedly intended to support\n\n\n\n\n 5\n\fBascuñán’s charitable endeavors. Elsaca funded the Capri Star Trust with money\n\nfrom the Afghan Trust that he placed in a UBS bank account located and\n\nadministered in New York.5 The only members of the Capri Star Trust Committee\n\nwere Elsaca and Silva.\n\n According to the SAC, the Capri Star Trust was a fraudulent enterprise, the\n\n“sole purpose” of which was “generat[ing] sham fees” for Elsaca and Silva. Id. at\n\n617. Elsaca named himself “Investment Advisor” in Capri Star Trust documents\n\nand set his advisory fee at 1% per year of the assets under management. He\n\nwithdrew his advisory fees by contacting UBS employees located in New York\n\nusing the mail or wires and authorizing them to send money from Capri Star’s\n\nNew York bank account to Elsaca’s own accounts. This conduct was fraudulent,\n\nthe SAC alleges, because Elsaca “provided no investment advice to the Capri Star\n\nTrust, whose assets were actively managed by UBS.” Id. at 618. In total, Elsaca\n\nordered at least seventeen transfers, totaling more than $2.7 million, from the\n\nCapri Star Trust to accounts and entities under his control.\n\n\n\n\n5This critical allegation, along with the below‐described allegation that Elsaca authorized\ntransfers out of this account by contacting UBS employees in New York via the mail and\nwires, was missing from the First Amended Complaint (“FAC”) for reasons noted below.\n\n\n\n\n 6\n\f Bascuñán also alleges that Elsaca used the Capri Star Trust Account to\n\ngenerate sham legal fees for Silva’s law firm. Beginning in October 2001, Silva\n\nbiannually mailed a $20,000 invoice for allegedly fictitious legal work to the Capri\n\nStar Trust. Elsaca then used the mail or wires to authorize UBS employees in New\n\nYork to transfer money from Capri Star’s New York bank account to Silva’s firm.\n\nIn 2005, Elsaca faxed a letter to UBS authorizing these biannual payments on a\n\nstanding basis. Additionally, in 2001, Elsaca authorized a one‐time wire transfer\n\nof $90,000 from Capri Star’s New York bank account to Silva. In total, Elsaca sent\n\nSilva “at least $390,000.” Id. at 621.\n\n 2. The Anacapri Investment Fund Scheme\n\n The Anacapri Investment Fund Scheme involved four sub‐schemes by\n\nwhich Elsaca and others allegedly stole over $60 million from the Bascuñán Estate.\n\nAt the center of this activity was the ANACAPRI Private Investment Fund\n\n(“Anacapri”), created by Elsaca in 2003. Elsaca funded Anacapri with $48 million\n\nfrom three of Bascuñán’s other companies.6\n\n\n\n\n6 Those companies are Plaintiffs‐Appellants Inmobiliaria Milano S.A., Inmobiliaria e\nInversiones Tauro S.A., and Inversiones T & V S.A.\n\n\n\n\n 7\n\f i. The Fintair Misappropriation. Around June 2003, when the Estate owned\n\nAnacapri, Elsaca “caused Anacapri to acquire” Defendant‐Appellee Fintair\n\nFinance Corp., a British Virgin Islands (“BVI”) corporation that Elsaca owned and\n\nhad formed earlier that year. Id. at 624. This acquisition made Fintair part of the\n\nBascuñán Estate.7 The SAC alleges that between 2003 and 2009, Elsaca falsely\n\nrepresented to Morgan Stanley that he, rather than the Bascuñán Estate, owned\n\nFintair. Under this guise, Elsaca opened a New York‐based Morgan Stanley bank\n\naccount in Fintair’s name and transferred $37,850,000 from the Bascuñán Estate\n\ninto the account.8 The transfers were directed through Defendant‐Appellee GM &\n\nE Asset Management S.A. (“GM&E”), a Chilean corporation owned by\n\nDefendants‐Appellees Cary Equity’s Corp. and Hay’s Finance Corp., which are\n\nthemselves BVI corporations owned and controlled by Elsaca.9 Elsaca then sent\n\nmoney from Fintair’s New York bank account to himself and others in\n\n\n\n7 This critical allegation was missing from the FAC for reasons noted below.\n8As the district court noted, the SAC does not indicate where the funds were located\nbefore Elsaca transferred them to Fintair.\n9 Defendant‐Appellee Cristían Jara Taito, a Chilean citizen, participated in the Fintair\nscheme in his capacity as GM&E’s general manager. Defendant‐Appellee Oscar Bretón\nDieguez, also a Chilean citizen, participated in his capacity as a member of Anacapri’s\noversight committee.\n\n\n\n\n 8\n\fapproximately 500 separate transfers and check deposits. Elsaca transferred\n\naround $30 million of these funds to the New York‐based Morgan Stanley bank\n\naccount of Defendant‐Appellee Euweland Corp., a BVI corporation owned and\n\ncontrolled by Elsaca. Other transferees included Elsaca, Silva, Defendant‐Appellee\n\nCristían Jara Taito, Hay’s, and GM&E, along with several nonparties affiliated\n\nwith these individuals and entities.\n\n ii. The BCI Share Theft Scheme. The Bascuñán Estate owned 1.47% of BCI,\n\nthe Chilean bank that Bascuñán’s father had controlled prior to his death. The\n\nEstate held its interest via Plaintiff‐Appellant Hofstra Corp., a BVI corporation that\n\nowned Plaintiff‐Appellant Tarascona Corp., a BVI corporation that owned the\n\nshares. The SAC alleges that in 2007, when the shares were worth approximately\n\n$47 million, Elsaca or one of his agents traveled to New York to steal the physical\n\nbearer shares from Hofstra’s safety deposit box. Elsaca subsequently registered the\n\nshares in the name of Nueva T Corp., a BVI corporation he had recently created.\n\nHe then directed associates to issue shares of Nueva T to Euweland, another\n\nElsaca‐owned corporation. Two weeks later, Elsaca “caused the [Bascuñán] Estate\n\nto purchase” shares of Nueva T from Euweland using $43 million in Anacapri\n\n\n\n\n 9\n\ffunds. Id. at 631. The allegation is effectively that Elsaca stole the shares from\n\nBascuñán and then sold them back to him.\n\n iii. The Sham Anacapri Sale. Next, the SAC alleges that in 2009, Elsaca\n\n“misappropriated Anacapri,” and thus its asset Fintair, which held Estate funds in\n\nits New York bank account. Id. at 634. It did this by “caus[ing Bascuñán’s\n\ncompanies] to sell their stakes in Anacapri to [Defendant‐Appellee Agrícola e\n\nInmobiliaria Chauquén Limitada],” a Chilean corporation owned by Elsaca. Id.\n\nThe sale was for roughly $7.5 million, but Anacapri’s assets had a book value of\n\naround $21.5 million.10 In effect, the allegation is that Elsaca “sold” Anacapri to his\n\nshell company at a $14 million discount.\n\n iv. The Sham Management Fees. Bascuñán also alleges that between 2000\n\nand 2009, Elsaca paid himself approximately $16 million in sham management fees\n\nfrom Anacapri. Bascuñán claims Elsaca transferred this money from unknown\n\naccounts to several New York‐based Morgan Stanley bank accounts owned by\n\nGM&E, a shell corporation that Elsaca indirectly owned.\n\n\n\n\n10 Bascuñán is uncertain of Anacapri’s actual value at the time.\n\n\n\n\n 10\n\f 3. The Tarascona Misappropriation\n\n The SAC alleges that between 1999 and 2004, Elsaca opened and maintained\n\neleven New York‐based Morgan Stanley bank accounts in Tarascona’s name for\n\nthe purpose of misappropriating Estate funds. According to the SAC, Elsaca\n\nfalsely represented to Morgan Stanley that he owned Tarascona, when in fact the\n\nEstate owned it. He then transferred Tarascona’s money into the accounts of his\n\nown corporations. For example, he sent over $2 million in 333 transfers to the ten\n\nor more New York bank accounts belonging to Hay’s.\n\n 4. The BCI Dividend Misappropriation\n\n Finally, Bascuñán alleges that Elsaca and his associates misappropriated\n\nover $3.5 million in dividends earned on the BCI shares by diverting them to\n\nEstate‐owned New York bank accounts, including the Fintair account, and then\n\ntaking the funds.\n\n ***\n\n Bascuñán alleges that he was unaware of Elsaca’s schemes when they\n\noccurred and that Elsaca never provided him a true accounting of the Estate’s\n\nassets. In late 2009, Bascuñán discovered that Elsaca had drafted Bascuñán’s will\n\nin a manner that would have allowed Elsaca to control the Estate in perpetuity.\n\n\n\n\n 11\n\fBascuñán soon severed ties with Elsaca. Over the following years, Bascuñán and\n\nvarious auditors uncovered Elsaca’s alleged fraud. The SAC alleges that Bascuñán\n\nremains unaware of the full extent of the fraud because Elsaca and his associates\n\nhave refused to cooperate with his investigations.11\n\n Litigation History\n\n Bascuñán filed this lawsuit in the United States District Court for the\n\nSouthern District of New York and filed his First Amended Complaint (“FAC”)\n\nshortly thereafter. Following an appeal and remand described below, Bascuñán\n\nfiled the currently operative SAC.\n\n The SAC states five claims under federal and state law. Count 1 alleges that,\n\nthrough the above‐described conduct, all Defendants violated 18 U.S.C. § 1962(c),\n\na substantive provision of RICO prohibiting individuals from conducting an\n\nenterprise through a pattern of racketeering activity. Seeking relief under 18 U.S.C.\n\n§ 1964(c), a private right of action commonly known as “civil RICO,” Bascuñán\n\nalleges that all Defendants engaged in four categories of racketeering activity, or\n\n\n\n\n11The SAC alleges that Chilean authorities prosecuted Elsaca for misappropriation in\nrelation to some of the above‐described conduct. A divided court acquitted him but found\nhis conduct “constituted a non‐compliance of civil obligations.” Id. at 652.\n\n\n\n\n 12\n\f“predicates”: (1) mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343; (2)\n\nmoney laundering in violation of 18 U.S.C. §§ 1956 and 1957; (3) bank fraud in\n\nviolation of 18 U.S.C. § 1344; and (4) violations of the Travel Act, 18 U.S.C. § 1952.\n\nCount 2 alleges that all Defendants violated 18 U.S.C. § 1962(d), another of RICO’s\n\nsubstantive provisions, by knowingly conspiring to commit the same unlawful\n\npredicates. Count 3 is a state‐law claim for unjust enrichment against all\n\nDefendants. Count 4 is a state‐law constructive‐trust claim against all Defendants.\n\nCount 5 asks the court to order Elsaca to provide an accounting of the full scope\n\nof his alleged misappropriation.\n\n Earlier in this litigation, the district court dismissed the FAC, which stated\n\nsimilar claims, under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See\n\nBascuñan, No. 15 Civ. 2009 (GBD), 2016 WL 5475998, at *1. It principally found that\n\nthe claims involved extraterritorial conduct that was beyond RICO’s reach. Id. In\n\nRJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016), the Supreme Court\n\nheld that RICO’s private right of action, contained in § 1964, does not overcome\n\nthe presumption against extraterritoriality, and therefore in order to state a claim\n\nunder the statute, a plaintiff must allege a domestic injury. Interpreting that\n\ndecision, the district court held that Bascuñán had failed to allege a domestic injury\n\n\n\n\n 13\n\fas required by § 1964 because he “resided” in Chile when he sustained the “injury”\n\nin question. Bascuñan, No. 15 Civ. 2009 (GBD), 2016 WL 5475998, at *5–6. The court\n\nalso denied Bascuñán’s motion for leave to file the then‐pending SAC. Id. at *6\n\nn.16.\n\n We reversed in Bascuñán I. Rejecting the district court’s residency test, we\n\nheld that “when a foreign plaintiff [alleging a civil RICO injury] maintains tangible\n\nproperty in the United States, the misappropriation of that property constitutes a\n\ndomestic injury.” Bascuñán I, 874 F.3d at 814. Applying our rule to the versions of\n\nthe BCI Dividend and Anacapri Investment Fund schemes stated in the FAC, we\n\nfound no domestic injury because the only domestic aspect of these allegations\n\nwas that Elsaca transferred stolen funds into domestic bank accounts. Id. at 818.\n\nHowever, we held that the New York Trust Account and BCI Share Theft schemes\n\ninvolved domestic injuries because those allegations concerned property that was\n\ntaken out of bank accounts physically located in the United States. Id. We\n\naccordingly reversed the district court’s judgment dismissing the FAC, vacated its\n\norder denying Bascuñán’s motion for leave to file his SAC, and remanded for\n\nfurther proceedings. Id. at 825.\n\n\n\n\n 14\n\f On remand, Bascuñán filed the SAC. He contends that he had not known at\n\nthe time of filing the FAC that “[the] defendants opened and maintained\n\napproximately 31 accounts at Morgan Stanley in New York between 1999 and at\n\nleast 2012.” District Court Docket, ECF No. 65 at 4. Unlike the FAC, the SAC\n\ncontains the above‐described allegations that, with respect to the BCI Dividend\n\nMisappropriation and Anacapri Investment Fund schemes, the Defendants\n\nperpetrated their fraud by repeatedly stealing money out of the Estate’s Morgan\n\nStanley bank accounts in New York. Additionally, the SAC contained new\n\nallegations that Fintair (and, thus, its New York bank account) was part of the\n\nEstate between 2003 and 2009, a fact Bascuñán had not previously known and that\n\nElsaca conceded in a 2016 declaration. See J.A. 240–41.\n\n Elsaca again moved to dismiss under Rule 12(b)(6). As relevant here, he\n\nargued (1) that Bascuñán failed to allege a domestic injury with respect to much of\n\nElsaca’s conduct, (2) that although the New York Trust Account Scheme involved\n\na domestic RICO injury, the claim relied on impermissibly extraterritorial\n\napplications of the RICO predicate statutes, and (3) that whichever schemes\n\nsurvived an extraterritoriality analysis did not amount to a continuous pattern of\n\nracketeering activity as required under RICO. See Yarur Bascuñan, 338 F. Supp. 3d\n\n\n\n\n 15\n\fat 306–07. The district court agreed on all three grounds, declined to exercise\n\nsupplemental jurisdiction over the state‐law claims, and dismissed the SAC in its\n\nentirety. See id. at 307, 316–17. Bascuñán timely appealed.\n\n DISCUSSION\n\n This appeal brings us to the intersection of civil RICO and the presumption\n\nagainst extraterritoriality, a prescriptive comity doctrine and canon of statutory\n\nconstruction that limits the reach of federal statutes to domestic conduct unless\n\nthey purport to apply to extraterritorial conduct. See In re Picard, Tr. for Liquidation\n\nof Bernard L. Madoff Inv. Sec. LLC, 917 F.3d 85, 95 (2d Cir. 2019). As the Supreme\n\nCourt explained in RJR Nabisco, “[t]he question of RICO’s extraterritorial\n\napplication really involves two questions. First, do RICO’s substantive\n\nprohibitions, contained in § 1962, apply to conduct that occurs in foreign\n\ncountries? Second, does RICO’s private right of action, contained in § 1964(c),\n\napply to injuries that are suffered in foreign countries?” 136 S. Ct. at 2099.\n\n To resolve this appeal, we must decide (1) whether the conduct violating the\n\npredicate statutes was extraterritorial, (2) whether the application of civil RICO to\n\nBascuñán’s alleged injuries (i.e., the fraudulent schemes) is extraterritorial, and (3)\n\nwhether the surviving schemes amount to a pattern of racketeering activity. The\n\n\n\n\n 16\n\fdistrict court faulted different aspects of the SAC on all three issues. We begin, as\n\ndid the parties and the district court, with the second issue.\n\n I. All but One of Bascuñán’s Injuries Are Domestic Under § 1964(c).\n\n We review de novo a district court’s grant of a motion to dismiss under\n\nFederal Rule of Civil Procedure 12(b)(6), accepting all factual allegations in the\n\ncomplaint as true and drawing all reasonable inferences in favor of the plaintiff.\n\nCaro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010). The Supreme Court has directed\n\nus to employ a “two‐step framework” where, as here, a case implicates\n\nextraterritoriality issues. “At the first step, we ask whether the presumption\n\nagainst extraterritoriality has been rebutted—that is, whether the statute gives a\n\nclear, affirmative indication that it applies extraterritorially. . . . If the statute is not\n\nextraterritorial, then at the second step we determine whether the case involves a\n\ndomestic application of the statute.” RJR Nabisco, 136 S. Ct. at 2101.\n\n The Supreme Court has already held that civil RICO does not rebut the\n\npresumption against extraterritoriality. Id. at 2111. Therefore, “[t]he . . . question\n\non appeal subject to our de novo review . . . is whether Bascuñán plausibly alleged\n\na domestic injury to business or property.” Bascuñán I, 874 F.3d at 814. Whether an\n\ninjury is domestic “will, as a general matter, depend on the particular facts alleged\n\n\n\n\n 17\n\fin each case.” Id. at 817–18. Absent extraordinary circumstances, “when a foreign\n\nplaintiff maintains tangible property in the United States, the misappropriation of\n\nthat property constitutes a domestic injury.” Id. at 814; see id. at 820.\n\n In Bascuñán I, we held based on the allegations in the FAC that the BCI Share\n\nTheft and New York Trust Account schemes involved domestic injuries because\n\nthey “allege[d] that certain property—although belonging to a foreign owner—\n\nwas located within the United States when it was stolen.” Id. at 820. We found that\n\nthe BCI Share Theft injury occurred in New York because Bascuñán claimed that\n\nElsaca stole physical bearer shares from a New York safety deposit box. See id. at\n\n824. The New York Trust Account Scheme involved financial, rather than tangible,\n\nproperty. Id. at 822. But we rejected any distinction between these categories,\n\nfinding that the misappropriation of funds held in a bank account is “analogous\n\nto an injury to tangible property . . . [meaning] property that can be fairly said to\n\nexist in a precise location.” Id. at 820. Because the bank accounts were located inside\n\nthe United States, the alleged theft of funds deposited in those accounts was\n\ndomestic conduct. Id. at 823.\n\n By contrast, the remaining schemes concerned property that was located\n\noutside the United States when it was allegedly misappropriated. We affirmed the\n\n\n\n\n 18\n\fcourt’s finding that those schemes were impermissibly extraterritorial as pleaded\n\nin the FAC, emphasizing that “the use of bank accounts located within the United\n\nStates to facilitate or conceal the theft of property located outside of the United\n\nStates does not, on its own, establish a domestic injury.” See id. at 819.12\n\n As Elsaca has not argued to the contrary in either the district court or this\n\nCourt, we find that the New York Trust Account and BCI Share Theft schemes as\n\npleaded in the SAC continue to allege domestic conduct. See, e.g., Yarur Bascuñan,\n\n338 F. Supp. 3d at 314 (“Defendants concede that the alleged misappropriation of\n\nfunds from the Afghan Trust in New York for the purpose of generating sham fees\n\nsatisfies RICO’s domestic injury requirement.”). Because Bascuñán I held that most\n\nof the remaining injuries were extraterritorial as alleged in the FAC, the key\n\nquestion here is whether the SAC’s newly pleaded allegations assert the necessary\n\ndomestic nexus.\n\n\n\n\n12Bascuñán I did not address the Tarascona Misappropriation Scheme because it was not\npleaded in the FAC. See id. at 819 n.53.\n\n\n\n\n 19\n\f The Fintair Misappropriation Involved a Domestic\n Injury.\n\n The crux of the Fintair allegation is that Elsaca caused Anacapri to acquire\n\nFintair, opened a New York‐based Morgan Stanley bank account in Fintair’s name,\n\nfilled the account with money from the Estate’s presumably foreign accounts, and\n\nthen sent this money from the New York bank account to himself and others in\n\nroughly 500 transfers. Unlike the SAC, the FAC at issue in Bascuñán I did not allege\n\nthat the Bascuñán Estate owned Fintair or that Elsaca transferred Bascuñán’s\n\nmoney out of a domestic bank account.\n\n Both sides agree that Bascuñán’s injuries occurred at the times of the alleged\n\nthefts or misappropriations. The dispute is over when the theft or misappropriation\n\noccurred and, transitively, where the funds were located when Elsaca stole them.\n\nElsaca maintains that any theft or misappropriation occurred when Elsaca moved\n\nEstate funds from Bascuñán’s foreign bank accounts into Bascuñán’s New York\n\nFintair account. Thus, he concludes, Bascuñán’s injury took place abroad.\n\nBascuñán argues that this initial transfer to Fintair was simply a transfer from one\n\nEstate account to another because the Estate owned Fintair and its New York bank\n\naccount. On that basis, he concludes that the theft and misappropriation occurred\n\n\n\n\n 20\n\fwhen Elsaca subsequently made the roughly 500 transfers from Fintair’s New\n\nYork bank account, as only then did the money leave the Estate. Under this theory,\n\nthe injury occurred in the United States.\n\n We agree with Bascuñán. The Estate owned Fintair when Elsaca transferred\n\nmoney into and out of its New York bank account, a fact Elsaca conceded in a\n\ndeclaration he submitted to the district court. See J.A. 240–41 (stating that from\n\n2003 through 2009, “Fintair was owned by [Bascuñán]”). Thus, Elsaca’s transfers\n\nof the Estate’s money into Fintair’s New York bank account were simply transfers\n\nfrom one Bascuñán account to another, made by an individual who had the\n\ncolorable authority to order these transfers under his broad power of attorney. The\n\nalleged theft or misappropriation occurred when the funds left the Estate, at which\n\ntime they were located in a Morgan Stanley bank account in New York.\n\n Adopting Elsaca’s theory would effectively require us to conclude that the\n\nBascuñán Estate stole money from itself. Although Bascuñán was unaware that\n\nElsaca had opened the Fintair account and filled it with the Estate’s money,\n\nBascuñán nonetheless owned the account through his ownership of Fintair. The\n\nSAC supports a reasonable inference that he could have accessed the funds at any\n\n\n\n\n 21\n\ftime had he known about the account.13 It is possible that Elsaca violated some\n\nfiduciary duty by transferring funds from foreign Estate accounts into the New\n\nYork Fintair account.14 But the SAC leaves little doubt that the injury Bascuñán\n\npleads is that Elsaca stole the Estate’s money, not that he improperly moved it.15\n\n Our conclusion that Bascuñán adequately pleaded a domestic injury is\n\nreinforced by our jurisprudence surrounding fraud offenses, and particularly the\n\nlaw of embezzlement, which the Supreme Court has described as the “linguistic\n\nneighbor” of fraud. See Bullock v. BankChampaign, N.A., 569 U.S. 267, 274 (2013). An\n\n\n\n13Indeed, the SAC suggests that Elsaca’s decision to initially move the $37,850,000 of\nEstate funds into the Fintair account was an integral part of the scheme. The allegation is\nnot that Elsaca stole the money all at once, but that he slowly siphoned it from Fintair\ninto a network of shell corporations in more than 500 separate transfers taking place over\nmany years.\n14 Elsaca’s argument for affirmance on this theory is conclusory and provides no\npersuasive basis for us to find that any fiduciary violation amounted to the theft or\nmisappropriation alleged in the SAC. For this reason, and because we affirmatively\nconclude that the theft and misappropriation occurred when Elsaca transferred funds out\nof the Fintair account, we express no opinion on whether Elsaca’s transfers from one\nEstate account to another were unlawful.\n15For similar reasons, we disagree with the district court’s view that “the SAC alleges [at\nmost] that banks located in New York were used to facilitate or conceal the theft of\nproperty taken from outside the United States.” Yarur Bascuñan, 338 F. Supp. 3d at 313\n(emphasis omitted). The money left the Estate when Elsaca transferred it out of Fintair’s\nNew York bank account and into his own accounts. This is a misappropriation of\nproperty located inside the United States, not the mere use of a domestic account to\nfacilitate or conceal a misappropriation that had previously occurred.\n\n\n\n\n 22\n\findividual traditionally commits embezzlement “when he: (1) with intent to\n\ndefraud; (2) converts to his own use; (3) property belonging to another, in a\n\nsituation where (4) the property initially lawfully came within his possession or\n\ncontrol.” United States v. Sampson, 898 F.3d 270, 277 (2d Cir. 2018). The crime of\n\nembezzlement therefore “builds on the concept of conversion,” which “involves\n\nan act of control or dominion over the property that seriously interferes with the\n\nowner’s rights.” United States v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986); see also\n\nBullock, 569 U.S. at 274 (“[A]s commonly used, ‘embezzlement’ requires\n\nconversion.”). And as the Fourth Circuit has noted, “[t]here can, of course, be no\n\ninterference with the owner’s rights to the property if the owner has given\n\npermission to the act in question.” Id.\n\n Elsaca conceded at oral argument that, until he transferred the funds from\n\nEstate accounts to his own personal accounts, he was acting lawfully pursuant to\n\nhis broad power of attorney, i.e., the permission granted to him by Bascuñán.\n\nMoreover, according to the SAC, until Elsaca transferred those funds, Bascuñán\n\ncould have accessed the Estate accounts in New York. Thus, it follows that\n\nBascuñán was not injured until Elsaca interfered with Estate property and\n\nconverted it to his own use in the United States. This conclusion accords with our\n\n\n\n\n 23\n\fdecision in McCarthy, where we held that a certified public accountant completed\n\nthe crime of embezzlement when he, without authorization, transferred funds from\n\ntrust accounts into personal accounts that he controlled. United States v. McCarthy, 271\n\nF.3d 287, 395 (2d Cir. 2001).\n\n Once we recognize that Bascuñán’s injuries occurred when Elsaca\n\ntransferred money out of the New York Fintair account, the Fintair\n\nMisappropriation Scheme looks almost exactly like the New York Trust Account\n\nScheme. For each of them, Bascuñán alleges that Elsaca stole money from a New\n\nYork bank account belonging to the Estate. See Bascuñán I, 874 F.3d at 820.\n\nMoreover, Bascuñán I noted that “[f]oreign persons and entities that own private\n\nproperty located within the United States expect that our laws will protect them\n\nin the event of damage to that property. That modest expectation is entirely\n\njustified, especially when we consider that a foreign resident’s property located in\n\nthe United States is otherwise subject to all of the regulations imposed on private\n\nproperty by American state and federal law.” Id. at 821. In assessing the New York\n\nTrust Account Scheme, Bascuñán I held that this allegation states a domestic\n\ninjury—the theft of property located inside the United States. See id. at 823. The\n\nsame conclusion applies here.\n\n\n\n\n 24\n\f The Tarascona Misappropriation Involved a\n Domestic Injury.\n\n This logic also applies to the Tarascona Misappropriation. The SAC alleges\n\nthat Elsaca opened eleven New York bank accounts in Tarascona’s name, filled\n\nthem with money from the Estate’s foreign accounts, and over time transferred the\n\nmoney out of the Estate. It also alleges that the Estate owned Tarascona and its\n\nbank accounts. Thus, the transfers to Tarascona’s New York accounts were intra‐\n\nEstate transfers, and the theft occurred when Elsaca transferred the money out of,\n\nnot into, those accounts. These are domestic injuries.\n\n The Sham Anacapri Sale Involved a Domestic\n Injury.\n\n The Sham Anacapri Sale allegation is that Elsaca caused Bascuñán’s\n\ncompanies to sell their stakes in Anacapri—at one third of their book value—to a\n\nChilean corporation owned by Elsaca. Bascuñán claims that this fraudulent sale\n\nconstituted a domestic injury because Anacapri owned Fintair, Fintair’s assets\n\nwere held in a New York bank account, and the unlawful sale thus involved the\n\n\n\n\n 25\n\ftheft or misappropriation of property located in the United States. We agree to the\n\nextent that Bascuñán alleges a misappropriation through the sale of Fintair.16\n\n The BCI Dividend Misappropriation Involved a\n Domestic Injury.\n\n The BCI Dividend Misappropriation allegation is that Elsaca stole dividends\n\nearned on the BCI shares by diverting them to the Fintair account and then\n\nwithdrawing them for personal use. For the reasons stated above, the injuries\n\noccurred when Elsaca stole money from a New York bank account. Again, the\n\nEstate’s New York accounts did not merely facilitate the fraud but were instead\n\nthe targets of the fraud. These injuries thus satisfy RICO’s domestic‐injury\n\nrequirement to the extent Bascuñán alleges that the dividends were diverted to\n\nFintair’s New York account and then misappropriated through the sale of Fintair.\n\n As Alleged, the Sham Management Fees Scheme\n Did Not Involve a Domestic Injury.\n\n Bascuñán concedes that he does not know where the injuries caused by the\n\nSham Management Fees Scheme took place because he does not know the\n\n\n\n16In his brief, Elsaca does not argue that the assets Fintair held in New York constituted\nonly a small percentage of Anacapri’s total assets at the time of the Anacapri sale. Thus,\nwe are not asked to determine the location of Bascuñán’s injury based on the distribution\nof Anacapri’s assets abroad.\n\n\n\n\n 26\n\flocations of the accounts from which Elsaca withdrew the relevant funds. He asks\n\nthat we remand on this issue to allow discovery on the locations of the accounts.\n\nBecause the SAC does not allege that these injuries took place in the United States,\n\nthe district court correctly held that this scheme is impermissibly extraterritorial\n\nas pleaded. However, should Bascuñán learn additional facts during discovery\n\nindicating that these injuries were domestic, the court in its discretion may allow\n\nhim to allege these facts in an amended complaint.\n\n ***\n\n In sum, each of the injuries alleged in the SAC, except for the Sham\n\nManagement Fees Scheme, calls for a domestic application of civil RICO.\n\n II. The Mail, Wire, and Bank Fraud Statutes Focus on Domestic Conduct\n as Applied to the Remaining Alleged Schemes to Defraud.\n\n The next issue is whether the civil RICO claims involve domestic\n\napplications of the relevant predicate statutes. RJR Nabisco, 136 S. Ct. at 2101. The\n\npredicates and their corresponding statutes are: (1) mail and wire fraud, 18 U.S.C.\n\n§§ 1341 and 1343; (2) money laundering, id. §§ 1956 and 1957; (3) bank fraud, id.\n\n§ 1344; and (4) violations of the Travel Act, id. § 1952.\n\n\n\n\n 27\n\f The Mail and Wire Fraud Statutes Regulate\n Domestic Conduct as Applied to the Alleged\n Schemes to Defraud.\n\n As outlined above, extraterritoriality concerns give way when “either the\n\nstatute indicates its extraterritorial reach or the case involves a domestic\n\napplication of the statute.” In re Picard, 917 F.3d at 95. The mail and wire fraud\n\nstatutes do not indicate an extraterritorial reach. See European Cmty. v. RJR Nabisco,\n\nInc., 764 F.3d 129, 141 (2d Cir. 2014), rev’d on other grounds, 136 S. Ct. 2090 (2016).\n\nThus, Bascuñán can employ them only if they apply to domestic conduct on these\n\nfacts. We therefore must determine whether the conduct relevant to their “focus”\n\noccurred in the United States. See In re Picard, 917 F.3d at 96 (quoting RJR Nabisco,\n\n136 S. Ct. at 2101). “The focus of a statute is the conduct it seeks to regulate, as well\n\nas the parties whose interests it seeks to protect.” Id. at 97.\n\n 1. The Mail and Wire Fraud Statutes Focus on\n Domestic Conduct when the Use of Domestic\n Mail or Wires Was a Core Component of the\n Scheme to Defraud.\n\n The mail and wire fraud statutes, whose labyrinthine language is better\n\ntaken abridged, “criminalize the use of the mails or wires in furtherance of ‘any\n\nscheme or artifice to defraud, or for obtaining money or property by means of false\n\n\n\n\n 28\n\for fraudulent pretenses, representations, or promises.’” Skilling v. United States,\n\n561 U.S. 358, 369 n.1 (2010) (quoting 18 U.S.C. § 1341 (mail fraud); id. § 1343 (wire\n\nfraud)). “Because the mail fraud and the wire fraud statutes use the same relevant\n\nlanguage, we analyze them the same way.” United States v. Weaver, 860 F.3d 90, 94\n\n(2d Cir. 2017) (citation omitted).\n\n The “focus” of these statutes for the purpose of the presumption against\n\nextraterritoriality is a question of first impression in our circuit. See European Cmty.,\n\n764 F.3d at 142–43 & n.14. The district court, relying on other district court\n\nopinions, concluded that both statutes focus on the “scheme to defraud,” which\n\nmust have been “planned, managed, and directed” from within the United States.\n\nYarur Bascuñan, 338 F. Supp. 3d at 314–15. Elsaca agrees. The courts in this circuit\n\nare not of one mind on the focus of these statutes.17 It will come as no surprise that\n\n\n17See, e.g., United States v. Gasperini, No. 16 Crim. 441 (NGG), 2017 WL 2399693, at *8\n(E.D.N.Y. June 1, 2017) (“[A] complaint alleges a domestic application of wire fraud when\n(1) a defendant or coconspirator commits a substantial amount of conduct in the United\nStates, (2) the conduct is integral to the commission of the scheme to defraud, and (3) at\nleast some of the conduct involves the use of U.S. wires in furtherance of the scheme to\ndefraud.” (citation omitted)); United States v. Hawit, No. 15 Crim. 252 (PKC), 2017 WL\n663542, at *5 (E.D.N.Y. Feb. 17, 2017) (“[I]n a given case, a court must conduct a more\nholistic assessment of the conduct that constitutes the alleged fraud scheme, including\nconsideration of whether the scheme involves only incidental or minimal use of U.S.\nwires.”); Reich v. Lopez, 38 F. Supp. 3d 436, 448 (S.D.N.Y. 2014) (“As long as enough\n\n\n\n\n 29\n\fBascuñán proposes several alternative theories drawn from other lower court\n\nopinions within the circuit.\n\n Because the focus of a statute includes the conduct it seeks to regulate, see In\n\nre Picard, 917 F.3d at 97, our analysis begins by identifying that conduct. There are\n\nthree “essential elements” to mail or wire fraud: “(1) a scheme to defraud, (2)\n\nmoney or property as the object of the scheme, and (3) use of the mails or wires to\n\nfurther the scheme.” Weaver, 860 F.3d at 94 (citation omitted, emphasis added). These\n\nelements make clear that the regulated conduct is not merely a “scheme to\n\ndefraud,” but more precisely the use of the mail or wires in furtherance of a scheme to\n\ndefraud.\n\n At least three of our sister circuits, though not in the context of applying the\n\npresumption against extraterritoriality, have described the focus of these statutes\n\n\n\n\ndomestic conduct exists to fulfill the requirements of . . . wire fraud, it is irrelevant that\nthose statutes are further violated by conduct that is extraterritorial in nature.”), aff’d, 858\nF.3d 55 (2d Cir. 2017).\n\n\n\n\n 30\n\fin substantially identical terms.18 The Supreme Court has done the same for over\n\na century.19\n\n While this principle guides our approach to the domestic‐conduct question,\n\nwe are mindful that “events . . . merely incidental to the [violation of a statute]” do\n\nnot have “primacy for the purposes of the extraterritoriality analysis.” WesternGeco\n\nLLC v. ION Geophysical Corp., 138 S. Ct. 2129, 2138 (2018); see also Morrison v. Nat’l\n\nAustl. Bank Ltd., 561 U.S. 247, 266 (2010) (“[T]he presumption against\n\nextraterritorial application would be a craven watchdog indeed if it retreated to its\n\n\n18 See, e.g., United States v. Garlick, 240 F.3d 789, 792 (9th Cir. 2001) (“The focus of the mail\nand wire fraud statutes is upon the misuse of the instrumentality of communication.”\n(brackets omitted) (quoting United States v. Alston, 609 F.2d 531, 536 (D.C. Cir. 1979)));\nUnited States v. Jefferson, 674 F.3d 332, 366 (4th Cir. 2012) (“In a mail or wire fraud\nprosecution, the mailing or wire transmission itself—i.e., misuse of the mail or wire—has\nconsistently been viewed as the actus reus that is punishable by federal law.”). Although\nit did so in an unpublished decision under plain‐error review, the Ninth Circuit has held\nin the context of applying the presumption against extraterritoriality that the conduct the\nwire fraud statute seeks to regulate is not “the scheme to defraud,” but “the misuse of the\ninstrumentality of communication.” United States v. Driver, 692 F. App’x 448, 449 (9th Cir.\n2017) (summary order), cert. denied, 138 S. Ct. 1304 (2018).\n19 See, e.g., Skilling, 561 U.S. at 369 n.1 (“The mail‐ and wire‐fraud statutes criminalize the\nuse of the mails or wires in furtherance of any scheme or artifice to defraud . . . .” (citation\nand quotation marks omitted)); Badders v. United States, 240 U.S. 391, 393 (1916) (Holmes,\nJ.) (rejecting an argument that the use of mail was “a mere incident of a fraudulent scheme\nthat itself is outside the jurisdiction of Congress to deal with,” because “[t]he overt act of\nputting a letter into the postoffice of the United States is a matter that Congress may [and\ndid] regulate”).\n\n\n\n\n 31\n\fkennel whenever some domestic activity is involved in the case.”). For this reason,\n\nthe use of the mail or wires must be essential, rather than merely incidental, to the\n\nscheme to defraud.\n\n We therefore hold that a claim predicated on mail or wire fraud involves\n\nsufficient domestic conduct when (1) the defendant used domestic mail or wires\n\nin furtherance of a scheme to defraud, and (2) the use of the mail or wires was a\n\ncore component of the scheme to defraud.20\n\n The district court’s rule would effectively immunize offshore fraudsters\n\nfrom mail or wire fraud. That outcome is inconsistent with European Community,\n\n764 F.3d 129. There, we concluded that RICO plaintiffs stated claims for domestic\n\nmail and wire fraud by alleging, among other things, “that the Defendants\n\nmanaged their global money laundering schemes from the United States through\n\n\n\n\n20In European Community, 764 F.3d 129, we held in describing the mail and wire fraud\nstatutes that “[i]f domestic conduct satisfies every essential element to prove a violation\nof a United States statute that does not apply extraterritorially, that statute is violated\neven if some further conduct contributing to the violation occurred outside the United\nStates.” 764 F.3d at 142. Our holding here does not disturb that rule. See also id. (leaving\nthe “focus” question open “because wherever [the] line [between domestic and\nextraterritorial applications of the statutes] should be drawn, the conduct alleged here\nclearly states a domestic cause of action”).\n\n\n\n\n 32\n\fforeign . . . communications,” and “that the schemes themselves were directed at\n\nthe United States and had substantial domestic effects.” Id. at 141.21 We make clear\n\ntoday what European Community implied: while a defendant’s location is relevant\n\nto whether the regulated conduct was domestic, the mail and wire fraud statutes\n\ndo not give way simply because the alleged fraudster was located outside the\n\nUnited States.\n\n 2. The Use of the Mail or Wires Furthered the\n Alleged Schemes to Defraud.\n\n The district court and the parties focused their analyses of this issue almost\n\nexclusively on the New York Trust Account Scheme.\n\n The SAC alleges that the New York Trust Account Scheme involved two\n\ntypes of fraud: Elsaca transferring sham advisory fees to himself, and Elsaca\n\ntransferring sham legal fees to Silva. The essence of both allegations is that Elsaca\n\ncreated the bogus Capri Star Trust, funded its New York bank account with money\n\nfrom the Afghan Trust, and then used domestic mail and wires to order UBS—\n\n\n\n21See also id. at 142 (“If domestic conduct satisfies every essential element to prove a\nviolation of a United States statute that does not apply extraterritorially, that statute is\nviolated even if some further conduct contributing to the violation occurred outside the\nUnited States.”).\n\n\n\n\n 33\n\flocated in New York—to transfer millions of dollars from that account to himself\n\nand Silva.22 The SAC supports a reasonable inference that the repeated use of\n\ndomestic mail and wires to fraudulently order a domestic bank to transfer millions\n\nof dollars out of a domestic account was a core component of the alleged scheme\n\nto defraud.23\n\n The same reasoning applies to the remaining schemes. A core component of\n\neach allegation is that Elsaca repeatedly used domestic mail or wires to order a\n\nNew York bank to fraudulently transfer money out of a New York bank account.\n\n Accordingly, for each of the schemes to defraud alleged in the SAC, the mail\n\nand wire fraud statutes focus on domestic conduct.24\n\n\n\n\n22See J.A. 618 (alleging Elsaca “typically authorized the [sham advisory fees] by either\nwire or mail to UBS employees in New York”); id. at 620 (alleging that “on a biannual\nbasis, starting in October 2001, Silva mailed invoices to the Capri Star Trust in New York\nseeking payment of legal fees in the amount of $20,000”); id. (alleging Elsaca authorized\nthe transfers to Silva “by wire or mail to UBS employees in New York”).\n23The SAC does not allege that the banks knowingly participated in the fraud or were\neven aware that Elsaca was stealing the Estate’s money. In fact, it alleges the opposite—\nthat Elsaca duped UBS into believing these transfers were payments for legitimate\nservices.\n24We make no finding with respect to the Sham Management Fees Scheme, as we find\nthis scheme is impermissibly extraterritorial under civil RICO.\n\n\n\n\n 34\n\f The Bank Fraud Statute Regulates Domestic\n Conduct as Applied to the Alleged Schemes to\n Defraud.\n\n The bank fraud statute states:\n\n Whoever knowingly executes, or attempts to execute, a scheme or\n artifice—\n\n (1) to defraud a financial institution; or\n\n (2) to obtain any of the moneys, funds, credits, assets, securities,\n or other property owned by, or under the custody or control of,\n a financial institution, by means of false or fraudulent\n pretenses, representations, or promises;\n\n shall be fined not more than $1,000,000 or imprisoned not more than\n 30 years, or both.\n\n18 U.S.C. § 1344. The bank fraud statute does not purport to apply to\n\nextraterritorial conduct. “When a statute gives no clear indication of an\n\nextraterritorial application, it has none.” Morrison, 561 U.S. at 255. We therefore\n\nreturn to the domestic‐conduct prong of the extraterritoriality framework.\n\n 1. Section 1344(2) of the Bank Fraud Statute\n Focuses on a Scheme to Obtain Property\n Owned or Controlled by a Bank Under False\n or Fraudulent Pretenses.\n\n As the text of the bank fraud statute makes clear, the conduct it proscribes\n\nis knowingly executing a scheme to (1) defraud a financial institution or (2)\n\n\n\n\n 35\n\ffraudulently obtain assets owned by or under the custody of a financial institution.\n\nSee 18 U.S.C. § 1344. We construe the SAC to rely on the second category.\n\n As the Supreme Court has explained, “§ 1344(2) requires that a defendant\n\n‘knowingly execute, or attempt to execute, a scheme or artifice’ with at least two\n\nelements”: (1) that the defendant intended to obtain property owned or controlled\n\nby a bank, and (2) that the envisioned result would have occurred, or did occur,\n\nby false pretenses, representations, or promises. Loughrin v. United States, 573 U.S.\n\n351, 355 (2014) (quoting 18 U.S.C. § 1344) (brackets omitted).25 Thus, the conduct\n\nthat § 1344(2) seeks to regulate, and its focus, is a scheme to obtain property owned\n\nor controlled by a bank under false or fraudulent pretenses. Though we do not\n\nforeclose other possibilities, this conduct is domestic when a core component of\n\nthe scheme to defraud was the use of domestic mail or wires to direct the theft or\n\nmisappropriation of property located within the United States and held by a\n\ndomestic bank.\n\n\n\n\n25The Court rejected a third possible element, “that the defendant intended to defraud a\nbank.” Id. at 356.\n\n\n\n\n 36\n\f 2. The Schemes to Obtain Property Controlled\n by New York Banks Involved Domestic\n Conduct.\n\n As previously noted, the crux of the New York Trust Account Scheme is that\n\nElsaca ordered New York banks to transfer the Estate’s property out of its New\n\nYork bank accounts and into accounts belonging to Elsaca and Silva. The SAC\n\nalleges these transfers were for “sham fees” because Elsaca and Silva did not\n\nperform the invoiced advisory and legal services.\n\n The SAC clearly alleges the New York Trust Account Scheme was “a scheme\n\n. . . to obtain any of the moneys . . . under the custody or control of, a [domestic]\n\nfinancial institution, by means of false or fraudulent pretenses, representations, or\n\npromises.” See 18 U.S.C. § 1344(2). For the reasons stated in our analysis of the mail\n\nand wire fraud statutes, a core component of this scheme was Elsaca ordering UBS\n\nvia the mail and wires to transfer money out of the Estate’s New York bank\n\naccount. Thus, the New York Trust Account Scheme calls for a domestic\n\napplication of the bank fraud statute.\n\n The other alleged schemes involve the same domestic conduct—domestic\n\nmail or wire transmissions facilitating the theft or misappropriation of property\n\n\n\n\n 37\n\fheld in New York by a domestic bank. We accordingly find that § 1344(2) focuses\n\non domestic conduct as applied to each of the alleged schemes to defraud.\n\n III. The Surviving Schemes State a Pattern of Racketeering Activity.\n\n After holding that every scheme was impermissibly extraterritorial except\n\nthe BCI Share Theft Scheme, the district court found that Bascuñán failed to allege\n\na pattern of racketeering activity with respect to that one scheme. As the court\n\nexplained, a pattern of racketeering activity requires at least two related unlawful\n\nacts. See, e.g., Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 242 (2d\n\nCir. 1999) (citing 18 U.S.C. § 1961(5)). The court concluded that this single scheme\n\ndid not suffice. It did not explain how it would have decided the pattern issue had\n\nit also weighed the schemes it found impermissibly extraterritorial.\n\n As noted above, we find that all of the SAC’s alleged schemes, except for the\n\nSham Management Fees Scheme, survive the extraterritoriality framework.\n\nAlthough our ordinary practice would be to remand for the district court to\n\nreconsider whether Bascuñán has adequately alleged a pattern of racketeering\n\nactivity, Elsaca makes no argument in his brief that the numerous schemes, taken\n\ntogether, fail to satisfy this standard; he focuses solely on the BCI Share Theft\n\nScheme. We therefore find that Elsaca has waived any argument to the contrary,\n\n\n\n\n 38\n\fand we accordingly hold that the surviving schemes as pleaded in the SAC state a\n\npattern of racketeering activity sufficient to survive a motion to dismiss under\n\nRule 12(b)(6).26\n\n IV. Additional Claims\n\n This opinion has thus far focused on Count 1, which alleges a violation of\n\n§ 1962(c) of RICO. Count 2 alleges a violation of RICO § 1962(d), which proscribes\n\nconspiracies to violate § 1962(c). Because the SAC states a claim under § 1962(c),\n\nand the claim involves several individuals conspiring to violate that provision, the\n\n§ 1962(d) claim is not impermissibly extraterritorial.\n\n Counts 3–5 are state‐law claims. Without addressing their merits, the district\n\ncourt declined to exercise supplemental jurisdiction over these claims upon\n\ndismissing Bascuñán’s RICO claims. Because we hold that the RICO claims\n\nsurvive, we vacate the district court’s dismissal of the state‐law claims. On\n\nremand, the court should reconsider whether it will exercise supplemental\n\n\n\n26We are mindful in reaching this conclusion that this lawsuit has been at the pleading\nstage since March 17, 2015—for over four years—and has yet to proceed to discovery\nbecause of the now‐two dismissal orders we have reversed on appeal. We do not,\nhowever, preclude Elsaca from raising the “pattern of racketeering activity” argument on\na motion for summary judgment or at trial.\n\n\n\n\n 39\n\fjurisdiction over these claims in light of our reinstatement of the RICO claims.\n\nHowever, because Elsaca does not argue that the state‐law claims are legally\n\ninsufficient under Rule 12(b)(6),27 we hold that he has waived any argument to that\n\neffect.28\n\n CONCLUSION\n\n For the foregoing reasons, we hold that each of the schemes to defraud,\n\nexcept for the Sham Management Fees Scheme, calls for domestic applications of\n\n18 U.S.C. §§ 1962(c), 1962(d), 1341, 1343, and 1344(2). We also hold that the district\n\ncourt abused its discretion by dismissing the state‐law claims for lack of\n\nsupplemental jurisdiction. We accordingly REVERSE the district court’s judgment\n\ndismissing the SAC and REMAND for further proceedings consistent with this\n\n\n\n\n27Neither of Elsaca’s arguments for affirming dismissal of these claims has any relation\nto their merits. Nor is either argument persuasive. His argument that the district court\ncorrectly dismissed these claims for lack of supplemental jurisdiction after dismissing the\nfederal claims has no force because the federal claims survive. His alternative argument—\nthat Bascuñán abandoned his state‐law claims because he “do[es] not mention, let alone\nchallenge” their dismissal for lack of supplemental jurisdiction, Appellee Br. 49—is\nincorrect. See Appellant Br. 53 n.11 (“Reversal of the dismissal of the RICO claims requires\nreinstatement of the state law claims, over which the District Court declined to exercise\nsupplemental jurisdiction . . . .”).\n28 However, we do not preclude Elsaca from arguing that these claims are legally\ninsufficient on a motion for summary judgment or at trial. Cf. note 26, supra.\n\n\n\n\n 40\n\fopinion. On remand, the court should direct Elsaca to expeditiously file an answer\n\nto the SAC so that the action may proceed to discovery.\n\n\n\n\n 41\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jorge Yarur BASCUÑÁN, Tarascona Corp., Hofstra Corp., Inmobiliaria Milano S.A., Inmobiliaria E Inversiones Tauro S.A., Inversiones T & v S.A., Plaintiffs-Appellants, v. Daniel Yarur ELSACA, Cristían Jara Taito, Oscar Bretón Dieguez, GM & E Asset Management S.A., Fintair Finance Corp., Euweland Corp., Hay's Finance Corp., Cary Equity's Corp., Agrícola E Inmobiliaria Chauquén Limitada, John Does 1-10, Alapinjdp Investing Corp., San Investment Company Ltd, Defendants-Appellees, José Pedro Silva Prado, Alapinjdp Investment Corp., Defendants.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-06-13\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18‐2731\\nBascuñán v. Elsaca\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n ______________\\n\\n August Term 2018\\n\\n (Argued: March 6, 2019 | Decided: June 13, 2019)\\n\\n Docket No. 18‐2731\\n\\n JORGE YARUR BASCUÑÁN, TARASCONA CORP., HOFSTRA CORP.,\\nINMOBILIARIA MILANO S.A., INMOBILIARIA E INVERSIONES TAURO S.A.,\\n INVERSIONES T & V S.A.,\\n\\n Plaintiffs‐Appellants,\\n\\n v.\\n\\n DANIEL YARUR ELSACA, CRISTÍAN JARA TAITO, OSCAR BRETÓN\\n DIEGUEZ, GM & E ASSET MANAGEMENT S.A., FINTAIR FINANCE CORP.,\\n EUWELAND CORP., HAY’S FINANCE CORP., CARY EQUITY’S CORP.,\\n AGRÍCOLA E INMOBILIARIA CHAUQUÉN LIMITADA, JOHN DOES 1–10,\\n ALAPINJDP INVESTING CORP., SAN INVESTMENT COMPANY LTD,\\n\\n Defendants‐Appellees,\\n\\n JOSÉ PEDRO SILVA PRADO, ALAPINJDP INVESTMENT CORP.,\\n\\n Defendants.*\\n ______________\\n\\n\\n\\n\\n* The Clerk of the Court is directed to amend the official caption as set forth above.\\n\\fBefore:\\n WESLEY and LIVINGSTON, Circuit Judges; and BRODIE, District Judge.†\\n\\n This civil RICO action asks whether extraterritoriality issues prevent a\\nChilean national and affiliated parties from suing another Chilean national and\\naffiliated parties in the United States for their alleged involvement in numerous\\nfraudulent schemes. The primary allegations are that the defendants, while located\\nin foreign nations, used the mail or wires to order fraudulent asset transfers from\\nthe plaintiffs’ New York bank accounts to the defendants’ own accounts. The\\nUnited States District Court for the Southern District of New York (Daniels, J.) held\\nthat all but one of the schemes were impermissibly extraterritorial under either\\ncivil RICO, 18 U.S.C. § 1964(c), or the mail, wire, and bank fraud statutes the\\nplaintiffs cited as predicates to the civil RICO cause of action, 18 U.S.C. §§ 1341,\\n1343, and 1344. The court then found that the remaining scheme, standing alone,\\ndid not constitute a pattern of racketeering activity under RICO.\\n We hold that all but one of the schemes call for domestic applications of civil\\nRICO and the underlying mail, wire, and bank fraud statutes. Accordingly, we\\nREVERSE the judgment of the district court and REMAND for further\\nproceedings consistent with this opinion.\\n _________________\\n\\n ROBIN L. ALPERSTEIN (Jesse T. Conan, on the brief), Becker, Glynn,\\n Muffly, Chassin & Hosinski LLP, New York, NY, for Plaintiffs‐\\n Appellants.\\n\\n DAVID S. FLUGMAN (Jennifer M. Selendy, on the brief), Selendy &\\n Gay PLLC, New York, NY, for Defendants‐Appellees.\\n _________________\\n\\n\\n\\n\\n†Judge Margo K. Brodie of the United States District Court for the Eastern District of New\\nYork, sitting by designation.\\n\\n\\n\\n\\n 2\\n\\fWESLEY, Circuit Judge:\\n\\n This is the second time we have been asked to decide whether Jorge Yarur\\n\\nBascuñán and affiliated parties (collectively, “Bascuñán”) can sue his cousin\\n\\nDaniel Yarur Elsaca and affiliated parties (collectively, “Elsaca”) under civil\\n\\nprovisions of the Racketeer Influenced and Corrupt Organizations Act of 1970\\n\\n(“RICO”) for their role in an alleged network of transnational fraudulent schemes.\\n\\nThe first time this case was before us, we reversed an order of the United States\\n\\nDistrict Court for the Southern District of New York (Daniels, J.)1 dismissing\\n\\nBascuñán’s claims as impermissibly extraterritorial. We remanded for the court to\\n\\nconsider whether Bascuñán adequately pleaded a domestic injury in light of our\\n\\nopinion and any additional allegations in the then‐pending Second Amended\\n\\nComplaint (“SAC”).2 On remand, the district court dismissed the SAC, finding that\\n\\nit failed to allege a domestic injury under RICO, impermissibly relied on\\n\\nextraterritorial applications of RICO predicate statutes, and failed to adequately\\n\\nallege a continuous pattern of racketeering activity.3 For the following reasons, we\\n\\n\\n\\n1 See Bascuñan v. Elsaca, No. 15 Civ. 2009 (GBD), 2016 WL 5475998 (S.D.N.Y. Sept. 28, 2016).\\n2 See Bascuñán v. Elsaca (Bascuñán I), 874 F.3d 806 (2d Cir. 2017).\\n3 See Yarur Bascuñan v. Yarur Elsaca, 338 F. Supp. 3d 301 (S.D.N.Y. 2018).\\n\\n\\n\\n\\n 3\\n\\freverse the judgment of the district court and remand for further proceedings\\n\\nconsistent with this opinion.\\n\\n BACKGROUND\\n\\n Factual Background4\\n\\n Bascuñán is a resident and citizen of Chile. His grandfather founded Banco\\n\\nde Crédito e Inversiones (“BCI”), the third‐largest bank in Chile. His father was\\n\\nthe president and controlling shareholder of the bank. In the 1990s, Bascuñán\\n\\ninherited a large fortune from his parents (the “Bascuñán Estate,” or “Estate”)\\n\\nconsisting of numerous companies, financial property, a significant stake in BCI,\\n\\nand a large trust administered in New York. For reasons not relevant here,\\n\\nBascuñán was unable to manage his fortune at the time his parents died.\\n\\n In 1999, Bascuñán hired Elsaca, his cousin, to manage the Bascuñán Estate.\\n\\nElsaca is a citizen and resident of Chile and has a business degree from the London\\n\\nSchool of Economics. He is also a licensed accountant and prominent economist\\n\\nwho formerly led the Superintendencia de Valores y Seguros (de Chile), which the\\n\\n\\n\\n\\n4As this appeal arises from a dismissal under Rule 12(b)(6) of the Federal Rules of Civil\\nProcedure, we assume the allegations in the SAC to be true. See, e.g., Bascuñán I, 874 F.3d\\nat 810.\\n\\n\\n\\n\\n 4\\n\\fSAC describes as Chile’s equivalent of the U.S. Securities and Exchange\\n\\nCommission. Soon after Elsaca took the job, he and his attorney, Defendant José\\n\\nPedro Silva Prado (“Silva”), persuaded Bascuñán to grant Elsaca power of\\n\\nattorney, giving him “complete control” over Bascuñán’s finances. J.A. 615. Most\\n\\nnotably, Elsaca gained the ability to transfer the Estate’s property without\\n\\nobtaining Bascuñán’s authorization.\\n\\n The bulk of the SAC focuses on four sets of alleged schemes to steal and\\n\\nmisappropriate money from the Bascuñán Estate that Elsaca conducted\\n\\nindividually, with associates, and through alter‐ego shell corporations. In total, the\\n\\nSAC alleges that Elsaca stole at least $64 million.\\n\\n 1. The New York Trust Account Scheme\\n\\n The New York Trust Account Scheme involved the misappropriation of\\n\\nassets held in two trusts owned by the Estate. J.P. Morgan set up the “Afghan\\n\\nTrust” in the Cayman Islands in 1998—before Bascuñán hired Elsaca—and has\\n\\nsince administered it from New York, where the Afghan Trust’s J.P. Morgan bank\\n\\naccount is located. The Afghan Trust’s stated purpose was funding Bascuñán’s\\n\\ncharitable endeavors. In 2001, Elsaca asked UBS to set up the “Capri Star Trust.”\\n\\nCapri Star was also a Cayman Islands trust purportedly intended to support\\n\\n\\n\\n\\n 5\\n\\fBascuñán’s charitable endeavors. Elsaca funded the Capri Star Trust with money\\n\\nfrom the Afghan Trust that he placed in a UBS bank account located and\\n\\nadministered in New York.5 The only members of the Capri Star Trust Committee\\n\\nwere Elsaca and Silva.\\n\\n According to the SAC, the Capri Star Trust was a fraudulent enterprise, the\\n\\n“sole purpose” of which was “generat[ing] sham fees” for Elsaca and Silva. Id. at\\n\\n617. Elsaca named himself “Investment Advisor” in Capri Star Trust documents\\n\\nand set his advisory fee at 1% per year of the assets under management. He\\n\\nwithdrew his advisory fees by contacting UBS employees located in New York\\n\\nusing the mail or wires and authorizing them to send money from Capri Star’s\\n\\nNew York bank account to Elsaca’s own accounts. This conduct was fraudulent,\\n\\nthe SAC alleges, because Elsaca “provided no investment advice to the Capri Star\\n\\nTrust, whose assets were actively managed by UBS.” Id. at 618. In total, Elsaca\\n\\nordered at least seventeen transfers, totaling more than $2.7 million, from the\\n\\nCapri Star Trust to accounts and entities under his control.\\n\\n\\n\\n\\n5This critical allegation, along with the below‐described allegation that Elsaca authorized\\ntransfers out of this account by contacting UBS employees in New York via the mail and\\nwires, was missing from the First Amended Complaint (“FAC”) for reasons noted below.\\n\\n\\n\\n\\n 6\\n\\f Bascuñán also alleges that Elsaca used the Capri Star Trust Account to\\n\\ngenerate sham legal fees for Silva’s law firm. Beginning in October 2001, Silva\\n\\nbiannually mailed a $20,000 invoice for allegedly fictitious legal work to the Capri\\n\\nStar Trust. Elsaca then used the mail or wires to authorize UBS employees in New\\n\\nYork to transfer money from Capri Star’s New York bank account to Silva’s firm.\\n\\nIn 2005, Elsaca faxed a letter to UBS authorizing these biannual payments on a\\n\\nstanding basis. Additionally, in 2001, Elsaca authorized a one‐time wire transfer\\n\\nof $90,000 from Capri Star’s New York bank account to Silva. In total, Elsaca sent\\n\\nSilva “at least $390,000.” Id. at 621.\\n\\n 2. The Anacapri Investment Fund Scheme\\n\\n The Anacapri Investment Fund Scheme involved four sub‐schemes by\\n\\nwhich Elsaca and others allegedly stole over $60 million from the Bascuñán Estate.\\n\\nAt the center of this activity was the ANACAPRI Private Investment Fund\\n\\n(“Anacapri”), created by Elsaca in 2003. Elsaca funded Anacapri with $48 million\\n\\nfrom three of Bascuñán’s other companies.6\\n\\n\\n\\n\\n6 Those companies are Plaintiffs‐Appellants Inmobiliaria Milano S.A., Inmobiliaria e\\nInversiones Tauro S.A., and Inversiones T & V S.A.\\n\\n\\n\\n\\n 7\\n\\f i. The Fintair Misappropriation. Around June 2003, when the Estate owned\\n\\nAnacapri, Elsaca “caused Anacapri to acquire” Defendant‐Appellee Fintair\\n\\nFinance Corp., a British Virgin Islands (“BVI”) corporation that Elsaca owned and\\n\\nhad formed earlier that year. Id. at 624. This acquisition made Fintair part of the\\n\\nBascuñán Estate.7 The SAC alleges that between 2003 and 2009, Elsaca falsely\\n\\nrepresented to Morgan Stanley that he, rather than the Bascuñán Estate, owned\\n\\nFintair. Under this guise, Elsaca opened a New York‐based Morgan Stanley bank\\n\\naccount in Fintair’s name and transferred $37,850,000 from the Bascuñán Estate\\n\\ninto the account.8 The transfers were directed through Defendant‐Appellee GM &\\n\\nE Asset Management S.A. (“GM&E”), a Chilean corporation owned by\\n\\nDefendants‐Appellees Cary Equity’s Corp. and Hay’s Finance Corp., which are\\n\\nthemselves BVI corporations owned and controlled by Elsaca.9 Elsaca then sent\\n\\nmoney from Fintair’s New York bank account to himself and others in\\n\\n\\n\\n7 This critical allegation was missing from the FAC for reasons noted below.\\n8As the district court noted, the SAC does not indicate where the funds were located\\nbefore Elsaca transferred them to Fintair.\\n9 Defendant‐Appellee Cristían Jara Taito, a Chilean citizen, participated in the Fintair\\nscheme in his capacity as GM&E’s general manager. Defendant‐Appellee Oscar Bretón\\nDieguez, also a Chilean citizen, participated in his capacity as a member of Anacapri’s\\noversight committee.\\n\\n\\n\\n\\n 8\\n\\fapproximately 500 separate transfers and check deposits. Elsaca transferred\\n\\naround $30 million of these funds to the New York‐based Morgan Stanley bank\\n\\naccount of Defendant‐Appellee Euweland Corp., a BVI corporation owned and\\n\\ncontrolled by Elsaca. Other transferees included Elsaca, Silva, Defendant‐Appellee\\n\\nCristían Jara Taito, Hay’s, and GM&E, along with several nonparties affiliated\\n\\nwith these individuals and entities.\\n\\n ii. The BCI Share Theft Scheme. The Bascuñán Estate owned 1.47% of BCI,\\n\\nthe Chilean bank that Bascuñán’s father had controlled prior to his death. The\\n\\nEstate held its interest via Plaintiff‐Appellant Hofstra Corp., a BVI corporation that\\n\\nowned Plaintiff‐Appellant Tarascona Corp., a BVI corporation that owned the\\n\\nshares. The SAC alleges that in 2007, when the shares were worth approximately\\n\\n$47 million, Elsaca or one of his agents traveled to New York to steal the physical\\n\\nbearer shares from Hofstra’s safety deposit box. Elsaca subsequently registered the\\n\\nshares in the name of Nueva T Corp., a BVI corporation he had recently created.\\n\\nHe then directed associates to issue shares of Nueva T to Euweland, another\\n\\nElsaca‐owned corporation. Two weeks later, Elsaca “caused the [Bascuñán] Estate\\n\\nto purchase” shares of Nueva T from Euweland using $43 million in Anacapri\\n\\n\\n\\n\\n 9\\n\\ffunds. Id. at 631. The allegation is effectively that Elsaca stole the shares from\\n\\nBascuñán and then sold them back to him.\\n\\n iii. The Sham Anacapri Sale. Next, the SAC alleges that in 2009, Elsaca\\n\\n“misappropriated Anacapri,” and thus its asset Fintair, which held Estate funds in\\n\\nits New York bank account. Id. at 634. It did this by “caus[ing Bascuñán’s\\n\\ncompanies] to sell their stakes in Anacapri to [Defendant‐Appellee Agrícola e\\n\\nInmobiliaria Chauquén Limitada],” a Chilean corporation owned by Elsaca. Id.\\n\\nThe sale was for roughly $7.5 million, but Anacapri’s assets had a book value of\\n\\naround $21.5 million.10 In effect, the allegation is that Elsaca “sold” Anacapri to his\\n\\nshell company at a $14 million discount.\\n\\n iv. The Sham Management Fees. Bascuñán also alleges that between 2000\\n\\nand 2009, Elsaca paid himself approximately $16 million in sham management fees\\n\\nfrom Anacapri. Bascuñán claims Elsaca transferred this money from unknown\\n\\naccounts to several New York‐based Morgan Stanley bank accounts owned by\\n\\nGM&E, a shell corporation that Elsaca indirectly owned.\\n\\n\\n\\n\\n10 Bascuñán is uncertain of Anacapri’s actual value at the time.\\n\\n\\n\\n\\n 10\\n\\f 3. The Tarascona Misappropriation\\n\\n The SAC alleges that between 1999 and 2004, Elsaca opened and maintained\\n\\neleven New York‐based Morgan Stanley bank accounts in Tarascona’s name for\\n\\nthe purpose of misappropriating Estate funds. According to the SAC, Elsaca\\n\\nfalsely represented to Morgan Stanley that he owned Tarascona, when in fact the\\n\\nEstate owned it. He then transferred Tarascona’s money into the accounts of his\\n\\nown corporations. For example, he sent over $2 million in 333 transfers to the ten\\n\\nor more New York bank accounts belonging to Hay’s.\\n\\n 4. The BCI Dividend Misappropriation\\n\\n Finally, Bascuñán alleges that Elsaca and his associates misappropriated\\n\\nover $3.5 million in dividends earned on the BCI shares by diverting them to\\n\\nEstate‐owned New York bank accounts, including the Fintair account, and then\\n\\ntaking the funds.\\n\\n ***\\n\\n Bascuñán alleges that he was unaware of Elsaca’s schemes when they\\n\\noccurred and that Elsaca never provided him a true accounting of the Estate’s\\n\\nassets. In late 2009, Bascuñán discovered that Elsaca had drafted Bascuñán’s will\\n\\nin a manner that would have allowed Elsaca to control the Estate in perpetuity.\\n\\n\\n\\n\\n 11\\n\\fBascuñán soon severed ties with Elsaca. Over the following years, Bascuñán and\\n\\nvarious auditors uncovered Elsaca’s alleged fraud. The SAC alleges that Bascuñán\\n\\nremains unaware of the full extent of the fraud because Elsaca and his associates\\n\\nhave refused to cooperate with his investigations.11\\n\\n Litigation History\\n\\n Bascuñán filed this lawsuit in the United States District Court for the\\n\\nSouthern District of New York and filed his First Amended Complaint (“FAC”)\\n\\nshortly thereafter. Following an appeal and remand described below, Bascuñán\\n\\nfiled the currently operative SAC.\\n\\n The SAC states five claims under federal and state law. Count 1 alleges that,\\n\\nthrough the above‐described conduct, all Defendants violated 18 U.S.C. § 1962(c),\\n\\na substantive provision of RICO prohibiting individuals from conducting an\\n\\nenterprise through a pattern of racketeering activity. Seeking relief under 18 U.S.C.\\n\\n§ 1964(c), a private right of action commonly known as “civil RICO,” Bascuñán\\n\\nalleges that all Defendants engaged in four categories of racketeering activity, or\\n\\n\\n\\n\\n11The SAC alleges that Chilean authorities prosecuted Elsaca for misappropriation in\\nrelation to some of the above‐described conduct. A divided court acquitted him but found\\nhis conduct “constituted a non‐compliance of civil obligations.” Id. at 652.\\n\\n\\n\\n\\n 12\\n\\f“predicates”: (1) mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343; (2)\\n\\nmoney laundering in violation of 18 U.S.C. §§ 1956 and 1957; (3) bank fraud in\\n\\nviolation of 18 U.S.C. § 1344; and (4) violations of the Travel Act, 18 U.S.C. § 1952.\\n\\nCount 2 alleges that all Defendants violated 18 U.S.C. § 1962(d), another of RICO’s\\n\\nsubstantive provisions, by knowingly conspiring to commit the same unlawful\\n\\npredicates. Count 3 is a state‐law claim for unjust enrichment against all\\n\\nDefendants. Count 4 is a state‐law constructive‐trust claim against all Defendants.\\n\\nCount 5 asks the court to order Elsaca to provide an accounting of the full scope\\n\\nof his alleged misappropriation.\\n\\n Earlier in this litigation, the district court dismissed the FAC, which stated\\n\\nsimilar claims, under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See\\n\\nBascuñan, No. 15 Civ. 2009 (GBD), 2016 WL 5475998, at *1. It principally found that\\n\\nthe claims involved extraterritorial conduct that was beyond RICO’s reach. Id. In\\n\\nRJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016), the Supreme Court\\n\\nheld that RICO’s private right of action, contained in § 1964, does not overcome\\n\\nthe presumption against extraterritoriality, and therefore in order to state a claim\\n\\nunder the statute, a plaintiff must allege a domestic injury. Interpreting that\\n\\ndecision, the district court held that Bascuñán had failed to allege a domestic injury\\n\\n\\n\\n\\n 13\\n\\fas required by § 1964 because he “resided” in Chile when he sustained the “injury”\\n\\nin question. Bascuñan, No. 15 Civ. 2009 (GBD), 2016 WL 5475998, at *5–6. The court\\n\\nalso denied Bascuñán’s motion for leave to file the then‐pending SAC. Id. at *6\\n\\nn.16.\\n\\n We reversed in Bascuñán I. Rejecting the district court’s residency test, we\\n\\nheld that “when a foreign plaintiff [alleging a civil RICO injury] maintains tangible\\n\\nproperty in the United States, the misappropriation of that property constitutes a\\n\\ndomestic injury.” Bascuñán I, 874 F.3d at 814. Applying our rule to the versions of\\n\\nthe BCI Dividend and Anacapri Investment Fund schemes stated in the FAC, we\\n\\nfound no domestic injury because the only domestic aspect of these allegations\\n\\nwas that Elsaca transferred stolen funds into domestic bank accounts. Id. at 818.\\n\\nHowever, we held that the New York Trust Account and BCI Share Theft schemes\\n\\ninvolved domestic injuries because those allegations concerned property that was\\n\\ntaken out of bank accounts physically located in the United States. Id. We\\n\\naccordingly reversed the district court’s judgment dismissing the FAC, vacated its\\n\\norder denying Bascuñán’s motion for leave to file his SAC, and remanded for\\n\\nfurther proceedings. Id. at 825.\\n\\n\\n\\n\\n 14\\n\\f On remand, Bascuñán filed the SAC. He contends that he had not known at\\n\\nthe time of filing the FAC that “[the] defendants opened and maintained\\n\\napproximately 31 accounts at Morgan Stanley in New York between 1999 and at\\n\\nleast 2012.” District Court Docket, ECF No. 65 at 4. Unlike the FAC, the SAC\\n\\ncontains the above‐described allegations that, with respect to the BCI Dividend\\n\\nMisappropriation and Anacapri Investment Fund schemes, the Defendants\\n\\nperpetrated their fraud by repeatedly stealing money out of the Estate’s Morgan\\n\\nStanley bank accounts in New York. Additionally, the SAC contained new\\n\\nallegations that Fintair (and, thus, its New York bank account) was part of the\\n\\nEstate between 2003 and 2009, a fact Bascuñán had not previously known and that\\n\\nElsaca conceded in a 2016 declaration. See J.A. 240–41.\\n\\n Elsaca again moved to dismiss under Rule 12(b)(6). As relevant here, he\\n\\nargued (1) that Bascuñán failed to allege a domestic injury with respect to much of\\n\\nElsaca’s conduct, (2) that although the New York Trust Account Scheme involved\\n\\na domestic RICO injury, the claim relied on impermissibly extraterritorial\\n\\napplications of the RICO predicate statutes, and (3) that whichever schemes\\n\\nsurvived an extraterritoriality analysis did not amount to a continuous pattern of\\n\\nracketeering activity as required under RICO. See Yarur Bascuñan, 338 F. Supp. 3d\\n\\n\\n\\n\\n 15\\n\\fat 306–07. The district court agreed on all three grounds, declined to exercise\\n\\nsupplemental jurisdiction over the state‐law claims, and dismissed the SAC in its\\n\\nentirety. See id. at 307, 316–17. Bascuñán timely appealed.\\n\\n DISCUSSION\\n\\n This appeal brings us to the intersection of civil RICO and the presumption\\n\\nagainst extraterritoriality, a prescriptive comity doctrine and canon of statutory\\n\\nconstruction that limits the reach of federal statutes to domestic conduct unless\\n\\nthey purport to apply to extraterritorial conduct. See In re Picard, Tr. for Liquidation\\n\\nof Bernard L. Madoff Inv. Sec. LLC, 917 F.3d 85, 95 (2d Cir. 2019). As the Supreme\\n\\nCourt explained in RJR Nabisco, “[t]he question of RICO’s extraterritorial\\n\\napplication really involves two questions. First, do RICO’s substantive\\n\\nprohibitions, contained in § 1962, apply to conduct that occurs in foreign\\n\\ncountries? Second, does RICO’s private right of action, contained in § 1964(c),\\n\\napply to injuries that are suffered in foreign countries?” 136 S. Ct. at 2099.\\n\\n To resolve this appeal, we must decide (1) whether the conduct violating the\\n\\npredicate statutes was extraterritorial, (2) whether the application of civil RICO to\\n\\nBascuñán’s alleged injuries (i.e., the fraudulent schemes) is extraterritorial, and (3)\\n\\nwhether the surviving schemes amount to a pattern of racketeering activity. The\\n\\n\\n\\n\\n 16\\n\\fdistrict court faulted different aspects of the SAC on all three issues. We begin, as\\n\\ndid the parties and the district court, with the second issue.\\n\\n I. All but One of Bascuñán’s Injuries Are Domestic Under § 1964(c).\\n\\n We review de novo a district court’s grant of a motion to dismiss under\\n\\nFederal Rule of Civil Procedure 12(b)(6), accepting all factual allegations in the\\n\\ncomplaint as true and drawing all reasonable inferences in favor of the plaintiff.\\n\\nCaro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010). The Supreme Court has directed\\n\\nus to employ a “two‐step framework” where, as here, a case implicates\\n\\nextraterritoriality issues. “At the first step, we ask whether the presumption\\n\\nagainst extraterritoriality has been rebutted—that is, whether the statute gives a\\n\\nclear, affirmative indication that it applies extraterritorially. . . . If the statute is not\\n\\nextraterritorial, then at the second step we determine whether the case involves a\\n\\ndomestic application of the statute.” RJR Nabisco, 136 S. Ct. at 2101.\\n\\n The Supreme Court has already held that civil RICO does not rebut the\\n\\npresumption against extraterritoriality. Id. at 2111. Therefore, “[t]he . . . question\\n\\non appeal subject to our de novo review . . . is whether Bascuñán plausibly alleged\\n\\na domestic injury to business or property.” Bascuñán I, 874 F.3d at 814. Whether an\\n\\ninjury is domestic “will, as a general matter, depend on the particular facts alleged\\n\\n\\n\\n\\n 17\\n\\fin each case.” Id. at 817–18. Absent extraordinary circumstances, “when a foreign\\n\\nplaintiff maintains tangible property in the United States, the misappropriation of\\n\\nthat property constitutes a domestic injury.” Id. at 814; see id. at 820.\\n\\n In Bascuñán I, we held based on the allegations in the FAC that the BCI Share\\n\\nTheft and New York Trust Account schemes involved domestic injuries because\\n\\nthey “allege[d] that certain property—although belonging to a foreign owner—\\n\\nwas located within the United States when it was stolen.” Id. at 820. We found that\\n\\nthe BCI Share Theft injury occurred in New York because Bascuñán claimed that\\n\\nElsaca stole physical bearer shares from a New York safety deposit box. See id. at\\n\\n824. The New York Trust Account Scheme involved financial, rather than tangible,\\n\\nproperty. Id. at 822. But we rejected any distinction between these categories,\\n\\nfinding that the misappropriation of funds held in a bank account is “analogous\\n\\nto an injury to tangible property . . . [meaning] property that can be fairly said to\\n\\nexist in a precise location.” Id. at 820. Because the bank accounts were located inside\\n\\nthe United States, the alleged theft of funds deposited in those accounts was\\n\\ndomestic conduct. Id. at 823.\\n\\n By contrast, the remaining schemes concerned property that was located\\n\\noutside the United States when it was allegedly misappropriated. We affirmed the\\n\\n\\n\\n\\n 18\\n\\fcourt’s finding that those schemes were impermissibly extraterritorial as pleaded\\n\\nin the FAC, emphasizing that “the use of bank accounts located within the United\\n\\nStates to facilitate or conceal the theft of property located outside of the United\\n\\nStates does not, on its own, establish a domestic injury.” See id. at 819.12\\n\\n As Elsaca has not argued to the contrary in either the district court or this\\n\\nCourt, we find that the New York Trust Account and BCI Share Theft schemes as\\n\\npleaded in the SAC continue to allege domestic conduct. See, e.g., Yarur Bascuñan,\\n\\n338 F. Supp. 3d at 314 (“Defendants concede that the alleged misappropriation of\\n\\nfunds from the Afghan Trust in New York for the purpose of generating sham fees\\n\\nsatisfies RICO’s domestic injury requirement.”). Because Bascuñán I held that most\\n\\nof the remaining injuries were extraterritorial as alleged in the FAC, the key\\n\\nquestion here is whether the SAC’s newly pleaded allegations assert the necessary\\n\\ndomestic nexus.\\n\\n\\n\\n\\n12Bascuñán I did not address the Tarascona Misappropriation Scheme because it was not\\npleaded in the FAC. See id. at 819 n.53.\\n\\n\\n\\n\\n 19\\n\\f The Fintair Misappropriation Involved a Domestic\\n Injury.\\n\\n The crux of the Fintair allegation is that Elsaca caused Anacapri to acquire\\n\\nFintair, opened a New York‐based Morgan Stanley bank account in Fintair’s name,\\n\\nfilled the account with money from the Estate’s presumably foreign accounts, and\\n\\nthen sent this money from the New York bank account to himself and others in\\n\\nroughly 500 transfers. Unlike the SAC, the FAC at issue in Bascuñán I did not allege\\n\\nthat the Bascuñán Estate owned Fintair or that Elsaca transferred Bascuñán’s\\n\\nmoney out of a domestic bank account.\\n\\n Both sides agree that Bascuñán’s injuries occurred at the times of the alleged\\n\\nthefts or misappropriations. The dispute is over when the theft or misappropriation\\n\\noccurred and, transitively, where the funds were located when Elsaca stole them.\\n\\nElsaca maintains that any theft or misappropriation occurred when Elsaca moved\\n\\nEstate funds from Bascuñán’s foreign bank accounts into Bascuñán’s New York\\n\\nFintair account. Thus, he concludes, Bascuñán’s injury took place abroad.\\n\\nBascuñán argues that this initial transfer to Fintair was simply a transfer from one\\n\\nEstate account to another because the Estate owned Fintair and its New York bank\\n\\naccount. On that basis, he concludes that the theft and misappropriation occurred\\n\\n\\n\\n\\n 20\\n\\fwhen Elsaca subsequently made the roughly 500 transfers from Fintair’s New\\n\\nYork bank account, as only then did the money leave the Estate. Under this theory,\\n\\nthe injury occurred in the United States.\\n\\n We agree with Bascuñán. The Estate owned Fintair when Elsaca transferred\\n\\nmoney into and out of its New York bank account, a fact Elsaca conceded in a\\n\\ndeclaration he submitted to the district court. See J.A. 240–41 (stating that from\\n\\n2003 through 2009, “Fintair was owned by [Bascuñán]”). Thus, Elsaca’s transfers\\n\\nof the Estate’s money into Fintair’s New York bank account were simply transfers\\n\\nfrom one Bascuñán account to another, made by an individual who had the\\n\\ncolorable authority to order these transfers under his broad power of attorney. The\\n\\nalleged theft or misappropriation occurred when the funds left the Estate, at which\\n\\ntime they were located in a Morgan Stanley bank account in New York.\\n\\n Adopting Elsaca’s theory would effectively require us to conclude that the\\n\\nBascuñán Estate stole money from itself. Although Bascuñán was unaware that\\n\\nElsaca had opened the Fintair account and filled it with the Estate’s money,\\n\\nBascuñán nonetheless owned the account through his ownership of Fintair. The\\n\\nSAC supports a reasonable inference that he could have accessed the funds at any\\n\\n\\n\\n\\n 21\\n\\ftime had he known about the account.13 It is possible that Elsaca violated some\\n\\nfiduciary duty by transferring funds from foreign Estate accounts into the New\\n\\nYork Fintair account.14 But the SAC leaves little doubt that the injury Bascuñán\\n\\npleads is that Elsaca stole the Estate’s money, not that he improperly moved it.15\\n\\n Our conclusion that Bascuñán adequately pleaded a domestic injury is\\n\\nreinforced by our jurisprudence surrounding fraud offenses, and particularly the\\n\\nlaw of embezzlement, which the Supreme Court has described as the “linguistic\\n\\nneighbor” of fraud. See Bullock v. BankChampaign, N.A., 569 U.S. 267, 274 (2013). An\\n\\n\\n\\n13Indeed, the SAC suggests that Elsaca’s decision to initially move the $37,850,000 of\\nEstate funds into the Fintair account was an integral part of the scheme. The allegation is\\nnot that Elsaca stole the money all at once, but that he slowly siphoned it from Fintair\\ninto a network of shell corporations in more than 500 separate transfers taking place over\\nmany years.\\n14 Elsaca’s argument for affirmance on this theory is conclusory and provides no\\npersuasive basis for us to find that any fiduciary violation amounted to the theft or\\nmisappropriation alleged in the SAC. For this reason, and because we affirmatively\\nconclude that the theft and misappropriation occurred when Elsaca transferred funds out\\nof the Fintair account, we express no opinion on whether Elsaca’s transfers from one\\nEstate account to another were unlawful.\\n15For similar reasons, we disagree with the district court’s view that “the SAC alleges [at\\nmost] that banks located in New York were used to facilitate or conceal the theft of\\nproperty taken from outside the United States.” Yarur Bascuñan, 338 F. Supp. 3d at 313\\n(emphasis omitted). The money left the Estate when Elsaca transferred it out of Fintair’s\\nNew York bank account and into his own accounts. This is a misappropriation of\\nproperty located inside the United States, not the mere use of a domestic account to\\nfacilitate or conceal a misappropriation that had previously occurred.\\n\\n\\n\\n\\n 22\\n\\findividual traditionally commits embezzlement “when he: (1) with intent to\\n\\ndefraud; (2) converts to his own use; (3) property belonging to another, in a\\n\\nsituation where (4) the property initially lawfully came within his possession or\\n\\ncontrol.” United States v. Sampson, 898 F.3d 270, 277 (2d Cir. 2018). The crime of\\n\\nembezzlement therefore “builds on the concept of conversion,” which “involves\\n\\nan act of control or dominion over the property that seriously interferes with the\\n\\nowner’s rights.” United States v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986); see also\\n\\nBullock, 569 U.S. at 274 (“[A]s commonly used, ‘embezzlement’ requires\\n\\nconversion.”). And as the Fourth Circuit has noted, “[t]here can, of course, be no\\n\\ninterference with the owner’s rights to the property if the owner has given\\n\\npermission to the act in question.” Id.\\n\\n Elsaca conceded at oral argument that, until he transferred the funds from\\n\\nEstate accounts to his own personal accounts, he was acting lawfully pursuant to\\n\\nhis broad power of attorney, i.e., the permission granted to him by Bascuñán.\\n\\nMoreover, according to the SAC, until Elsaca transferred those funds, Bascuñán\\n\\ncould have accessed the Estate accounts in New York. Thus, it follows that\\n\\nBascuñán was not injured until Elsaca interfered with Estate property and\\n\\nconverted it to his own use in the United States. This conclusion accords with our\\n\\n\\n\\n\\n 23\\n\\fdecision in McCarthy, where we held that a certified public accountant completed\\n\\nthe crime of embezzlement when he, without authorization, transferred funds from\\n\\ntrust accounts into personal accounts that he controlled. United States v. McCarthy, 271\\n\\nF.3d 287, 395 (2d Cir. 2001).\\n\\n Once we recognize that Bascuñán’s injuries occurred when Elsaca\\n\\ntransferred money out of the New York Fintair account, the Fintair\\n\\nMisappropriation Scheme looks almost exactly like the New York Trust Account\\n\\nScheme. For each of them, Bascuñán alleges that Elsaca stole money from a New\\n\\nYork bank account belonging to the Estate. See Bascuñán I, 874 F.3d at 820.\\n\\nMoreover, Bascuñán I noted that “[f]oreign persons and entities that own private\\n\\nproperty located within the United States expect that our laws will protect them\\n\\nin the event of damage to that property. That modest expectation is entirely\\n\\njustified, especially when we consider that a foreign resident’s property located in\\n\\nthe United States is otherwise subject to all of the regulations imposed on private\\n\\nproperty by American state and federal law.” Id. at 821. In assessing the New York\\n\\nTrust Account Scheme, Bascuñán I held that this allegation states a domestic\\n\\ninjury—the theft of property located inside the United States. See id. at 823. The\\n\\nsame conclusion applies here.\\n\\n\\n\\n\\n 24\\n\\f The Tarascona Misappropriation Involved a\\n Domestic Injury.\\n\\n This logic also applies to the Tarascona Misappropriation. The SAC alleges\\n\\nthat Elsaca opened eleven New York bank accounts in Tarascona’s name, filled\\n\\nthem with money from the Estate’s foreign accounts, and over time transferred the\\n\\nmoney out of the Estate. It also alleges that the Estate owned Tarascona and its\\n\\nbank accounts. Thus, the transfers to Tarascona’s New York accounts were intra‐\\n\\nEstate transfers, and the theft occurred when Elsaca transferred the money out of,\\n\\nnot into, those accounts. These are domestic injuries.\\n\\n The Sham Anacapri Sale Involved a Domestic\\n Injury.\\n\\n The Sham Anacapri Sale allegation is that Elsaca caused Bascuñán’s\\n\\ncompanies to sell their stakes in Anacapri—at one third of their book value—to a\\n\\nChilean corporation owned by Elsaca. Bascuñán claims that this fraudulent sale\\n\\nconstituted a domestic injury because Anacapri owned Fintair, Fintair’s assets\\n\\nwere held in a New York bank account, and the unlawful sale thus involved the\\n\\n\\n\\n\\n 25\\n\\ftheft or misappropriation of property located in the United States. We agree to the\\n\\nextent that Bascuñán alleges a misappropriation through the sale of Fintair.16\\n\\n The BCI Dividend Misappropriation Involved a\\n Domestic Injury.\\n\\n The BCI Dividend Misappropriation allegation is that Elsaca stole dividends\\n\\nearned on the BCI shares by diverting them to the Fintair account and then\\n\\nwithdrawing them for personal use. For the reasons stated above, the injuries\\n\\noccurred when Elsaca stole money from a New York bank account. Again, the\\n\\nEstate’s New York accounts did not merely facilitate the fraud but were instead\\n\\nthe targets of the fraud. These injuries thus satisfy RICO’s domestic‐injury\\n\\nrequirement to the extent Bascuñán alleges that the dividends were diverted to\\n\\nFintair’s New York account and then misappropriated through the sale of Fintair.\\n\\n As Alleged, the Sham Management Fees Scheme\\n Did Not Involve a Domestic Injury.\\n\\n Bascuñán concedes that he does not know where the injuries caused by the\\n\\nSham Management Fees Scheme took place because he does not know the\\n\\n\\n\\n16In his brief, Elsaca does not argue that the assets Fintair held in New York constituted\\nonly a small percentage of Anacapri’s total assets at the time of the Anacapri sale. Thus,\\nwe are not asked to determine the location of Bascuñán’s injury based on the distribution\\nof Anacapri’s assets abroad.\\n\\n\\n\\n\\n 26\\n\\flocations of the accounts from which Elsaca withdrew the relevant funds. He asks\\n\\nthat we remand on this issue to allow discovery on the locations of the accounts.\\n\\nBecause the SAC does not allege that these injuries took place in the United States,\\n\\nthe district court correctly held that this scheme is impermissibly extraterritorial\\n\\nas pleaded. However, should Bascuñán learn additional facts during discovery\\n\\nindicating that these injuries were domestic, the court in its discretion may allow\\n\\nhim to allege these facts in an amended complaint.\\n\\n ***\\n\\n In sum, each of the injuries alleged in the SAC, except for the Sham\\n\\nManagement Fees Scheme, calls for a domestic application of civil RICO.\\n\\n II. The Mail, Wire, and Bank Fraud Statutes Focus on Domestic Conduct\\n as Applied to the Remaining Alleged Schemes to Defraud.\\n\\n The next issue is whether the civil RICO claims involve domestic\\n\\napplications of the relevant predicate statutes. RJR Nabisco, 136 S. Ct. at 2101. The\\n\\npredicates and their corresponding statutes are: (1) mail and wire fraud, 18 U.S.C.\\n\\n§§ 1341 and 1343; (2) money laundering, id. §§ 1956 and 1957; (3) bank fraud, id.\\n\\n§ 1344; and (4) violations of the Travel Act, id. § 1952.\\n\\n\\n\\n\\n 27\\n\\f The Mail and Wire Fraud Statutes Regulate\\n Domestic Conduct as Applied to the Alleged\\n Schemes to Defraud.\\n\\n As outlined above, extraterritoriality concerns give way when “either the\\n\\nstatute indicates its extraterritorial reach or the case involves a domestic\\n\\napplication of the statute.” In re Picard, 917 F.3d at 95. The mail and wire fraud\\n\\nstatutes do not indicate an extraterritorial reach. See European Cmty. v. RJR Nabisco,\\n\\nInc., 764 F.3d 129, 141 (2d Cir. 2014), rev’d on other grounds, 136 S. Ct. 2090 (2016).\\n\\nThus, Bascuñán can employ them only if they apply to domestic conduct on these\\n\\nfacts. We therefore must determine whether the conduct relevant to their “focus”\\n\\noccurred in the United States. See In re Picard, 917 F.3d at 96 (quoting RJR Nabisco,\\n\\n136 S. Ct. at 2101). “The focus of a statute is the conduct it seeks to regulate, as well\\n\\nas the parties whose interests it seeks to protect.” Id. at 97.\\n\\n 1. The Mail and Wire Fraud Statutes Focus on\\n Domestic Conduct when the Use of Domestic\\n Mail or Wires Was a Core Component of the\\n Scheme to Defraud.\\n\\n The mail and wire fraud statutes, whose labyrinthine language is better\\n\\ntaken abridged, “criminalize the use of the mails or wires in furtherance of ‘any\\n\\nscheme or artifice to defraud, or for obtaining money or property by means of false\\n\\n\\n\\n\\n 28\\n\\for fraudulent pretenses, representations, or promises.’” Skilling v. United States,\\n\\n561 U.S. 358, 369 n.1 (2010) (quoting 18 U.S.C. § 1341 (mail fraud); id. § 1343 (wire\\n\\nfraud)). “Because the mail fraud and the wire fraud statutes use the same relevant\\n\\nlanguage, we analyze them the same way.” United States v. Weaver, 860 F.3d 90, 94\\n\\n(2d Cir. 2017) (citation omitted).\\n\\n The “focus” of these statutes for the purpose of the presumption against\\n\\nextraterritoriality is a question of first impression in our circuit. See European Cmty.,\\n\\n764 F.3d at 142–43 & n.14. The district court, relying on other district court\\n\\nopinions, concluded that both statutes focus on the “scheme to defraud,” which\\n\\nmust have been “planned, managed, and directed” from within the United States.\\n\\nYarur Bascuñan, 338 F. Supp. 3d at 314–15. Elsaca agrees. The courts in this circuit\\n\\nare not of one mind on the focus of these statutes.17 It will come as no surprise that\\n\\n\\n17See, e.g., United States v. Gasperini, No. 16 Crim. 441 (NGG), 2017 WL 2399693, at *8\\n(E.D.N.Y. June 1, 2017) (“[A] complaint alleges a domestic application of wire fraud when\\n(1) a defendant or coconspirator commits a substantial amount of conduct in the United\\nStates, (2) the conduct is integral to the commission of the scheme to defraud, and (3) at\\nleast some of the conduct involves the use of U.S. wires in furtherance of the scheme to\\ndefraud.” (citation omitted)); United States v. Hawit, No. 15 Crim. 252 (PKC), 2017 WL\\n663542, at *5 (E.D.N.Y. Feb. 17, 2017) (“[I]n a given case, a court must conduct a more\\nholistic assessment of the conduct that constitutes the alleged fraud scheme, including\\nconsideration of whether the scheme involves only incidental or minimal use of U.S.\\nwires.”); Reich v. Lopez, 38 F. Supp. 3d 436, 448 (S.D.N.Y. 2014) (“As long as enough\\n\\n\\n\\n\\n 29\\n\\fBascuñán proposes several alternative theories drawn from other lower court\\n\\nopinions within the circuit.\\n\\n Because the focus of a statute includes the conduct it seeks to regulate, see In\\n\\nre Picard, 917 F.3d at 97, our analysis begins by identifying that conduct. There are\\n\\nthree “essential elements” to mail or wire fraud: “(1) a scheme to defraud, (2)\\n\\nmoney or property as the object of the scheme, and (3) use of the mails or wires to\\n\\nfurther the scheme.” Weaver, 860 F.3d at 94 (citation omitted, emphasis added). These\\n\\nelements make clear that the regulated conduct is not merely a “scheme to\\n\\ndefraud,” but more precisely the use of the mail or wires in furtherance of a scheme to\\n\\ndefraud.\\n\\n At least three of our sister circuits, though not in the context of applying the\\n\\npresumption against extraterritoriality, have described the focus of these statutes\\n\\n\\n\\n\\ndomestic conduct exists to fulfill the requirements of . . . wire fraud, it is irrelevant that\\nthose statutes are further violated by conduct that is extraterritorial in nature.”), aff’d, 858\\nF.3d 55 (2d Cir. 2017).\\n\\n\\n\\n\\n 30\\n\\fin substantially identical terms.18 The Supreme Court has done the same for over\\n\\na century.19\\n\\n While this principle guides our approach to the domestic‐conduct question,\\n\\nwe are mindful that “events . . . merely incidental to the [violation of a statute]” do\\n\\nnot have “primacy for the purposes of the extraterritoriality analysis.” WesternGeco\\n\\nLLC v. ION Geophysical Corp., 138 S. Ct. 2129, 2138 (2018); see also Morrison v. Nat’l\\n\\nAustl. Bank Ltd., 561 U.S. 247, 266 (2010) (“[T]he presumption against\\n\\nextraterritorial application would be a craven watchdog indeed if it retreated to its\\n\\n\\n18 See, e.g., United States v. Garlick, 240 F.3d 789, 792 (9th Cir. 2001) (“The focus of the mail\\nand wire fraud statutes is upon the misuse of the instrumentality of communication.”\\n(brackets omitted) (quoting United States v. Alston, 609 F.2d 531, 536 (D.C. Cir. 1979)));\\nUnited States v. Jefferson, 674 F.3d 332, 366 (4th Cir. 2012) (“In a mail or wire fraud\\nprosecution, the mailing or wire transmission itself—i.e., misuse of the mail or wire—has\\nconsistently been viewed as the actus reus that is punishable by federal law.”). Although\\nit did so in an unpublished decision under plain‐error review, the Ninth Circuit has held\\nin the context of applying the presumption against extraterritoriality that the conduct the\\nwire fraud statute seeks to regulate is not “the scheme to defraud,” but “the misuse of the\\ninstrumentality of communication.” United States v. Driver, 692 F. App’x 448, 449 (9th Cir.\\n2017) (summary order), cert. denied, 138 S. Ct. 1304 (2018).\\n19 See, e.g., Skilling, 561 U.S. at 369 n.1 (“The mail‐ and wire‐fraud statutes criminalize the\\nuse of the mails or wires in furtherance of any scheme or artifice to defraud . . . .” (citation\\nand quotation marks omitted)); Badders v. United States, 240 U.S. 391, 393 (1916) (Holmes,\\nJ.) (rejecting an argument that the use of mail was “a mere incident of a fraudulent scheme\\nthat itself is outside the jurisdiction of Congress to deal with,” because “[t]he overt act of\\nputting a letter into the postoffice of the United States is a matter that Congress may [and\\ndid] regulate”).\\n\\n\\n\\n\\n 31\\n\\fkennel whenever some domestic activity is involved in the case.”). For this reason,\\n\\nthe use of the mail or wires must be essential, rather than merely incidental, to the\\n\\nscheme to defraud.\\n\\n We therefore hold that a claim predicated on mail or wire fraud involves\\n\\nsufficient domestic conduct when (1) the defendant used domestic mail or wires\\n\\nin furtherance of a scheme to defraud, and (2) the use of the mail or wires was a\\n\\ncore component of the scheme to defraud.20\\n\\n The district court’s rule would effectively immunize offshore fraudsters\\n\\nfrom mail or wire fraud. That outcome is inconsistent with European Community,\\n\\n764 F.3d 129. There, we concluded that RICO plaintiffs stated claims for domestic\\n\\nmail and wire fraud by alleging, among other things, “that the Defendants\\n\\nmanaged their global money laundering schemes from the United States through\\n\\n\\n\\n\\n20In European Community, 764 F.3d 129, we held in describing the mail and wire fraud\\nstatutes that “[i]f domestic conduct satisfies every essential element to prove a violation\\nof a United States statute that does not apply extraterritorially, that statute is violated\\neven if some further conduct contributing to the violation occurred outside the United\\nStates.” 764 F.3d at 142. Our holding here does not disturb that rule. See also id. (leaving\\nthe “focus” question open “because wherever [the] line [between domestic and\\nextraterritorial applications of the statutes] should be drawn, the conduct alleged here\\nclearly states a domestic cause of action”).\\n\\n\\n\\n\\n 32\\n\\fforeign . . . communications,” and “that the schemes themselves were directed at\\n\\nthe United States and had substantial domestic effects.” Id. at 141.21 We make clear\\n\\ntoday what European Community implied: while a defendant’s location is relevant\\n\\nto whether the regulated conduct was domestic, the mail and wire fraud statutes\\n\\ndo not give way simply because the alleged fraudster was located outside the\\n\\nUnited States.\\n\\n 2. The Use of the Mail or Wires Furthered the\\n Alleged Schemes to Defraud.\\n\\n The district court and the parties focused their analyses of this issue almost\\n\\nexclusively on the New York Trust Account Scheme.\\n\\n The SAC alleges that the New York Trust Account Scheme involved two\\n\\ntypes of fraud: Elsaca transferring sham advisory fees to himself, and Elsaca\\n\\ntransferring sham legal fees to Silva. The essence of both allegations is that Elsaca\\n\\ncreated the bogus Capri Star Trust, funded its New York bank account with money\\n\\nfrom the Afghan Trust, and then used domestic mail and wires to order UBS—\\n\\n\\n\\n21See also id. at 142 (“If domestic conduct satisfies every essential element to prove a\\nviolation of a United States statute that does not apply extraterritorially, that statute is\\nviolated even if some further conduct contributing to the violation occurred outside the\\nUnited States.”).\\n\\n\\n\\n\\n 33\\n\\flocated in New York—to transfer millions of dollars from that account to himself\\n\\nand Silva.22 The SAC supports a reasonable inference that the repeated use of\\n\\ndomestic mail and wires to fraudulently order a domestic bank to transfer millions\\n\\nof dollars out of a domestic account was a core component of the alleged scheme\\n\\nto defraud.23\\n\\n The same reasoning applies to the remaining schemes. A core component of\\n\\neach allegation is that Elsaca repeatedly used domestic mail or wires to order a\\n\\nNew York bank to fraudulently transfer money out of a New York bank account.\\n\\n Accordingly, for each of the schemes to defraud alleged in the SAC, the mail\\n\\nand wire fraud statutes focus on domestic conduct.24\\n\\n\\n\\n\\n22See J.A. 618 (alleging Elsaca “typically authorized the [sham advisory fees] by either\\nwire or mail to UBS employees in New York”); id. at 620 (alleging that “on a biannual\\nbasis, starting in October 2001, Silva mailed invoices to the Capri Star Trust in New York\\nseeking payment of legal fees in the amount of $20,000”); id. (alleging Elsaca authorized\\nthe transfers to Silva “by wire or mail to UBS employees in New York”).\\n23The SAC does not allege that the banks knowingly participated in the fraud or were\\neven aware that Elsaca was stealing the Estate’s money. In fact, it alleges the opposite—\\nthat Elsaca duped UBS into believing these transfers were payments for legitimate\\nservices.\\n24We make no finding with respect to the Sham Management Fees Scheme, as we find\\nthis scheme is impermissibly extraterritorial under civil RICO.\\n\\n\\n\\n\\n 34\\n\\f The Bank Fraud Statute Regulates Domestic\\n Conduct as Applied to the Alleged Schemes to\\n Defraud.\\n\\n The bank fraud statute states:\\n\\n Whoever knowingly executes, or attempts to execute, a scheme or\\n artifice—\\n\\n (1) to defraud a financial institution; or\\n\\n (2) to obtain any of the moneys, funds, credits, assets, securities,\\n or other property owned by, or under the custody or control of,\\n a financial institution, by means of false or fraudulent\\n pretenses, representations, or promises;\\n\\n shall be fined not more than $1,000,000 or imprisoned not more than\\n 30 years, or both.\\n\\n18 U.S.C. § 1344. The bank fraud statute does not purport to apply to\\n\\nextraterritorial conduct. “When a statute gives no clear indication of an\\n\\nextraterritorial application, it has none.” Morrison, 561 U.S. at 255. We therefore\\n\\nreturn to the domestic‐conduct prong of the extraterritoriality framework.\\n\\n 1. Section 1344(2) of the Bank Fraud Statute\\n Focuses on a Scheme to Obtain Property\\n Owned or Controlled by a Bank Under False\\n or Fraudulent Pretenses.\\n\\n As the text of the bank fraud statute makes clear, the conduct it proscribes\\n\\nis knowingly executing a scheme to (1) defraud a financial institution or (2)\\n\\n\\n\\n\\n 35\\n\\ffraudulently obtain assets owned by or under the custody of a financial institution.\\n\\nSee 18 U.S.C. § 1344. We construe the SAC to rely on the second category.\\n\\n As the Supreme Court has explained, “§ 1344(2) requires that a defendant\\n\\n‘knowingly execute, or attempt to execute, a scheme or artifice’ with at least two\\n\\nelements”: (1) that the defendant intended to obtain property owned or controlled\\n\\nby a bank, and (2) that the envisioned result would have occurred, or did occur,\\n\\nby false pretenses, representations, or promises. Loughrin v. United States, 573 U.S.\\n\\n351, 355 (2014) (quoting 18 U.S.C. § 1344) (brackets omitted).25 Thus, the conduct\\n\\nthat § 1344(2) seeks to regulate, and its focus, is a scheme to obtain property owned\\n\\nor controlled by a bank under false or fraudulent pretenses. Though we do not\\n\\nforeclose other possibilities, this conduct is domestic when a core component of\\n\\nthe scheme to defraud was the use of domestic mail or wires to direct the theft or\\n\\nmisappropriation of property located within the United States and held by a\\n\\ndomestic bank.\\n\\n\\n\\n\\n25The Court rejected a third possible element, “that the defendant intended to defraud a\\nbank.” Id. at 356.\\n\\n\\n\\n\\n 36\\n\\f 2. The Schemes to Obtain Property Controlled\\n by New York Banks Involved Domestic\\n Conduct.\\n\\n As previously noted, the crux of the New York Trust Account Scheme is that\\n\\nElsaca ordered New York banks to transfer the Estate’s property out of its New\\n\\nYork bank accounts and into accounts belonging to Elsaca and Silva. The SAC\\n\\nalleges these transfers were for “sham fees” because Elsaca and Silva did not\\n\\nperform the invoiced advisory and legal services.\\n\\n The SAC clearly alleges the New York Trust Account Scheme was “a scheme\\n\\n. . . to obtain any of the moneys . . . under the custody or control of, a [domestic]\\n\\nfinancial institution, by means of false or fraudulent pretenses, representations, or\\n\\npromises.” See 18 U.S.C. § 1344(2). For the reasons stated in our analysis of the mail\\n\\nand wire fraud statutes, a core component of this scheme was Elsaca ordering UBS\\n\\nvia the mail and wires to transfer money out of the Estate’s New York bank\\n\\naccount. Thus, the New York Trust Account Scheme calls for a domestic\\n\\napplication of the bank fraud statute.\\n\\n The other alleged schemes involve the same domestic conduct—domestic\\n\\nmail or wire transmissions facilitating the theft or misappropriation of property\\n\\n\\n\\n\\n 37\\n\\fheld in New York by a domestic bank. We accordingly find that § 1344(2) focuses\\n\\non domestic conduct as applied to each of the alleged schemes to defraud.\\n\\n III. The Surviving Schemes State a Pattern of Racketeering Activity.\\n\\n After holding that every scheme was impermissibly extraterritorial except\\n\\nthe BCI Share Theft Scheme, the district court found that Bascuñán failed to allege\\n\\na pattern of racketeering activity with respect to that one scheme. As the court\\n\\nexplained, a pattern of racketeering activity requires at least two related unlawful\\n\\nacts. See, e.g., Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 242 (2d\\n\\nCir. 1999) (citing 18 U.S.C. § 1961(5)). The court concluded that this single scheme\\n\\ndid not suffice. It did not explain how it would have decided the pattern issue had\\n\\nit also weighed the schemes it found impermissibly extraterritorial.\\n\\n As noted above, we find that all of the SAC’s alleged schemes, except for the\\n\\nSham Management Fees Scheme, survive the extraterritoriality framework.\\n\\nAlthough our ordinary practice would be to remand for the district court to\\n\\nreconsider whether Bascuñán has adequately alleged a pattern of racketeering\\n\\nactivity, Elsaca makes no argument in his brief that the numerous schemes, taken\\n\\ntogether, fail to satisfy this standard; he focuses solely on the BCI Share Theft\\n\\nScheme. We therefore find that Elsaca has waived any argument to the contrary,\\n\\n\\n\\n\\n 38\\n\\fand we accordingly hold that the surviving schemes as pleaded in the SAC state a\\n\\npattern of racketeering activity sufficient to survive a motion to dismiss under\\n\\nRule 12(b)(6).26\\n\\n IV. Additional Claims\\n\\n This opinion has thus far focused on Count 1, which alleges a violation of\\n\\n§ 1962(c) of RICO. Count 2 alleges a violation of RICO § 1962(d), which proscribes\\n\\nconspiracies to violate § 1962(c). Because the SAC states a claim under § 1962(c),\\n\\nand the claim involves several individuals conspiring to violate that provision, the\\n\\n§ 1962(d) claim is not impermissibly extraterritorial.\\n\\n Counts 3–5 are state‐law claims. Without addressing their merits, the district\\n\\ncourt declined to exercise supplemental jurisdiction over these claims upon\\n\\ndismissing Bascuñán’s RICO claims. Because we hold that the RICO claims\\n\\nsurvive, we vacate the district court’s dismissal of the state‐law claims. On\\n\\nremand, the court should reconsider whether it will exercise supplemental\\n\\n\\n\\n26We are mindful in reaching this conclusion that this lawsuit has been at the pleading\\nstage since March 17, 2015—for over four years—and has yet to proceed to discovery\\nbecause of the now‐two dismissal orders we have reversed on appeal. We do not,\\nhowever, preclude Elsaca from raising the “pattern of racketeering activity” argument on\\na motion for summary judgment or at trial.\\n\\n\\n\\n\\n 39\\n\\fjurisdiction over these claims in light of our reinstatement of the RICO claims.\\n\\nHowever, because Elsaca does not argue that the state‐law claims are legally\\n\\ninsufficient under Rule 12(b)(6),27 we hold that he has waived any argument to that\\n\\neffect.28\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we hold that each of the schemes to defraud,\\n\\nexcept for the Sham Management Fees Scheme, calls for domestic applications of\\n\\n18 U.S.C. §§ 1962(c), 1962(d), 1341, 1343, and 1344(2). We also hold that the district\\n\\ncourt abused its discretion by dismissing the state‐law claims for lack of\\n\\nsupplemental jurisdiction. We accordingly REVERSE the district court’s judgment\\n\\ndismissing the SAC and REMAND for further proceedings consistent with this\\n\\n\\n\\n\\n27Neither of Elsaca’s arguments for affirming dismissal of these claims has any relation\\nto their merits. Nor is either argument persuasive. His argument that the district court\\ncorrectly dismissed these claims for lack of supplemental jurisdiction after dismissing the\\nfederal claims has no force because the federal claims survive. His alternative argument—\\nthat Bascuñán abandoned his state‐law claims because he “do[es] not mention, let alone\\nchallenge” their dismissal for lack of supplemental jurisdiction, Appellee Br. 49—is\\nincorrect. See Appellant Br. 53 n.11 (“Reversal of the dismissal of the RICO claims requires\\nreinstatement of the state law claims, over which the District Court declined to exercise\\nsupplemental jurisdiction . . . .”).\\n28 However, we do not preclude Elsaca from arguing that these claims are legally\\ninsufficient on a motion for summary judgment or at trial. Cf. note 26, supra.\\n\\n\\n\\n\\n 40\\n\\fopinion. On remand, the court should direct Elsaca to expeditiously file an answer\\n\\nto the SAC so that the action may proceed to discovery.\\n\\n\\n\\n\\n 41\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2396,"cells":{"id":{"kind":"number","value":4629675,"string":"4,629,675"},"name":{"kind":"string","value":"W.A., M.S., Individually and on Behalf of W.E., Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants, v. HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, Defendant-Counter-Claimant-Appellant-Cross-Appellee."},"name_abbreviation":{"kind":"string","value":"W.A., M.S. v. Hendrick Hudson Central School District"},"decision_date":{"kind":"string","value":"2019-06-14"},"docket_number":{"kind":"string","value":"17-3248 (L)"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Kearse, Jacobs, Hall\", \"parties\": \"\", \"opinions\": [{\"author\": \"HALL, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17-3248 (L)\\nW.A., M.S. v. Hendrick Hudson Central School District\\n\\n In the\\n United States Court of Appeals\\n for the\\n Second Circuit\\n August Term, 2018\\n\\n Argued: February 21, 2019\\n Decided: June 14, 2019\\n\\n Docket Nos. 17‐3248, 17‐3313\\n\\n\\n\\n W.A., M.S., INDIVIDUALLY AND ON BEHALF OF W.E.,\\n\\n Plaintiffs‐Counter‐Defendants‐Appellees‐Cross‐Appellants,\\n\\n v.\\n\\n HENDRICK HUDSON CENTRAL SCHOOL DISTRICT,\\n\\n Defendant‐Counter‐Claimant‐Appellant‐Cross‐Appellee. †\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of New York (Karas, J.)\\n No. 14‐3067\\n\\n\\n\\nBefore:\\n KEARSE, JACOBS, HALL, Circuit Judges.\\n\\n\\n† The Clerk of Court is requested to amend the caption to conform to the above.\\n\\fAppeal and cross‐appeal from the September 13, 2017 judgment of the United\\nStates District Court for the Southern District of New York (Karas, J.) incorporating\\nits November 23, 2016 opinion and order granting in part and denying in part the\\nparties’ cross‐motions for summary judgment and its July 18, 2017 opinion and\\norder granting Defendant’s motion for summary judgment and denying Plaintiffs’\\ncross‐motion. We hold that the district court properly deferred to the decision of\\nthe New York State Review Officer (“SRO”), which concluded that student W.E.\\nwas not denied a free and appropriate public education for the eighth‐grade school\\nyear and that Northwood School (“Northwood”) was not an appropriate\\nunilateral private school placement for the ninth‐grade school year, and thus\\naffirm the district court’s November 23, 2016 opinion and order to the extent it\\ngranted summary judgment to Defendant. Because the district court failed to\\naccord appropriate deference to the SRO’s conclusion that Northwood did not\\nprovide W.E. specially designed instruction so as to constitute an appropriate\\nprivate school placement for the tenth‐grade school year, we reverse the portion\\nof the district court’s November 23, 2016 opinion and order granting summary\\njudgment to Plaintiffs and vacate the award of tuition reimbursement to Plaintiffs\\nfor that school year. We also affirm the district court’s July 18, 2017 opinion and\\norder granting Defendant’s motion for summary judgment and vacating the\\naward of compensatory education for the eighth‐grade school year.\\n\\n AFFIRMED IN PART, REVERSED AND VACATED IN PART.\\n\\n\\n\\n DANIEL PETIGROW, (David H. Strong, on the\\n brief), Thomas, Drohan, Waxman, Petigrow\\n & Mayle, LLP, Hopewell Junction, NY, for\\n Defendant‐Counter‐Claimant‐Appellant‐Cross‐\\n Appellee.\\n\\n WILLIAM A. WALSH, New York, NY (Erica\\n M. Fitzgerald, Littman Krooks LLP, White\\n Plains, NY, on the brief), for Plaintiffs‐Counter‐\\n Defendants‐Appellees‐Cross‐Appellants.\\n\\n\\n\\n 2\\n\\f Catherine Merino Reisman, Ellen Saideman,\\n Selene Almazan‐Altobelli, Towson, MD, for\\n Amicus Curiae Council of Parent Attorneys and\\n Advocates, Inc.\\n\\n\\n\\nHALL, Circuit Judge:\\n\\n In the United States District Court for the Southern District of New York\\n\\n(Karas, J.), W.A. and M.S. (“the Parents”), individually and on behalf of their son,\\n\\nW.E., commenced two actions against the Hendrick Hudson Central School\\n\\nDistrict (“the District”) under the Individuals with Disabilities Education Act\\n\\n(“IDEA”), 20 U.S.C. § 1400 et seq. W.E. attended public school in the District and\\n\\nbegan suffering from conventional and abdominal migraines during middle\\n\\nschool, which caused him to miss over 100 days of eighth grade. The District\\n\\neventually classified W.E. as suffering from a disability under the IDEA’s “other\\n\\nhealth impairment” designation, but the Parents were not satisfied with the\\n\\nindividualized education program the District prepared for W.E.’s upcoming\\n\\nninth‐grade school year. The Parents removed W.E. from the District and\\n\\nenrolled him at Northwood School (“Northwood”), a private school in the\\n\\nAdirondacks, for his ninth‐ and tenth‐grade school years. While at Northwood\\n\\n\\n\\n\\n 3\\n\\fW.E.’s absences from school diminished significantly, and he experienced notable\\n\\nimprovement in his social and academic engagement.\\n\\n Following administrative hearings before a New York State Impartial\\n\\nHearing Officer (“IHO”) and cross‐appeals before a State Review Officer (“SRO”),\\n\\nthe Parents brought these two federal court complaints pursuant to Section 1415\\n\\nof the IDEA, 20 U.S.C. § 1415(i)(2)(A). In Case One, the Parents alleged that the\\n\\nDistrict violated W.E.’s right to a free and appropriate public education (“FAPE”)\\n\\nfor his eighth‐ and ninth‐grade school years (2010‐11 and 2011‐12) and challenged\\n\\nthe SRO’s ruling of January 31, 2014, which held that Northwood was not an\\n\\nappropriate placement for ninth grade. In Case Two, the Parents challenged the\\n\\nMarch 18, 2014 decision of the SRO and asserted that the District violated W.E.’s\\n\\nright to a FAPE for his tenth‐grade school year (2012‐13); they again sought tuition\\n\\nreimbursement for their unilateral placement of W.E. at Northwood for tenth\\n\\ngrade. The two actions were consolidated by the district court.\\n\\n On November 26, 2016, the district court affirmed the SRO’s ruling in Case\\n\\nOne in all respects but declined to defer to the SRO in Case Two, holding instead\\n\\nthat Northwood was an appropriate placement during tenth grade and ordering\\n\\nthat the District reimburse the Parents for W.E.’s tuition at Northwood for that\\n\\n\\n 4\\n\\fyear. See W.A. v. Hendrick Hudson Cent. Sch. Dist., 219 F. Supp. 3d 421 (S.D.N.Y.\\n\\n2016). It also granted the District’s motion to amend to add a counterclaim\\n\\nregarding costs awarded by the IHO in Case One. Id. at 484. On July 18, 2017,\\n\\nthe district court granted summary judgment to the District on the counterclaim,\\n\\nvacating the award of compensatory education in the form of counseling\\n\\nreimbursement for the eighth‐grade year based on its affirmance of the SRO’s\\n\\nruling that W.E. was not denied a FAPE for that academic year. 1 See W.A. v.\\n\\nHendrick Hudson Cent. Sch. Dist., No. 14‐CV‐3067 (KMK), 2017 WL 3066888\\n\\n(S.D.N.Y. July 18, 2017).\\n\\n The District appeals the portion of the district court’s November 23, 2016\\n\\ndecision and order awarding summary judgment to the Parents and ordering\\n\\nreimbursement of W.E.’s tuition for his private education at Northwood during\\n\\nW.E.’s tenth‐grade year. The Parents cross‐appeal the portion of the district\\n\\ncourt’s November 23, 2016 opinion and order awarding summary judgment to the\\n\\nDistrict and holding that the District did not violate its “Child Find” obligation\\n\\n\\n\\n\\n1 Under the IDEA, “compensatory education is an available option . . . to make up for denial of a\\nfree and appropriate public education.” P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed., 546 F.3d\\n111, 123 (2d Cir. 2008).\\n\\n\\n 5\\n\\funder the IDEA2 and thus did not deny W.E. a FAPE for the eighth‐grade year in\\n\\naccord with its statutory obligations, and further holding that Northwood was not\\n\\nan appropriate placement for W.E.’s ninth‐grade school year so as to entitle the\\n\\nParents to tuition reimbursement for W.E.’s private education during ninth grade.\\n\\nThe Parents also cross‐appeal the district court’s July 18, 2017 opinion and order\\n\\nawarding summary judgment to the District and vacating the award of\\n\\ncompensatory education for the eighth‐grade school year.\\n\\n Because we hold that the district court properly deferred to the SRO’s\\n\\nconclusions regarding the timeframe during which the District’s Child Find\\n\\nobligation was triggered and its ruling that Northwood failed to provide\\n\\nmeaningful counseling or specially designed instruction for W.E.’s ninth‐grade\\n\\nacademic year, we affirm the district court’s November 23, 2016 opinion and order\\n\\nas to Case One. However, because the district court did not defer to the similarly\\n\\nwell‐reasoned opinion of the SRO which held that Northwood failed to provide\\n\\nspecially designed instruction for the tenth‐grade academic year in spite of W.E.’s\\n\\nprogress in the private school placement, we reverse the district court’s November\\n\\n\\n\\n\\n2 The IDEA’s “Child Find” obligation is explained in the context of our discussion of the statutory\\nframework, see infra, slip op. pp. 7–8.\\n\\n 6\\n\\f23, 2016 opinion and order with respect to Case Two and vacate the award of\\n\\ntuition reimbursement for the tenth‐grade academic year. We affirm the district\\n\\ncourt’s July 18, 2017 opinion and order granting the District’s motion for summary\\n\\njudgment and vacating the award of compensatory education for the eighth‐grade\\n\\nschool year.\\n\\n BACKGROUND\\n\\n I. Statutory Framework\\n\\n This case arises under the IDEA, 20 U.S.C. § 1400 et seq. The IDEA was\\n\\ndesigned, inter alia, to protect the rights of children with disabilities as well as the\\n\\nrights of their parents and “to ensure that all children with disabilities have\\n\\navailable to them a free appropriate public education [“FAPE”] that emphasizes\\n\\nspecial education and related services designed to meet their unique needs and\\n\\nprepare them for further education, employment, and independent living.” Id. §\\n\\n1400(d)(1)(A). The IDEA enforces a “Child Find” obligation which “requires\\n\\neach State to have policies and procedures to ensure that all children with\\n\\ndisabilities are identified and evaluated for special education and related\\n\\nservices.” Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 749 (2d Cir.), cert. denied,\\n\\n139 S. Ct. 322 (2018). A school district must conduct an evaluation of a child\\n\\n\\n 7\\n\\fsuspected of suffering a disability “within a reasonable time” after it receives\\n\\n“notice of a likely disability.” Id. at 750.\\n\\n The IDEA also requires that school districts create an individualized\\n\\neducation program (“IEP”) for each qualifying child. See R.E. v. N.Y.C. Dep’t of\\n\\nEduc., 694 F.3d 167, 175 (2d Cir. 2012) (citing 20 U.S.C. § 1414(d)). “The IEP is the\\n\\ncenterpiece of the IDEA’s education delivery system for disabled children” and\\n\\nserves as the means by which the State delivers a disabled child’s FAPE. Mr. P,\\n\\n885 F.3d at 741 (internal quotation marks and brackets omitted). It constitutes “a\\n\\nwritten statement that sets out the child’s present educational performance,\\n\\nestablishes annual and short‐term objectives for improvements in that\\n\\nperformance, and describes the specially designed instruction and services that\\n\\nwill enable the child to meet those objectives.” R.E., 694 F.3d at 175 (quoting D.D.\\n\\nex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2d Cir. 2006)). In New\\n\\nYork, local Committees on Special Education (“CSEs”) are responsible for\\n\\ndeveloping IEPs and are tasked with identifying an educational program tailored\\n\\nto the student’s particular needs and achievement levels. See id.\\n\\n Parents who believe a child has been denied a FAPE may enroll the child in\\n\\na private school at their own financial risk and seek retroactive reimbursement\\n\\n\\n 8\\n\\ffrom the school district for the cost of the private school. A.C. ex rel. M.C. v. Bd.\\n\\nof Educ. of The Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009). In New\\n\\nYork, such claims are first adjudicated before an IHO and may then be appealed\\n\\nto the SRO. See R.E., 694 F.3d at 175 (citing N.Y. Educ. Law §§ 4404(1)‐(2)). The\\n\\nIDEA provides for judicial review of the SRO’s decision by a federal district court.\\n\\nId. (citing 20 U.S.C. § 1415(i)(2)(A)).\\n\\n II. Factual Background\\n\\n W.E. attended public school in the District through the eighth grade. He\\n\\nperformed well and was engaged in several extracurricular programs until the\\n\\nsixth grade, when he developed severe internal pain that led to an emergency\\n\\nappendectomy and caused him to miss at least 26 days of school. W.E. was\\n\\ndiagnosed with abdominal migraines which persisted throughout seventh grade\\n\\nand which were increasingly compounded by conventional migraines, causing\\n\\nhim to miss at least as many school days as he had the prior year. His headaches\\n\\ncontinued to worsen through the spring of seventh grade when W.E.’s mother,\\n\\n\\n\\n\\n 9\\n\\fM.S., referred W.E. to the District’s Section 504 Committee 3 and requested\\n\\ntutoring, which the District approved.\\n\\n As part of the Section 504 process, Dr. Richard Brodsky, the school\\n\\npsychologist, performed a psycho‐educational evaluation of W.E. That\\n\\nevaluation yielded above‐average scores on a cognitive test measuring W.E.’s\\n\\n“General Intellectual Ability.” W.A., 219 F. Supp. 3d at 430. Except for math\\n\\nfluency, in which W.E. fell into the “low average” range, the evaluation also\\n\\nyielded average to advanced scores on a number of subtests targeted to measure\\n\\nacademic achievement. Id. Dr. Brodsky also administered the Behavior\\n\\nAssessment System for Children‐Second Edition (“BASC‐2”) to W.E. and to two\\n\\nof his teachers on W.E.’s behalf. That assessment generated “at‐risk” scores in\\n\\nthe areas designated “Relations to Parents” and “Attitudes Towards School.” Id.\\n\\nOne of W.E.’s teachers also produced a “clinically significant score” reflecting “a\\n\\nhigh level of maladjustment” as a result of W.E.’s somatization. Id. In June\\n\\n2010, the District’s Section 504 Committee met and found W.E. eligible for an\\n\\naccommodation based upon his migraine disability. The accommodation\\n\\n\\n\\n3 As the district court explained, “[a] Section 504 committee is so named as a reference to § 504 of\\nthe Rehabilitation Act,” 29 U.S.C. § 794. W.A., 219 F. Supp. 3d at 429 n.1.\\n\\n\\n 10\\n\\fconsisted of extra time to complete assignments, nursing services as needed, and\\n\\naccess to class notes and home tutoring.\\n\\n W.E.’s eighth‐grade year was increasingly fraught, with his migraines\\n\\ncausing him to miss a total of more than 100 school days. Although he did well\\n\\nin some classes, he struggled in others, missed some state exams, and became more\\n\\nsocially isolated. W.E. received some of the tutoring to which he was entitled\\n\\nunder his Section 504 plan, but the Parents were not satisfied with the assigned\\n\\ntutor, and efforts to find a replacement interrupted the tutoring before it was\\n\\nrecommenced. In December 2010, M.S. notified the District that she observed her\\n\\nson to be in “crisis” and requested certain interventions; she also contacted Dr.\\n\\nBrodsky, who recommended private relaxation counseling for W.E. Id. at 433.\\n\\nPer M.S.’s request, the District scheduled a meeting for January 5, 2011, to review\\n\\nW.E.’s Section 504 plan, but M.S. later emailed Caroline Almeida, the District’s\\n\\nAssistant Director of Pupil Personnel, to suggest canceling the meeting in light of\\n\\nW.E.’s progress over the winter break and M.S.’s understanding that he “had all\\n\\nthe program modifications in place.” Id. at 434 (brackets omitted).\\n\\n In mid‐January 2011, the Parents began the process of looking into a private\\n\\nschool for W.E.’s upcoming ninth‐grade year. M.S. and W.E. visited Northwood,\\n\\n\\n 11\\n\\fa boarding school in the Adirondacks, in late February 2011. The school is a self‐\\n\\ndescribed small college preparatory school that strives to incorporate the values of\\n\\nintegrity, compassion, responsibility, courage, and respect into its pedagogy and\\n\\noperations. During this initial visit W.E. grabbed M.S.’s coat and asked, “Can I\\n\\ngo here?” Id. at 438. W.E. was admitted, and the Parents paid a deposit and\\n\\nsigned an enrollment contract in March 2011. Later that spring M.S. and W.E.\\n\\nvisited Northwood again with W.A. and confirmed W.E.’s intent to attend in the\\n\\nfall.\\n\\n Meanwhile, throughout the spring of W.E.’s eighth‐grade year, discussions\\n\\nwith the District continued. By April 2011 the Parents had referred W.E. to the\\n\\nlocal CSE to determine his eligibility for special education services under the\\n\\nIDEA’s “other health impairment” (“OHI”) classification; they also requested an\\n\\nemergency Section 504 meeting, which Ms. Almeida promptly scheduled. At\\n\\nthat meeting of April 15, 2011, the Section 504 Committee recommended\\n\\ncounseling. Dr. Brodsky suggested it should take place outdoors. The Section\\n\\n504 Committee also recommended that a psychiatric evaluation be conducted in\\n\\npreparation for the upcoming CSE meeting. An evaluation was scheduled with\\n\\na psychiatrist named Dr. Hahn. Dr. Hahn prepared a report based on his\\n\\n\\n 12\\n\\fconsultation with M.S. but was not able to evaluate W.E. due to his migraines\\n\\nand/or anxiety. His report recommended a holistic approach to helping W.E.\\n\\nlearn how to cope with his stress, including bio‐feedback and relaxation methods,\\n\\nmindfulness training, play therapy, and access to an outdoor adventure‐based\\n\\nprogram.\\n\\n The CSE meeting was held on May 25, 2011, without a psychiatric\\n\\nevaluation. The Parents took issue with a number of aspects of that meeting,\\n\\nincluding the District’s failure to include a parent on the CSE. In advance of a\\n\\nfollow‐up CSE meeting on August 26, 2011, the Parents submitted letters from\\n\\nthree different clinicians who recommended a smaller school environment for\\n\\nW.E. or a non‐mainstream placement. The CSE ultimately classified W.E. as a\\n\\nstudent with a disability under the OHI designation. A draft IEP recommended\\n\\ntwice‐weekly individual counseling, program accommodations consisting of\\n\\naccess to class notes, nursing services, and extra time for completing assignments,\\n\\nand classes with a student‐to‐staff ratio of 8:1:1.\\n\\n Kathleen Coughlin, the District’s director of Pupil Personnel Services, later\\n\\ntestified that she discussed two programs at the August 2011 CSE meeting that\\n\\nmight meet W.E.’s needs for his ninth‐grade year: the BOCES (Board of\\n\\n\\n 13\\n\\fCooperative Educational Services) program in Southern Westchester and the one\\n\\nin Putnam Northern Westchester. According to Ms. Coughlin, she explained to\\n\\nW.E.’s Parents that neither option could be recommended as a final placement\\n\\nuntil the referral process was complete but that the CSE could offer interim home\\n\\ninstruction pending completion of an expedited referral process. The Parents\\n\\nultimately concluded that BOCES was not an appropriate placement for W.E.\\n\\nThey formally withdrew W.E. from the District by letter dated August 30, 2011.4\\n\\n W.E. began private school at Northwood at the start of his ninth‐grade\\n\\nschool year. At Northwood the student‐teacher ratio in W.E.’s classes was below\\n\\n8:1 and W.E. was assigned a nurse as a faculty advisor; another nurse lived on his\\n\\ndormitory floor. Some classes were structured around a large oval table so as to\\n\\nrequire participation from all students, and the school incorporated organized\\n\\nstudy periods as well as outdoor activities into its educational structure.\\n\\nNorthwood ensured that W.E.’s teachers were aware of his accommodation plan,\\n\\nwhich required that W.E. receive additional time for in‐class assignments,\\n\\npreferential seating, graphic organizers or guided notes to facilitate verbal\\n\\n\\n\\n4In November 2011, the Parents visited the programs recommended by the CSE and learned that\\nboth had a student‐to‐teacher ratio of 12:1:1 as opposed to the 8:1:1 ratio proposed in W.E.’s draft\\nIEP.\\n\\n 14\\n\\flectures, and regular sessions with the school counselor. W.E. earned passing\\n\\ngrades in all of his ninth‐grade classes and, more notably, missed only nine days\\n\\nof school due to his migraines. He also grew more socially adjusted, received\\n\\npositive feedback from teachers, and tapered off his mood‐stabilizing medications.\\n\\nDr. Williams later testified that Northwood “appeared to be highly appropriate\\n\\nfor W.E. as reflected in his dramatic improvement in headache frequency that had\\n\\npersisted for the first time in previous years beyond the summer well into the fall\\n\\nterm and its conclusion.” Id. at 442 (brackets omitted). Some of W.E.’s teachers,\\n\\nhowever, indicated that he struggled with organization skills, preparing for class,\\n\\nand handing in assignments on time and that his grades were below his potential.\\n\\nOne teacher cited W.E.’s poor behavior in an incident in which she needed to\\n\\nremove him from class due to rude remarks he made to another student. In\\n\\nFebruary 2012, Northwood accepted W.E.’s re‐enrollment for his tenth‐grade year.\\n\\n In April 2012, the District began formulating a program recommendation\\n\\nfor W.E.’s tenth‐grade year despite W.E.’s attendance in private school. Reports\\n\\nprovided by W.E.’s teachers at Northwood noted his lack of organization, missing\\n\\nclass assignments, and stress‐triggered migraines alongside his strong intellectual\\n\\nabilities. A February 2012 BASC‐2 test showed significant improvement in\\n\\n\\n 15\\n\\fW.E.’s attitude toward school, but the BASC‐2 completed by one of W.E.’s teachers\\n\\nat Northwood rated W.E. “as clinically significant for somatization and at risk for\\n\\nsocial skills.” Id. at 443. The CSE held W.E.’s annual review meeting on June\\n\\n14, 2012. Dr. Williams sent a letter to the CSE in advance of that meeting\\n\\ndescribing W.E.’s “remarkable” progress, which he attributed in part to his\\n\\nplacement at Northwood; Dr. Williams recommended that W.E. not undergo any\\n\\nchange of placement for the upcoming year. Id. At the meeting the Parents also\\n\\nshared their view that W.E. was experiencing fewer migraines, earning average\\n\\ngrades, and engaging in various outdoor activities at Northwood. The IEP that\\n\\nwas finalized for W.E. recommended a student‐teacher ratio of 8:1:1 and\\n\\nparticipation in Southern Westchester BOCES at Irvington High School’s TSP\\n\\n(Therapeutic Support‐Fragile Program). The Parents expressed concerns with\\n\\nthis prospective placement to District officials during a subsequent CSE meeting\\n\\nin August 2012. They rejected the IEP by letter dated September 20, 2012.\\n\\n W.E.’s accommodation plan for his tenth‐grade year at Northwood included\\n\\nthe four previous accommodations from his ninth‐grade year as well as three new\\n\\naccommodations: use of an iPad in class, a supervised study hall, and access to a\\n\\nschool nurse. In addition to continuing what was essentially informal counseling\\n\\n\\n 16\\n\\ffrom the prior year with Donald Mellor, an English teacher and Northwood\\n\\ncounselor, Dr. Williams advocated for “a more systematic psychotherapy\\n\\nprogram,” and in the spring of his tenth‐grade year W.E. began meeting weekly\\n\\nwith a private social worker. Id. at 446–47. Reports from W.E.’s teachers\\n\\nthroughout his tenth‐grade year were again inconsistent, containing a mixture of\\n\\npraise for his academic achievement and criticism of his lack of organization,\\n\\nuneven performance, intermittent lack of engagement, and occasionally\\n\\ninappropriate behavior. W.E. was also able to play soccer and participate in an\\n\\noutdoor program in Yellowstone and seemed to grow in his social comfort and\\n\\nconfidence, though he experienced an especially severe migraine in May 2013.\\n\\nSeveral clinicians later testified that Northwood was appropriate for W.E.’s\\n\\nemotional and mental health needs.\\n\\n III. Administrative Proceedings\\n\\n A. Case One: The Eighth‐ and Ninth‐Grade School Years\\n\\n i. IHO Hearing and Decision\\n\\n In November 2011, W.E.’s Parents requested an impartial hearing, asserting\\n\\nthat the District denied W.E. a FAPE for W.E.’s eighth‐ and ninth‐grade academic\\n\\nyears. The Parents sought reimbursement for W.E.’s tuition at Northwood for\\n\\n\\n 17\\n\\fninth grade and compensatory counseling services for the eighth‐grade school\\n\\nyear. A hearing was conducted before an IHO over nine days between February\\n\\n1 and April 2, 2012.\\n\\n On May 30, 2012, the IHO issued a 37‐page decision in which it concluded\\n\\nthat the District violated its Child Find obligation and failed to provide W.E. with\\n\\na FAPE for W.E.’s eighth‐grade year. According to the IHO, the District’s Child\\n\\nFind obligation was triggered by January 3 of the eighth‐grade school year, by\\n\\nwhich time W.E. had exhibited a pattern of missing an increasingly high number\\n\\nof school days for health reasons and numerous teachers had reported being\\n\\nunable to issue grades for W.E. due to missing assignments. The IHO also noted\\n\\nM.S.’s outreach to Dr. Brodsky during December 2010, which the IHO found also\\n\\nshould have put the District on notice even in the face of M.S.’s sometimes\\n\\nconflicting signals about the status of her son’s wellbeing. Additionally, W.E.’s\\n\\nclinically significant score regarding somatization on the BASC‐2 from the\\n\\nprevious spring had already triggered the accommodations that were developed\\n\\nin W.E.’s June 2010 Section 504 plan, and the IHO noted that by January 3, 2011, it\\n\\nshould have been apparent to the District that this earlier plan was not fulfilling\\n\\nW.E.’s needs. The IHO further concluded that had the CSE timely convened, the\\n\\n\\n 18\\n\\frecord evidence would have supported a finding that W.E. satisfied the criteria for\\n\\nthe IDEA’s OHI designation.\\n\\n The IHO ordered the District to reimburse W.E.’s Parents for therapy\\n\\nsessions that provided Dr. Williams the diagnostic information used in preparing\\n\\nhis August 2011 evaluation report and which the District relied upon in\\n\\ndeveloping W.E.’s IEP. It also ordered reimbursement for five therapy sessions\\n\\nprovided by Dr. Andrew Robins during W.E.’s eighth‐grade year and payment for\\n\\nan additional fifteen hours of counseling. The IHO, however, denied the Parents’\\n\\nrequest for 200 hours of compensatory education in the form of tutoring, due to\\n\\ntheir failure to demonstrate that W.E. was in need of academic remediation.\\n\\n As for W.E.’s ninth‐grade year, the IHO concluded that the District failed to\\n\\nprovide W.E. a FAPE by neglecting to complete timely its evaluation of W.E. and\\n\\narrange for an appropriate placement for that school year. The IHO rejected the\\n\\nDistrict’s argument that the Parents’ failure to produce W.E. for a psychiatric\\n\\nevaluation excused its failure to evaluate W.E. within the 60‐days required by\\n\\napplicable State regulations, reasoning that “the District had the affirmative\\n\\nobligation to get the evaluation conducted even if it meant sending a psychiatrist\\n\\n\\n\\n\\n 19\\n\\fto the student’s home” if it thought the evaluation necessary. 5 Special\\n\\nSupplemental Appendix (“Sp. Supp. App.”) 28.\\n\\n Even though the IHO found that the District denied W.E. a FAPE, it ruled\\n\\nthat the Parents were not entitled to tuition reimbursement because they did not\\n\\nmeet their burden of proving that Northwood was an appropriate placement for\\n\\nW.E. After reviewing in detail the relevant evidence presented by the Parents,\\n\\nincluding testimony offered by Dr. Williams, Dr. Robins, and Mr. Mellor, the IHO\\n\\nconcluded that there was no evidence that Northwood was tailored to addressing\\n\\nany of W.E.’s psychological or emotional issues, which the weight of the testimony\\n\\nindicated were the underlying triggers of his migraines. The IHO noted that\\n\\nNorthwood does not have a psychologist or psychiatrist on staff and that the only\\n\\ncounseling W.E. received at Northwood was in the form of informal check‐ins\\n\\ninitiated by Mr. Mellor. The IHO also found that while W.E. achieved “average\\n\\nto excellent grades,” he continued to exhibit struggles with organization and study\\n\\nskills, which Northwood did not work with him to remedy. Id. at 37. As for\\n\\n\\n\\n\\n5 The IHO rejected the Parents’ argument that the District’s failure to include a parent member\\non the CSE deprived W.E. of a FAPE but found that the District’s failure to include a special\\neducation teacher as well as a general education teacher who was familiar with W.E. on the CSE\\ncontributed to the District’s violation of the IDEA.\\n\\n 20\\n\\fequitable considerations, while not required to weigh them in light of its\\n\\nconclusion that the District’s reimbursement obligation was not triggered, the IHO\\n\\nnonetheless noted that W.E.’s Parents fully cooperated with the District and did\\n\\nnot impede the CSE process. The IHO rejected the District’s argument that the\\n\\nParents never intended to send W.E. anywhere but Northwood, finding instead\\n\\nthat they were open to the District’s recommendations and “lived with very real\\n\\nuncertainty about whether” W.E. would be able to attend Northwood as they had\\n\\nhoped. Id.\\n\\n ii. SRO Appeal and Decision\\n\\n The Parents appealed the IHO’s denial of reimbursement and request for\\n\\ncompensatory education services to the SRO and the District cross‐appealed the\\n\\nIHO’s finding that the District denied W.E. a FAPE for the eighth‐ and ninth‐grade\\n\\nschool years. The SRO ruled that, contrary to the IHO’s finding, the District did\\n\\nnot have reason to suspect that W.E. had a disability requiring special education\\n\\nprior to April 2011 due to W.E.’s overall positive educational progress with the\\n\\naccommodations the District provided him in the Section 504 plan developed in\\n\\nJune 2010. In reaching this conclusion, the SRO cited frequent communications\\n\\nbetween W.E.’s Parents and the District’s personnel between winter 2010 and\\n\\n\\n 21\\n\\fspring 2011 evidencing the District’s commitment to fulfilling W.E.’s June 2010\\n\\nSection 504 plan, M.S.’s incidences of retracting earlier requests for intervention in\\n\\nthe face of W.E.’s improvement and in the interest of maintaining “normalcy” for\\n\\nher son, W.E.’s high level of academic achievement as reflected on his eighth‐grade\\n\\nreport card and state exams, and positive feedback from teachers regarding W.E.’s\\n\\nintellectual abilities, behavior, and attitudes. Id. at 69–72. The SRO also found\\n\\nthat W.E.’s BASC‐2 results from the previous spring were not enough to put the\\n\\nDistrict on notice given that the report did not cite any history of academic\\n\\ndifficulties or current interventions and Dr. Brodsky’s report otherwise credited\\n\\nW.E. with appropriate to above‐average levels of attention, intelligence,\\n\\nconceptual thinking, language, and academic skills. The SRO accordingly\\n\\nreversed the IHO’s finding that the District violated its Child Find obligation for\\n\\nW.E.’s eighth‐grade school year. And it affirmed the IHO’s denial of the Parents’\\n\\nrequest for 200 hours of compensatory home instruction while declining to disturb\\n\\nthe award of counseling reimbursement based on its understanding that the\\n\\nDistrict did not appeal that aspect of the IHO’s ruling.\\n\\n As for W.E.’s ninth‐grade year, the SRO concluded that the District violated\\n\\nthe IDEA by failing to have a finalized IEP in place at the start of ninth grade; it\\n\\n\\n 22\\n\\ftherefore affirmed the IHO’s ruling that W.E. was denied a FAPE for that year.\\n\\nThe SRO next affirmed the IHO’s finding that Northwood was not an appropriate\\n\\nplacement for W.E. entitling the Parents to tuition reimbursement. After\\n\\nreviewing the relevant evidence, the SRO concluded that while W.E.’s social,\\n\\nemotional, and academic functioning improved at Northwood:\\n\\n the hearing record lacks evidence demonstrating that [Northwood]\\n provided instruction that was designed to address the student’s tendencies\\n to develop physical symptoms and exhibit school avoidance when under\\n stress, or his need to develop coping skills to manage stress related to\\n academics and social interactions, and to improve his organizational/study\\n skills related to academics, and, that the instruction that the student received\\n during the 2011‐12 school year was, in fact, available to all students enrolled\\n at [Northwood]. The hearing record fully supports the IHO’s\\n determination that the parents presented no evidence that the student’s\\n underlying emotional issues, organizational issues, or study skills were\\n addressed by [Northwood].\\n\\nId. at 84–85. In light of its conclusion the SRO declined to consider whether the\\n\\nequities supported the Parents’ claim.\\n\\n B. Case Two: The Tenth‐Grade School Year\\n\\n i. IHO Hearing and Decision\\n\\n The Parents filed their Case Two complaint notice in April 2013, alleging\\n\\nthat the District failed to provide W.E. a FAPE for W.E.’s tenth‐grade school year\\n\\nand seeking tuition reimbursement for that year at Northwood. Following a six‐\\n\\n\\n 23\\n\\fday hearing, the IHO issued a decision on December 17, 2013, in which it\\n\\nconcluded that the District’s IEP process failed to account for W.E.’s extraordinary\\n\\ncharacteristics and that the resultant IEP was not responsive or appropriately\\n\\ntailored to W.E.’s needs, thus denying W.E. a FAPE during his tenth‐grade year.\\n\\nIn so ruling, the IHO separately addressed what it identified as the District’s\\n\\nalleged procedural and substantive violations of the IDEA. In the former\\n\\ncategory the IHO found that by recommending both a student‐teacher ratio of 8:1\\n\\nand mainstream placement in Math, English, and Science (which have a student‐\\n\\nteacher ratio of 24:1), W.E.’s IEP contained an internal inconsistency, which the\\n\\nDistrict never attempted to reconcile. The IHO declined to reach the alleged\\n\\nsubstantive violations in light of its conclusion that the District’s IEP constituted a\\n\\nprocedural violation that denied W.E. a FAPE but noted W.E.’s “significant social\\n\\nand educational progress in the prior school year at” Northwood. Supplemental\\n\\nAppendix (“Supp. App.”) 126.\\n\\n The IHO next ruled that by “providing the Student with educational\\n\\ninstruction specially designed to meet his needs, including certain neccesary[sic]\\n\\nsupport services,” Northwood was an appropriate placement for W.E. Id. at 127.\\n\\nThe IHO noted that Northwood’s small class size comported with W.E.’s IEP, and\\n\\n\\n 24\\n\\fthat Northwood assisted W.E. with his need for organization during a free period,\\n\\nin addition to providing two supervised study halls and a nightly study session\\n\\nmonitored by a faculty member. It also found that Northwood’s residential\\n\\nenvironment combined with its mountain location and integration of outdoor,\\n\\nstress‐relieving activities rendered “it uniquely suited to address the Student’s\\n\\nmigraines.” Id. at 129. The IHO additionally emphasized Northwood’s\\n\\ndevelopment of an accommodation plan that was tailored to W.E.’s needs, the\\n\\ninformal counseling sessions the school provided W.E. on a regular basis, and\\n\\nNorthwood’s ability to deliver 24‐hour‐a‐day nursing services. It ruled\\n\\naccordingly that the Parents were entitled to tuition reimbursement.\\n\\n\\n\\n\\n ii. SRO Appeal and Decision\\n\\n On March 18, 2014, the SRO issued a decision in which it agreed with the\\n\\nIHO’s findings regarding the internal inconsistencies in W.E.’s IEP and thus\\n\\naffirmed the IHO’s ruling that W.E. was denied a FAPE. The SRO, however,\\n\\nreversed the portion of the IHO’s decision ruling that Northwood was an\\n\\nappropriate placement for W.E. The SRO reviewed the relevant testimony and\\n\\n\\n 25\\n\\fevidence in detail and found that it was “without question that during the 2012‐\\n\\n13 school year, the student exhibited progress in the sense that except when\\n\\nexperiencing a migraine, he attended classes consistently, achieved grades in the\\n\\n‘A‐’ to ‘C+’ range, and demonstrated increased maturity and ability to socially\\n\\ninteract with peers.” Id. at 109. Despite the accommodations and amenities\\n\\navailable at Northwood, the SRO concluded that:\\n\\n the hearing record does not contain evidence that [Northwood] provided\\n the student with specially designed instruction to meet his ongoing need to\\n develop insight and understanding into what triggered his stress and\\n anxiety, and positive coping skills to address stress and decrease anxiety;\\n difficulties that the hearing record showed not only contributed to the\\n student’s tendency to develop migraine headaches, but also to exhibit\\n organizational deficits and avoidance behaviors.\\n\\nId. The SRO also noted that while W.E. appeared to have benefitted from his\\n\\ninformal counseling with Mr. Mellor, the hearing record did not contain any\\n\\ncounseling notes, progress reports, or other records indicating that the counseling\\n\\nwas addressing W.E.’s “need to develop insight and coping skills,” and that while\\n\\nW.E. eventually participated in more systematic counseling with a private social\\n\\nworker later in the school year, there was similarly no evidence showing how this\\n\\nprivate counseling was tailored to W.E.’s needs. Id. And even though W.E.\\n\\nachieved satisfactory grades throughout his tenth‐grade year, the SRO observed\\n\\n\\n 26\\n\\fthat “he continued to exhibit organizational and motivational/behavioral\\n\\ndifficulties at times in his class.” Id. at 110. The SRO found that Northwood\\n\\noffered W.E. accommodations that were available to virtually all other students,\\n\\nbut that the record lacked evidence showing how Northwood “provided specially\\n\\ndesigned instruction to address the student’s organizational difficulties.” Id.\\n\\nThe SRO ruled accordingly that the Parents failed to carry their burden of\\n\\ndemonstrating that Northwood was an appropriate placement.\\n\\n IV. District Court Proceedings\\n\\n The Parents sought judicial review of each of the SRO’s decisions. Their\\n\\nfirst federal court complaint, filed on April 30, 2014, challenged the SRO’s decision\\n\\nin Case One and sought reimbursement of home instruction and counseling costs\\n\\nfor W.E.’s eighth‐grade school year and tuition reimbursement for their unilateral\\n\\nplacement of W.E. at Northwood for the ninth‐grade school year. The second\\n\\ncomplaint, filed on June 13, 2014, challenged the SRO’s decision in Case Two and\\n\\nsought tuition reimbursement for W.E.’s placement at Northwood for the tenth‐\\n\\ngrade academic year. The two cases were consolidated in September 2015, and\\n\\nthe parties filed cross‐motions for summary judgment.\\n\\n A. Case One\\n\\n\\n 27\\n\\f With respect to W.E.’s eighth‐grade year, the district court found “no reason\\n\\nto disturb the SRO’s reasoned analysis,” concluding that the District did not deny\\n\\nW.E. a FAPE. W.A., 219 F. Supp. 3d at 458. While the district court\\n\\nacknowledged the Parents’ emphasis on W.E.’s clinically significant somatization\\n\\nscores from seventh grade and incomplete grades from his eighth‐grade second‐\\n\\nquarter, among other signals that the Parents alleged should have put the District\\n\\non notice of W.E.’s disability, the district court noted that “[t]he crux of the SRO’s\\n\\ndecision, however, was not so much that there was no basis to suspect that W.E.\\n\\nmay be disabled, but that there was no reason to suspect that special education was\\n\\nneeded to remedy that disability.” Id. at 457. Given that the SRO thoroughly\\n\\nconsidered W.E.’s progress in the general education curriculum with the\\n\\naccommodations provided in his Section 504 plan, as well as his performance on\\n\\nstandardized tests and psychological evaluations and feedback from his teachers,\\n\\nand given that the SRO weighed testimony from M.S. and from W.E.’s counselors,\\n\\nneurologist and a private psychologist, the court found the SRO’s conclusions\\n\\nsupported by the record. In this regard the district court found that “the SRO’s\\n\\ndecision stood on more solid conceptual footing than the IHO’s.” Id. at 459.\\n\\n\\n\\n\\n 28\\n\\f As for the issue of tuition reimbursement, the district court noted as an\\n\\ninitial matter that the District did not challenge the SRO’s conclusion in each case\\n\\nthat W.E. was denied a FAPE for his ninth‐ and tenth‐grade years and that it would\\n\\ntherefore skip directly to the reimbursement analysis. The court deferred to the\\n\\nSRO’s conclusion in Case One that Northwood was not an appropriate placement\\n\\nfor W.E.’s ninth‐grade year but held that the SRO’s conclusion in Case Two was\\n\\nneither well‐reasoned nor persuasive. While the records in both cases would\\n\\nappear relevant to the common question of whether Northwood was an\\n\\nappropriate placement, and while the same SRO presided over both\\n\\nadministrative appeals, the district court noted that it would attempt to analyze\\n\\nthe issue separately in the context of each of the two school years, “[g]iven the\\n\\nmaterial differences between the SRO’s two opinions in terms of quality and\\n\\npersuasiveness.” Id. at 463.\\n\\n The district court found the Parents’ challenges to the IHO and SRO\\n\\ndecisions unconvincing in Case One, noting that both the IHO and SRO took\\n\\nadequate stock of the available evidence and that any reputed flaws in the\\n\\nopinions were ultimately insufficient to strip them of the deference to which they\\n\\nwere otherwise entitled. The district court also independently assessed the\\n\\n\\n 29\\n\\fParents’ arguments regarding Northwood’s appropriateness as a placement for\\n\\nW.E.’s ninth‐grade year and concluded that the substantial improvement in W.E.’s\\n\\nattendance record could not alone satisfy the Parents’ burden. W.E.’s grades and\\n\\npositive response to the Northwood culture did not lead the district court to\\n\\nquestion the IHO’s and SRO’s reasoning. Nor did the district court think it was\\n\\nin a position to question the state officers’ determination that W.E.’s counseling\\n\\nwas not tailored to his needs. The district court did note that it found the SRO’s\\n\\nreasoning regarding Northwood’s smaller residential setting unpersuasive given\\n\\nthe evidence that W.E. was in need of a smaller school environment, but that this\\n\\nfactor was not sufficient to undermine the SRO’s opinion. The court reached a\\n\\nsimilar conclusion regarding the SRO’s finding that Northwood’s accommodation\\n\\nplan was not responsive to W.E.’s needs, and noted that the fact that other\\n\\nNorthwood students received the same accommodations did not speak to their\\n\\nefficacy or appropriateness for W.E. Despite the flaws that the district court\\n\\nidentified in the SRO’s opinion, the court agreed that the Parents did not satisfy\\n\\ntheir burden of showing that Northwood was an appropriate placement,\\n\\nespecially in light of the SRO’s analysis regarding Northwood’s failure to offer\\n\\n\\n\\n\\n 30\\n\\fmeaningful counseling or vehicles for addressing W.E.’s organizational and stress‐\\n\\nrelated issues.\\n\\n B. Case Two\\n\\n Although the same SRO presided over both appeals, the district court found\\n\\nits reasoning deficient in Case Two. It noted that “although the SRO provided a\\n\\nthorough recitation of the facts on the record, it dedicated barely two pages to\\n\\nactually analyzing whether Northwood was an appropriate placement.” Id. at\\n\\n470. The district court found that the SRO placed undue emphasis on W.E.’s need\\n\\nto cope with stress at the expense of W.E.’s other needs relating to his\\n\\norganizational skills and study habits and a supportive educational environment.\\n\\nWhile the court did not agree with all of the IHO’s reasoning, it found the IHO’s\\n\\nanalysis more compelling and accordingly considered its opinion in weighing the\\n\\nappropriateness of Northwood as a placement for W.E.’s tenth‐grade year.\\n\\n The district court addressed each of the Parents’ arguments, first finding\\n\\nthat the SRO’s conclusions regarding W.E.’s mixed academic progress were\\n\\nlargely consistent with the record but that this factor should nonetheless slightly\\n\\nfavor reimbursement. The district court observed no error in the SRO’s\\n\\nconclusion that W.E.’s participation in outdoor activities was not specially\\n\\n\\n 31\\n\\fdesigned for his needs but found that the SRO failed to accord appropriate weight\\n\\nto the significant improvement in W.E.’s attendance, noting that this improvement\\n\\n“was attributable to Northwood’s boarding feature.” Id. at 472. As for\\n\\nNorthwood’s accommodations, the district court was particularly concerned by\\n\\nthe SRO’s failure to consider W.E.’s use of an iPad, which testimony before the\\n\\nIHO had indicated “was a ‘godsend’ for W.E.” and helped with his organizational\\n\\ndifficulties. Id. at 473. The court noted that the fact that the iPad was generally\\n\\navailable to all Northwood students did not change its analysis, as “the Second\\n\\nCircuit has never indicated that a resource available to all students cannot be\\n\\nconsidered for purposes of determining appropriate placement if that resource\\n\\naddressed a specific need of the child.” Id. Although the district court noted\\n\\nthat the record contained little evidence of the effect of a second study hall\\n\\nprovided to W.E., it found the SRO’s failure to even mention the addition of a\\n\\nstudy hall concerning. As for counseling, the district court agreed with the SRO\\n\\nthat the informal counseling provided by Mr. Mellor was not meaningfully or\\n\\nappropriately tailored to W.E.’s needs. And the court found that Northwood’s\\n\\n24‐hour nursing support weighed only slightly in favor of reimbursement given\\n\\nthe minimal record evidence showing specific benefits that W.E. received.\\n\\n\\n 32\\n\\fFinally, the district court held that Northwood’s small class size—which satisfied\\n\\nW.E.’s IEP—favored reimbursement, finding again that the fact that such a feature\\n\\nis generally available does not undermine its appropriateness in addressing a\\n\\nparticular student’s needs.\\n\\n In short, the district court noted that while there was “no question the SRO\\n\\nconsidered all of the evidence on the record,” it found its discussion of\\n\\nNorthwood’s appropriateness truncated and inadequate, specifically in failing to\\n\\nconsider Northwood’s small class size, residential component, 24‐hour nursing,\\n\\nand the impact of its accommodations on W.E.’s specific needs. Id. at 476. The\\n\\ncourt again noted that it reached a differing conclusion regarding the SRO’s\\n\\nopinion in Case Two due to its more conclusory and unpersuasive nature, but also\\n\\nbecause the record for the tenth‐grade year was “more robust and offers more\\n\\ninsight into the benefits and accommodations Northwood offered to W.E. to meet\\n\\nhis specific needs.” Id. at 477. It also considered the equities de novo and\\n\\nconcluded that they, too, favored reimbursement, finding that the Parents\\n\\nparticipated in the CSE process with an open mind and afforded the District an\\n\\nopportunity to construct an appropriate IEP while simultaneously pursuing\\n\\nnecessary steps to secure W.E.’s prospective re‐enrollment at Northwood. The\\n\\n\\n 33\\n\\fcourt noted, for instance, that the Parents made another visit to the Southern\\n\\nWestchester BOCES program in July 2012, which undermined the District’s\\n\\nargument that W.E.’s enrollment at Northwood was inevitable.\\n\\n C. The District’s Counterclaim\\n\\n The district court also granted the District’s motion to amend to add a\\n\\ncounterclaim for costs awarded by the IHO in Case One. The parties cross‐\\n\\nmoved for summary judgment on the counterclaim and on July 18, 2017, the\\n\\ndistrict court awarded summary judgment to the District and vacated the award\\n\\nof compensatory education for the eighth‐grade school year based on its\\n\\naffirmance of the SRO’s ruling that W.E. was not denied a FAPE during eighth\\n\\ngrade. On September 13, 2017, the district court entered final judgment\\n\\nincorporating its opinions and orders dated November 23, 2016, and July 18, 2017.\\n\\nThe District appealed and the Parents cross‐appealed.\\n\\n DISCUSSION\\n\\n I. Deference Owed to State Hearing and Review Officers\\n\\n “We undergo a circumscribed de novo review of a district court’s grant of\\n\\nsummary judgment in the IDEA context because the responsibility for\\n\\ndetermining whether a challenged IEP will provide a child with a FAPE rests in\\n\\n\\n 34\\n\\fthe first instance with administrative hearing and review officers.” M.W. ex rel.\\n\\nS.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (internal quotation\\n\\nmarks and brackets omitted). “Summary judgment in the IDEA context,\\n\\ntherefore, is only a ‘pragmatic procedural mechanism for reviewing\\n\\nadministrative decisions.’” Id. (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free\\n\\nSch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam)). “Federal courts reviewing\\n\\nadministrative decisions [under the IDEA] must give ‘due weight’ to the\\n\\nadministrative proceedings, ‘mindful that the judiciary generally lacks the\\n\\nspecialized knowledge and experience necessary to resolve persistent and difficult\\n\\nquestions of educational policy.’” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377,\\n\\n381 (2d Cir. 2003) (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129\\n\\n(2d Cir. 1998)).\\n\\n Courts reviewing the state agency’s decision must base their decision on a\\n\\npreponderance of the evidence and may not substitute their own views on\\n\\neducational policy for those of the school authorities. A.C., 553 F.3d at 171. Our\\n\\nreview of the state’s educational decisions is therefore limited, demanding a level\\n\\nof scrutiny that is more critical than clear‐error but not nearly as complete as de\\n\\nnovo. See C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 77 (2d Cir. 2014).\\n\\n\\n 35\\n\\fAccordingly, what we refer to as “de novo review” in fact “only seeks to\\n\\nindependently verify that the administrative record supports the district court’s\\n\\ndetermination” regarding the sufficiency of the state’s educational decisions. Mr.\\n\\nP, 885 F.3d at 748 (quoting M.W., 725 F.3d at 138). We similarly afford special\\n\\ndeference to the district court where its “decision was based solely on the\\n\\nadministrative record.” A.C., 553 F.3d at 171.\\n\\n If the SRO and IHO decisions conflict, “the IHO’s decision ‘may be afforded\\n\\ndiminished weight.’” Id. (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d\\n\\n105, 113 n.2 (2d Cir. 2007)). In other words, we would “defer to the final decision\\n\\nof the state authorities, that is, the SRO’s decision.” M.W., 725 F.3d at 139\\n\\n(internal quotation marks omitted). Yet such deference applies only to the SRO’s\\n\\n“reasoned conclusions”—that is, “[r]eviewing courts must look to the factors that\\n\\n‘normally determine whether any particular judgment is persuasive’” and must\\n\\nultimately “defer to the SRO’s decision on matters requiring educational expertise\\n\\nunless [the court] concludes that the decision was inadequately reasoned, in which\\n\\ncase a better‐reasoned IHO opinion may be considered instead.” R.E., 694 F.3d\\n\\nat 189 (quoting M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 244, 246 (2d Cir. 2012)).\\n\\n“But the district court’s determination of the persuasiveness of an administrative\\n\\n\\n 36\\n\\ffinding must also be colored by an acute awareness of institutional competence\\n\\nand role. . . . [T]he purpose of the IDEA is to provide funding to states so\\n\\nthat they can provide a decent education for disabled students consistent with their\\n\\ntraditional role in educating their residents.” M.H., 685 F.3d at 244.\\n\\n II. Issues for Judicial Review\\n\\n A. Case One\\n\\n i. W.E.’s Eighth‐Grade Year\\n\\n The Parents challenge the district court’s deference to the SRO’s ruling that\\n\\nthe District met its Child Find obligation during W.E.’s eighth‐grade year. The\\n\\nCouncil of Parent Attorneys and Advocates, Inc. has also submitted a brief as\\n\\namicus curiae in which it asserts that the District violated its Child Find obligation\\n\\nwith respect to W.E. As noted previously, the IDEA and its implementing\\n\\nregulations require each State to develop policies and procedures for identifying\\n\\nand evaluating children with disabilities for special education services. Mr. P,\\n\\n885 F.3d at 749; 34 C.F.R. § 300.111. This obligation extends not only to children\\n\\nwith disabilities but also to those “who are suspected of being a child with a\\n\\ndisability . . . and in need of special education, even though they are advancing\\n\\nfrom grade to grade.” Id. § 300.111(c)(1). “However, ‘Child Find does not\\n\\n\\n 37\\n\\fdemand that schools conduct a formal evaluation of every struggling student.’”\\n\\nMr. P, 885 F.3d at 749 (quoting D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d.\\n\\nCir. 2012)).\\n\\n “To hold a school district liable for failing to identify a student who should\\n\\nbe evaluated for purposes of receiving special education, a claimant must show\\n\\nthat school officials overlooked clear signs of disability and were negligent in\\n\\nfailing to order testing, or that there was no rational justification for not deciding\\n\\nto evaluate.” Id. at 750 (internal quotation marks omitted). “A school district\\n\\nmust begin the evaluation process within a reasonable time after the district is on\\n\\nnotice of a likely disability.” Id. The SRO ruled that the District was not on\\n\\nnotice that W.E. might have a disability warranting special education services\\n\\nprior to the Parents’ referral of W.E. to the CSE in April 2011 and that it therefore\\n\\ndid not violate its Child Find obligation. Its thorough opinion found that the\\n\\nadministrative record supported the District’s view that W.E. appeared to be\\n\\n“making progress within the general curriculum despite his absences.” Sp.\\n\\nSupp. App. 71. It also noted that the District worked with the Parents to enable\\n\\nW.E. to catch up on schoolwork despite his extensive absences, citing, inter alia,\\n\\nlaudatory contemporaneous remarks made by M.S. about the District and its\\n\\n\\n 38\\n\\fteachers, as well as M.S.’s decision to cancel a January 2011 Section 504 review\\n\\nmeeting due to her communicating that “I think we have everything in place.”\\n\\nId. at 70.\\n\\n In arguing that the District was on notice of W.E.’s potential disability much\\n\\nearlier, the Parents point out that by mid‐January 2011, W.E. had already missed\\n\\nmore days of school than permitted by District policy for the entire year, received\\n\\nincompletes in three subjects, dropped his Enriched English class, and that his\\n\\ngrade in Algebra had fallen from a 93 to a 78. With the exception of W.E. having\\n\\ndropped Enriched English, the SRO’s opinion indicates awareness of these facts,\\n\\nhowever, and instead reaches a contrary conclusion that it was not until the third\\n\\nquarter of W.E.’s eighth grade year that his “absences began to compromise his\\n\\nability to achieve academically.” Id. at 71. And as the district court noted, the\\n\\nSRO also considered W.E.’s standardized test scores and feedback from teachers,\\n\\nthus construing the meaning of “academic success” more broadly than the IHO\\n\\nhad done—an analysis it was entitled to undertake. See W.A., 219 F. Supp. 3d at\\n\\n459.\\n\\n Because we must defer to the SRO’s “reasoned conclusions” on “matters\\n\\nrequiring educational expertise,” R.E., 694 F.3d at 189, we hold that the district\\n\\n\\n 39\\n\\fcourt properly deferred to the SRO on the question of whether the District violated\\n\\nits Child Find obligation for W.E.’s eighth‐grade school year. The question of\\n\\nwhether the District should have taken more aggressive steps in the face of\\n\\ncompeting signals arising from various interactions with the Parents and with the\\n\\nDistrict’s personnel regarding W.E.’s progress in the general education curriculum\\n\\nis an issue that calls for expertise; it is therefore an issue on which we must defer\\n\\nto the educational experts. In addition, the district court correctly noted that\\n\\n“[t]he crux of the SRO’s decision, however, was not so much that there was no\\n\\nbasis to suspect that W.E. may be disabled, but that there was no reason to suspect\\n\\nthat special education was needed to remedy that disability.” W.A., 219 F. Supp.\\n\\n3d at 457. This is a conclusion that a reviewing court should not disturb absent\\n\\nan objective flaw in the SRO’s reasoning. For similar reasons, we decline to\\n\\nconsider the argument presented by amicus that school avoidance is a\\n\\n“manifestation of disability” that demanded intervention when the State was in\\n\\nthe best position to assess whether and to what extent W.E.’s absences warranted\\n\\nspecial education services.\\n\\n In light of our holding that W.E. was not denied a FAPE for his eighth‐grade\\n\\nyear, we decline, as the district court did, to reach the Parents’ request for\\n\\n\\n 40\\n\\fcompensatory education for that year. For the same reason, we affirm the district\\n\\ncourt’s July 18, 2017 decision vacating the SRO’s award of compensatory\\n\\ncounseling services for eighth grade. While the Parents assert that the award was\\n\\nissued in connection with the denial of a FAPE for ninth grade because it was\\n\\nintended to reimburse the Parents for therapy sessions that Dr. Williams relied\\n\\nupon to develop W.E.’s ninth‐grade IEP, the IHO opinion in Case One makes clear\\n\\nthat the award of counseling reimbursement was issued in connection with the\\n\\ndenial of a FAPE for eighth grade. We are thus not inclined to override the State’s\\n\\nexplicit attribution. Nor do we find compelling the Parents’ argument that the\\n\\nDistrict’s alleged failure to appeal the IHO’s limited award of reimbursement for\\n\\nDr. Williams’s psychiatric services rendered the district court without jurisdiction\\n\\nto grant the District’s motion to amend to seek recovery of these costs. As the\\n\\ndistrict court found, it “defies common sense to suggest” that the District did not\\n\\nadministratively appeal the reimbursement award when there is no question that\\n\\nthe District cross‐appealed the portion of the IHO’s decision that found that the\\n\\nDistrict had violated its Child Find obligation and denied W.E. a FAPE for his\\n\\neighth‐grade year. See W.A., 2017 WL 3066888, at *9.\\n\\n\\n\\n\\n 41\\n\\f In sum, we affirm in all respects the district court’s judgment and\\n\\naccompanying opinion and orders regarding the eighth‐grade school year.\\n\\n ii. Whether Northwood Was an Appropriate Placement for\\n W.E.’s Ninth‐Grade Year\\n\\n Courts apply the three‐step “Burlington/Carter” test to determine whether a\\n\\nparent is entitled to retroactive tuition reimbursement. C.F., 746 F.3d at 76. We\\n\\nfirst assess whether the District provided a FAPE; if it did not, we move on to the\\n\\nsecond and third steps, under which the parents bear the burden of showing that\\n\\ntheir unilateral private school placement was appropriate for the child’s needs and\\n\\nthat the equities work in their favor. Id.; see also A.C., 553 F.3d at 171–72. The\\n\\nDistrict does not contest that it failed to provide W.E. a FAPE for W.E.’s ninth‐ or\\n\\ntenth‐grade school years, and we therefore move directly to the second step of the\\n\\nanalysis.\\n\\n At step two, the private school placement “must be reasonably calculated to\\n\\nenable the child to receive educational benefits.” M.H., 685 F.3d at 252 (internal\\n\\nquotation marks omitted). “Grades, test scores, and regular advancement may\\n\\nconstitute evidence that a child is receiving educational benefit, but courts\\n\\nassessing the propriety of a unilateral placement consider the totality of the\\n\\ncircumstances in determining whether that placement reasonably serves a child’s\\n\\n 42\\n\\findividual needs.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir.\\n\\n2006). Even where the private placement yields evidence of the child’s success,\\n\\nhowever:\\n\\n courts should not disturb a state’s denial of IDEA reimbursement where the\\n chief benefits of the chosen school are the kind of advantages that might be\\n preferred by parents of any child, disabled or not. Rather, the unilateral\\n private placement is only appropriate if it provides education instruction\\n [specially] designed to meet the unique needs of a handicapped child.\\n\\nM.H., 685 F.3d at 252 (quoting Gagliardo, 489 F.3d at 115 (internal quotation marks\\n\\nand alterations omitted).\\n\\n Our conclusion that the SRO’s opinion in Case One was sufficiently\\n\\nreasoned and adequately supported by the administrative record supports the\\n\\ndeference that the district court conferred on the SRO on issues demanding its\\n\\neducational expertise as concerns W.E.’s ninth‐grade year. We therefore affirm\\n\\nthe district court’s deference to the SRO’s ruling that Northwood School was not\\n\\nan appropriate placement entitling the Parents to tuition reimbursement for ninth\\n\\ngrade. While the Parents argue that the State failed to consider fully\\n\\nNorthwood’s responsiveness to W.E.’s unique needs and the significant\\n\\nimprovements he experienced while enrolled at the private school—including his\\n\\nmomentous increase in attendance—the SRO’s opinion reflects that it considered\\n\\n\\n 43\\n\\fthe relevant evidence of W.E.’s progress. For instance, the SRO noted that “the\\n\\nhearing record supports a finding that the student’s social/emotional and\\n\\nacademic functioning improved since the end of the 2010‐11 school year, . . . and\\n\\nthat the student achieved some progress academically during the 2011‐12 school\\n\\nyear” while simultaneously citing reports from W.E.’s teachers describing his\\n\\ninconsistent level of academic effort, timeliness, and preparation. Sp. Supp. App.\\n\\n84. The SRO also properly cited this Court’s decision in Gagliardo, 489 F.3d at 115,\\n\\nfor the proposition that a student’s progress in a unilateral placement, while\\n\\nrelevant to the court’s inquiry, cannot alone demonstrate the appropriateness of\\n\\nthat placement.\\n\\n Indeed, the crux of the SRO’s decision was not that W.E. failed to progress\\n\\nat Northwood, but, rather, that:\\n\\n the hearing record lacks evidence demonstrating that [Northwood]\\n provided instruction that was designed to address the student’s tendencies\\n to develop physical symptoms and exhibit school avoidance when under\\n stress, or his need to develop coping skills to manage stress related to\\n academics and social interactions, and to improve his organizational/study\\n skills related to academics, and, that the instruction that the student received\\n during the 2011‐12 school year was, in fact, available to all students enrolled\\n at [Northwood].\\n\\nId. at 84–85. The SRO thus concluded that placing W.E. in Northwood’s\\n\\n“residential setting—which merely eliminated his exposure to the public school\\n\\n 44\\n\\fenvironment and to activities that he perceived as stressful—is not sufficient in\\n\\nthis case to meet the parents’ burden to establish that [Northwood’s] program\\n\\nprovided the student with educational instruction specially designed to meet his\\n\\nunique needs.” Id. at 85. Instead, the SRO found that Northwood’s educational\\n\\nand environmental benefits were those “that might be preferred by parents of any\\n\\nchild, disabled or not,” and therefore did not satisfy the IDEA’s definition of\\n\\nspecial education. Id. (quoting Gagliardo, 489 F.3d at 115).\\n\\n Because the question of whether a private school placement provided\\n\\nspecial education services is precisely a question on which we defer to educational\\n\\nexperts, see, e.g., Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 451–52 (2d Cir. 2015), and\\n\\nbecause the SRO’s considered opinion reflects that it viewed W.E.’s migraines as\\n\\nstemming from underlying emotional and psychological issues that Northwood\\n\\nwas not equipped to address, we hold that the district court properly deferred to\\n\\nthe SRO notwithstanding its disagreement with certain aspects of the SRO’s\\n\\nopinion. We therefore do not reach the issue of whether the equities favored\\n\\nreimbursement.\\n\\n B. Case Two\\n\\n i. Whether Northwood Was an Appropriate Placement for W.E.’s\\n Tenth‐Grade Year\\n\\n 45\\n\\f As already noted, while the same SRO presided over the administrative\\n\\nappeals in both Case One and Case Two, the district court found its opinion in the\\n\\nlatter case conclusory and unpersuasive and instead took the IHO’s opinion,\\n\\nwhich it found more convincing, into account. “Where the IHO and SRO\\n\\ndisagree, reviewing courts are not entitled to adopt the conclusions of either state\\n\\nreviewer according to their own policy preferences or views of the evidence; courts\\n\\nmust defer to the reasoned conclusions of the SRO as the final state administrative\\n\\ndetermination.” M.H., 685 F.3d at 246. Because we are persuaded that the\\n\\ndistrict court improperly substituted its judgment on matters of educational policy\\n\\nfor that of the SRO, and in light of the district court’s own acknowledgment that\\n\\n“[t]here is no question the SRO considered all of the evidence on the record,” W.A.,\\n\\n219 F. Supp. 3d at 476, we hold that the district court improperly failed to accord\\n\\ndeference to the SRO’s ruling that Northwood School was not an appropriate\\n\\nplacement for W.E.’s tenth‐grade year.\\n\\n First, we perceive no qualitative difference in the SRO’s opinions in Case\\n\\nOne and Two that would entitle the former but not the latter to deference. The\\n\\ndistrict court’s characterization of the SRO’s opinion in Case Two as “dedicat[ing]\\n\\nbarely two pages to actually analyzing whether Northwood was an appropriate\\n\\n 46\\n\\fplacement,” Id. at 470, is unfounded. It ignores the SRO’s comprehensive review\\n\\nof the relevant record evidence documenting, inter alia, W.E.’s progress, reports\\n\\nfrom W.E.’s Northwood teachers and clinicians, and the various accommodations\\n\\nand amenities W.E. received at Northwood—all of which informed the SRO’s\\n\\nultimate conclusion as to whether Northwood provided W.E. special education\\n\\nwithin the meaning of the IDEA.\\n\\n The district court additionally criticized the SRO’s opinion as omitting\\n\\ncertain considerations, but the record reveals that, by and large, the SRO did\\n\\nconsider the same factors that the district court found dispositive and instead\\n\\ndiffered as to their import. For example, the district court took issue with the\\n\\nthoroughness of the SRO’s discussion of W.E.’s tenth‐grade accommodations,\\n\\nspecifically focusing on the way in which an iPad Northwood provided benefitted\\n\\nW.E.’s academic progress. According to the district court, “the SRO made no\\n\\nreference to the device in its analysis of whether Northwood was an appropriate\\n\\nplacement.” Id. at 473. In fact, however, the SRO opinion accounts for testimony\\n\\nconcerning the iPad in several places, specifically noting its use “as an\\n\\ninstructional or learning aid.” Supp. App. 104. While the district court\\n\\nemphasized testimony from W.E.’s western civilization teacher indicating “that\\n\\n\\n 47\\n\\fthe iPad was a ‘godsend’ for W.E.”, W.A., 219 F. Supp. 3d at 473, the SRO\\n\\nhighlighted, inter alia, other testimony from W.E.’s English teacher and counselor,\\n\\nindicating that he thought the iPad was a good match but that he could not provide\\n\\nquantifiable evidence of the way W.E.’s accommodation plan had benefitted him.\\n\\nThe SRO also noted comments from W.E.’s western civilization teacher stating that\\n\\nW.E. used the iPad for notetaking and homework and that it lessened his need for\\n\\norganizational help.\\n\\n The district court also faulted the SRO for failing to discuss the vast\\n\\nimprovement in W.E.’s attendance while at Northwood. But the SRO observed\\n\\nthat the decreased frequency of W.E.’s headaches yielded “significantly improved\\n\\nschool attendance,” Supp. App. 100, later stating that “it is without question that\\n\\nduring the 2012‐13 school year, the student exhibited progress in the sense that\\n\\nexcept when experiencing a migraine, he attended classes consistently, achieved\\n\\ngrades in the ‘A‐‘ to ‘C+’ range, and demonstrated increased maturity and ability\\n\\nto socially interact with peers,” Id. at 109. What is more, while W.E.’s improved\\n\\nattendance at Northwood undoubtedly serves as compelling indicia of progress,\\n\\nit was from eighth to ninth grade that W.E. went from missing over 100 days of\\n\\nschool to only nine the following year. Yet the district court did not find this\\n\\n\\n 48\\n\\fenormous improvement vital enough to overturn the SRO’s assessment in Case\\n\\nOne. Between ninth and tenth grade, by contrast, W.E.’s absences essentially\\n\\nremained the same, and so the district court’s emphasis on W.E.’s attendance in\\n\\nthe latter school year cannot bear the weight assigned to it.\\n\\n Outside of W.E.’s attendance and his use of an iPad, the district court\\n\\nlamented the SRO’s failure to discuss a second study hall Northwood offered\\n\\nduring the tenth‐grade school year, yet simultaneously noted that the record\\n\\ncontained little evidence of the study hall’s benefit. It also critiqued the SRO’s\\n\\nlack of attention to Northwood’s small class size and boarding‐school feature,\\n\\nwhich, according to the district court, “provided W.E. benefits specific to his\\n\\nunique needs.” W.A., 219 F. Supp. 3d at 476. The SRO’s opinion, however, does\\n\\nreflect that it considered Northwood’s small student‐to‐teacher ratio and the way\\n\\nin which it enabled “discussion‐based learning.” Supp. App. 107. In so doing it\\n\\ncited Frank G., 459 F.3d at 365, where this Court recognized that small class size\\n\\nfalls within the IDEA’s definition of special education but declined to decide\\n\\nwhether small class size alone could render a private placement appropriate.\\n\\nThis Court, moreover, recently recognized that small class size “is the kind of\\n\\neducational and environmental advantage that might be preferred by parents of\\n\\n\\n 49\\n\\fany child, disabled or not.” Doe, 790 F.3d at 452 (internal quotation marks and\\n\\nalterations omitted); see also Gagliardo, 489 F.3d at 115. The district court\\n\\notherwise agreed with the SRO’s characterization of W.E.’s academic performance,\\n\\nas well as the SRO’s conclusions that Northwood did not provide meaningful\\n\\ncounseling and that its outdoor programming did not render it an appropriate\\n\\nplacement.6\\n\\n In short, the district court’s decision not to defer to the SRO’s opinion on the\\n\\nbasis of the SRO’s putatively perfunctory analysis is not supported by the record.\\n\\nCf. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 838 (2d Cir. 2014) (declining\\n\\nto afford deference to SRO where its opinion “was not sufficiently reasoned or\\n\\ncarefully considered because the SRO did not consider or comment on any of the\\n\\nspecific services provided to [the student at the private school] or the progress that\\n\\nthe record shows he made at the school”).\\n\\n Second, rather than “credit[] the conclusions that were most consistent with\\n\\nits own subjective analysis,” the reviewing court should only reject the SRO’s\\n\\n\\n\\n6 The district court was essentially ambivalent about the impact of nursing services, though its\\nobservation that “[i]t strains credulity to suggest that an around‐the‐clock nurse staff, one of\\nwhom resided on the same floor as W.E., . . . was not an educational feature that worked to W.E.’s\\nspecific benefit,” W.A., 219 F. Supp.3d at 475, would appear to apply with equal force to W.E.’s\\nninth grade year, where the district court reached a contrary conclusion.\\n\\n 50\\n\\fconclusions if it finds that they are not supported by a preponderance of the\\n\\nevidence. M.H., 685 F.3d at 248. Here, the district court did not address whether\\n\\nthe SRO’s conclusions were supported by a preponderance and instead appeared\\n\\nto conduct a true de novo analysis of whether each factor favored reimbursement,\\n\\nultimately holding that the SRO “failed to give adequate weight to many of\\n\\nNorthwood’s most beneficial features and erroneously discounted the value of\\n\\nsome of those features merely because they were generally available to all\\n\\nstudents.” W.A., 219 F. Supp. 3d at 470. We agree with the district court that a\\n\\nresource that benefits an entire student population can constitute special education\\n\\nin certain circumstances. Under our precedents, however, a reviewing court is\\n\\nnot entitled to overrule the State on a question of educational policy—such as\\n\\nwhether a generally available resource is specially tailored to a particular disabled\\n\\nstudent’s needs—based merely on its own disagreement with the State’s\\n\\nevaluation of that resource. See M.H., 685 F.3d at 241; see also Cerra v. Pawling Cent.\\n\\nSch. Dist., 427 F.3d 186, 196 (2d Cir. 2005) (For a reviewing court to render its own\\n\\ndetermination on a matter of educational policy, it must point to “objective\\n\\nevidence in the record suggesting that the SRO has reached an erroneous\\n\\nconclusion.”). In ruling that Northwood School was an appropriate placement\\n\\n\\n 51\\n\\ffor W.E.’s tenth‐grade year, the district court appeared to do just that—conducting\\n\\nits own totality of the circumstances analysis in which it substituted its subjective\\n\\nassessment for that of the State.\\n\\n As in Case One, the SRO’s ruling was grounded in its conclusion that the\\n\\nrecord lacked evidence showing that Northwood provided W.E. with “specially\\n\\ndesigned instruction to meet his ongoing need to develop insight and\\n\\nunderstanding into what triggered his stress and anxiety, and positive coping\\n\\nskills to address stress and decrease anxiety; difficulties that the hearing record\\n\\nshowed not only contributed to the student’s tendency to develop migraine\\n\\nheadaches, but also to exhibit organizational deficits and avoidance behaviors.”\\n\\nSupp. App. 109. While the Parents highlight the many benefits Northwood\\n\\nprovided W.E., endorsements of the private school by W.E.’s medical\\n\\nprofessionals, and various emblems of W.E.’s academic, social, and emotional\\n\\ngrowth during his tenure, many of the features that appear to have abated W.E.’s\\n\\nstress and migraines are those that any parent would desire in an educational\\n\\nsetting—namely, smaller classes, closer attention by faculty and staff, bucolic\\n\\nsurroundings in a residential environment, and use of an iPad for organization\\n\\nand note‐taking. Thus, even though the record may support the view that\\n\\n\\n 52\\n\\fNorthwood was an excellent placement for W.E., it also supports the SRO’s\\n\\nconclusion that Northwood was not methodologically or therapeutically\\n\\nstructured in the way required for reimbursement under the IDEA. See Gagliardo,\\n\\n489 F.3d at 115. This educational policy judgment likewise reinforces the\\n\\ndeference that we believe we must give the SRO’s opinion.\\n\\n CONCLUSION\\n\\n We affirm the district court’s November 23, 2016 opinion and order to the\\n\\nextent it deferred to the SRO’s conclusions regarding the District’s Child Find\\n\\nobligation and Northwood’s failure to provide W.E. special education during the\\n\\nninth‐grade academic year. Because the district court failed to confer appropriate\\n\\ndeference to the SRO’s analysis regarding Northwood’s lack of specially designed\\n\\ninstruction tailored to W.E.’s unique needs during the tenth‐grade school year, we\\n\\nreverse the district court’s November 23, 2016 opinion and order to the extent it\\n\\nheld that Northwood School was an appropriate placement for that school year\\n\\nand accordingly vacate its award of tuition reimbursement. We also affirm the\\n\\ndistrict court’s July 18, 2017 opinion and order granting the District’s motion for\\n\\nsummary judgment and denying the Parents’ cross‐motion for summary\\n\\n\\n\\n\\n 53\\n\\fjudgment and vacating the award of compensatory education for the eighth‐grade\\n\\nschool year.\\n\\n Because the District is the prevailing party both on appeal and on the cross‐\\n\\nappeal, costs under Fed. R. App. P. 39(a) shall be taxed against Appellees‐Cross‐\\n\\nAppellants.\\n\\n\\n\\n\\n 54\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4406928/\", \"author_raw\": \"HALL, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KEARSE"},"judge2":{"kind":"string","value":"JACOBS"},"judge3":{"kind":"string","value":"HALL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4629675/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: W.A., M.S., Individually and on Behalf of W.E., Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants, v. HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, Defendant-Counter-Claimant-Appellant-Cross-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-06-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-3248 (L)\nW.A., M.S. v. Hendrick Hudson Central School District\n\n In the\n United States Court of Appeals\n for the\n Second Circuit\n August Term, 2018\n\n Argued: February 21, 2019\n Decided: June 14, 2019\n\n Docket Nos. 17‐3248, 17‐3313\n\n\n\n W.A., M.S., INDIVIDUALLY AND ON BEHALF OF W.E.,\n\n Plaintiffs‐Counter‐Defendants‐Appellees‐Cross‐Appellants,\n\n v.\n\n HENDRICK HUDSON CENTRAL SCHOOL DISTRICT,\n\n Defendant‐Counter‐Claimant‐Appellant‐Cross‐Appellee. †\n\n\n Appeal from the United States District Court\n for the Southern District of New York (Karas, J.)\n No. 14‐3067\n\n\n\nBefore:\n KEARSE, JACOBS, HALL, Circuit Judges.\n\n\n† The Clerk of Court is requested to amend the caption to conform to the above.\n\fAppeal and cross‐appeal from the September 13, 2017 judgment of the United\nStates District Court for the Southern District of New York (Karas, J.) incorporating\nits November 23, 2016 opinion and order granting in part and denying in part the\nparties’ cross‐motions for summary judgment and its July 18, 2017 opinion and\norder granting Defendant’s motion for summary judgment and denying Plaintiffs’\ncross‐motion. We hold that the district court properly deferred to the decision of\nthe New York State Review Officer (“SRO”), which concluded that student W.E.\nwas not denied a free and appropriate public education for the eighth‐grade school\nyear and that Northwood School (“Northwood”) was not an appropriate\nunilateral private school placement for the ninth‐grade school year, and thus\naffirm the district court’s November 23, 2016 opinion and order to the extent it\ngranted summary judgment to Defendant. Because the district court failed to\naccord appropriate deference to the SRO’s conclusion that Northwood did not\nprovide W.E. specially designed instruction so as to constitute an appropriate\nprivate school placement for the tenth‐grade school year, we reverse the portion\nof the district court’s November 23, 2016 opinion and order granting summary\njudgment to Plaintiffs and vacate the award of tuition reimbursement to Plaintiffs\nfor that school year. We also affirm the district court’s July 18, 2017 opinion and\norder granting Defendant’s motion for summary judgment and vacating the\naward of compensatory education for the eighth‐grade school year.\n\n AFFIRMED IN PART, REVERSED AND VACATED IN PART.\n\n\n\n DANIEL PETIGROW, (David H. Strong, on the\n brief), Thomas, Drohan, Waxman, Petigrow\n & Mayle, LLP, Hopewell Junction, NY, for\n Defendant‐Counter‐Claimant‐Appellant‐Cross‐\n Appellee.\n\n WILLIAM A. WALSH, New York, NY (Erica\n M. Fitzgerald, Littman Krooks LLP, White\n Plains, NY, on the brief), for Plaintiffs‐Counter‐\n Defendants‐Appellees‐Cross‐Appellants.\n\n\n\n 2\n\f Catherine Merino Reisman, Ellen Saideman,\n Selene Almazan‐Altobelli, Towson, MD, for\n Amicus Curiae Council of Parent Attorneys and\n Advocates, Inc.\n\n\n\nHALL, Circuit Judge:\n\n In the United States District Court for the Southern District of New York\n\n(Karas, J.), W.A. and M.S. (“the Parents”), individually and on behalf of their son,\n\nW.E., commenced two actions against the Hendrick Hudson Central School\n\nDistrict (“the District”) under the Individuals with Disabilities Education Act\n\n(“IDEA”), 20 U.S.C. § 1400 et seq. W.E. attended public school in the District and\n\nbegan suffering from conventional and abdominal migraines during middle\n\nschool, which caused him to miss over 100 days of eighth grade. The District\n\neventually classified W.E. as suffering from a disability under the IDEA’s “other\n\nhealth impairment” designation, but the Parents were not satisfied with the\n\nindividualized education program the District prepared for W.E.’s upcoming\n\nninth‐grade school year. The Parents removed W.E. from the District and\n\nenrolled him at Northwood School (“Northwood”), a private school in the\n\nAdirondacks, for his ninth‐ and tenth‐grade school years. While at Northwood\n\n\n\n\n 3\n\fW.E.’s absences from school diminished significantly, and he experienced notable\n\nimprovement in his social and academic engagement.\n\n Following administrative hearings before a New York State Impartial\n\nHearing Officer (“IHO”) and cross‐appeals before a State Review Officer (“SRO”),\n\nthe Parents brought these two federal court complaints pursuant to Section 1415\n\nof the IDEA, 20 U.S.C. § 1415(i)(2)(A). In Case One, the Parents alleged that the\n\nDistrict violated W.E.’s right to a free and appropriate public education (“FAPE”)\n\nfor his eighth‐ and ninth‐grade school years (2010‐11 and 2011‐12) and challenged\n\nthe SRO’s ruling of January 31, 2014, which held that Northwood was not an\n\nappropriate placement for ninth grade. In Case Two, the Parents challenged the\n\nMarch 18, 2014 decision of the SRO and asserted that the District violated W.E.’s\n\nright to a FAPE for his tenth‐grade school year (2012‐13); they again sought tuition\n\nreimbursement for their unilateral placement of W.E. at Northwood for tenth\n\ngrade. The two actions were consolidated by the district court.\n\n On November 26, 2016, the district court affirmed the SRO’s ruling in Case\n\nOne in all respects but declined to defer to the SRO in Case Two, holding instead\n\nthat Northwood was an appropriate placement during tenth grade and ordering\n\nthat the District reimburse the Parents for W.E.’s tuition at Northwood for that\n\n\n 4\n\fyear. See W.A. v. Hendrick Hudson Cent. Sch. Dist., 219 F. Supp. 3d 421 (S.D.N.Y.\n\n2016). It also granted the District’s motion to amend to add a counterclaim\n\nregarding costs awarded by the IHO in Case One. Id. at 484. On July 18, 2017,\n\nthe district court granted summary judgment to the District on the counterclaim,\n\nvacating the award of compensatory education in the form of counseling\n\nreimbursement for the eighth‐grade year based on its affirmance of the SRO’s\n\nruling that W.E. was not denied a FAPE for that academic year. 1 See W.A. v.\n\nHendrick Hudson Cent. Sch. Dist., No. 14‐CV‐3067 (KMK), 2017 WL 3066888\n\n(S.D.N.Y. July 18, 2017).\n\n The District appeals the portion of the district court’s November 23, 2016\n\ndecision and order awarding summary judgment to the Parents and ordering\n\nreimbursement of W.E.’s tuition for his private education at Northwood during\n\nW.E.’s tenth‐grade year. The Parents cross‐appeal the portion of the district\n\ncourt’s November 23, 2016 opinion and order awarding summary judgment to the\n\nDistrict and holding that the District did not violate its “Child Find” obligation\n\n\n\n\n1 Under the IDEA, “compensatory education is an available option . . . to make up for denial of a\nfree and appropriate public education.” P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed., 546 F.3d\n111, 123 (2d Cir. 2008).\n\n\n 5\n\funder the IDEA2 and thus did not deny W.E. a FAPE for the eighth‐grade year in\n\naccord with its statutory obligations, and further holding that Northwood was not\n\nan appropriate placement for W.E.’s ninth‐grade school year so as to entitle the\n\nParents to tuition reimbursement for W.E.’s private education during ninth grade.\n\nThe Parents also cross‐appeal the district court’s July 18, 2017 opinion and order\n\nawarding summary judgment to the District and vacating the award of\n\ncompensatory education for the eighth‐grade school year.\n\n Because we hold that the district court properly deferred to the SRO’s\n\nconclusions regarding the timeframe during which the District’s Child Find\n\nobligation was triggered and its ruling that Northwood failed to provide\n\nmeaningful counseling or specially designed instruction for W.E.’s ninth‐grade\n\nacademic year, we affirm the district court’s November 23, 2016 opinion and order\n\nas to Case One. However, because the district court did not defer to the similarly\n\nwell‐reasoned opinion of the SRO which held that Northwood failed to provide\n\nspecially designed instruction for the tenth‐grade academic year in spite of W.E.’s\n\nprogress in the private school placement, we reverse the district court’s November\n\n\n\n\n2 The IDEA’s “Child Find” obligation is explained in the context of our discussion of the statutory\nframework, see infra, slip op. pp. 7–8.\n\n 6\n\f23, 2016 opinion and order with respect to Case Two and vacate the award of\n\ntuition reimbursement for the tenth‐grade academic year. We affirm the district\n\ncourt’s July 18, 2017 opinion and order granting the District’s motion for summary\n\njudgment and vacating the award of compensatory education for the eighth‐grade\n\nschool year.\n\n BACKGROUND\n\n I. Statutory Framework\n\n This case arises under the IDEA, 20 U.S.C. § 1400 et seq. The IDEA was\n\ndesigned, inter alia, to protect the rights of children with disabilities as well as the\n\nrights of their parents and “to ensure that all children with disabilities have\n\navailable to them a free appropriate public education [“FAPE”] that emphasizes\n\nspecial education and related services designed to meet their unique needs and\n\nprepare them for further education, employment, and independent living.” Id. §\n\n1400(d)(1)(A). The IDEA enforces a “Child Find” obligation which “requires\n\neach State to have policies and procedures to ensure that all children with\n\ndisabilities are identified and evaluated for special education and related\n\nservices.” Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 749 (2d Cir.), cert. denied,\n\n139 S. Ct. 322 (2018). A school district must conduct an evaluation of a child\n\n\n 7\n\fsuspected of suffering a disability “within a reasonable time” after it receives\n\n“notice of a likely disability.” Id. at 750.\n\n The IDEA also requires that school districts create an individualized\n\neducation program (“IEP”) for each qualifying child. See R.E. v. N.Y.C. Dep’t of\n\nEduc., 694 F.3d 167, 175 (2d Cir. 2012) (citing 20 U.S.C. § 1414(d)). “The IEP is the\n\ncenterpiece of the IDEA’s education delivery system for disabled children” and\n\nserves as the means by which the State delivers a disabled child’s FAPE. Mr. P,\n\n885 F.3d at 741 (internal quotation marks and brackets omitted). It constitutes “a\n\nwritten statement that sets out the child’s present educational performance,\n\nestablishes annual and short‐term objectives for improvements in that\n\nperformance, and describes the specially designed instruction and services that\n\nwill enable the child to meet those objectives.” R.E., 694 F.3d at 175 (quoting D.D.\n\nex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2d Cir. 2006)). In New\n\nYork, local Committees on Special Education (“CSEs”) are responsible for\n\ndeveloping IEPs and are tasked with identifying an educational program tailored\n\nto the student’s particular needs and achievement levels. See id.\n\n Parents who believe a child has been denied a FAPE may enroll the child in\n\na private school at their own financial risk and seek retroactive reimbursement\n\n\n 8\n\ffrom the school district for the cost of the private school. A.C. ex rel. M.C. v. Bd.\n\nof Educ. of The Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009). In New\n\nYork, such claims are first adjudicated before an IHO and may then be appealed\n\nto the SRO. See R.E., 694 F.3d at 175 (citing N.Y. Educ. Law §§ 4404(1)‐(2)). The\n\nIDEA provides for judicial review of the SRO’s decision by a federal district court.\n\nId. (citing 20 U.S.C. § 1415(i)(2)(A)).\n\n II. Factual Background\n\n W.E. attended public school in the District through the eighth grade. He\n\nperformed well and was engaged in several extracurricular programs until the\n\nsixth grade, when he developed severe internal pain that led to an emergency\n\nappendectomy and caused him to miss at least 26 days of school. W.E. was\n\ndiagnosed with abdominal migraines which persisted throughout seventh grade\n\nand which were increasingly compounded by conventional migraines, causing\n\nhim to miss at least as many school days as he had the prior year. His headaches\n\ncontinued to worsen through the spring of seventh grade when W.E.’s mother,\n\n\n\n\n 9\n\fM.S., referred W.E. to the District’s Section 504 Committee 3 and requested\n\ntutoring, which the District approved.\n\n As part of the Section 504 process, Dr. Richard Brodsky, the school\n\npsychologist, performed a psycho‐educational evaluation of W.E. That\n\nevaluation yielded above‐average scores on a cognitive test measuring W.E.’s\n\n“General Intellectual Ability.” W.A., 219 F. Supp. 3d at 430. Except for math\n\nfluency, in which W.E. fell into the “low average” range, the evaluation also\n\nyielded average to advanced scores on a number of subtests targeted to measure\n\nacademic achievement. Id. Dr. Brodsky also administered the Behavior\n\nAssessment System for Children‐Second Edition (“BASC‐2”) to W.E. and to two\n\nof his teachers on W.E.’s behalf. That assessment generated “at‐risk” scores in\n\nthe areas designated “Relations to Parents” and “Attitudes Towards School.” Id.\n\nOne of W.E.’s teachers also produced a “clinically significant score” reflecting “a\n\nhigh level of maladjustment” as a result of W.E.’s somatization. Id. In June\n\n2010, the District’s Section 504 Committee met and found W.E. eligible for an\n\naccommodation based upon his migraine disability. The accommodation\n\n\n\n3 As the district court explained, “[a] Section 504 committee is so named as a reference to § 504 of\nthe Rehabilitation Act,” 29 U.S.C. § 794. W.A., 219 F. Supp. 3d at 429 n.1.\n\n\n 10\n\fconsisted of extra time to complete assignments, nursing services as needed, and\n\naccess to class notes and home tutoring.\n\n W.E.’s eighth‐grade year was increasingly fraught, with his migraines\n\ncausing him to miss a total of more than 100 school days. Although he did well\n\nin some classes, he struggled in others, missed some state exams, and became more\n\nsocially isolated. W.E. received some of the tutoring to which he was entitled\n\nunder his Section 504 plan, but the Parents were not satisfied with the assigned\n\ntutor, and efforts to find a replacement interrupted the tutoring before it was\n\nrecommenced. In December 2010, M.S. notified the District that she observed her\n\nson to be in “crisis” and requested certain interventions; she also contacted Dr.\n\nBrodsky, who recommended private relaxation counseling for W.E. Id. at 433.\n\nPer M.S.’s request, the District scheduled a meeting for January 5, 2011, to review\n\nW.E.’s Section 504 plan, but M.S. later emailed Caroline Almeida, the District’s\n\nAssistant Director of Pupil Personnel, to suggest canceling the meeting in light of\n\nW.E.’s progress over the winter break and M.S.’s understanding that he “had all\n\nthe program modifications in place.” Id. at 434 (brackets omitted).\n\n In mid‐January 2011, the Parents began the process of looking into a private\n\nschool for W.E.’s upcoming ninth‐grade year. M.S. and W.E. visited Northwood,\n\n\n 11\n\fa boarding school in the Adirondacks, in late February 2011. The school is a self‐\n\ndescribed small college preparatory school that strives to incorporate the values of\n\nintegrity, compassion, responsibility, courage, and respect into its pedagogy and\n\noperations. During this initial visit W.E. grabbed M.S.’s coat and asked, “Can I\n\ngo here?” Id. at 438. W.E. was admitted, and the Parents paid a deposit and\n\nsigned an enrollment contract in March 2011. Later that spring M.S. and W.E.\n\nvisited Northwood again with W.A. and confirmed W.E.’s intent to attend in the\n\nfall.\n\n Meanwhile, throughout the spring of W.E.’s eighth‐grade year, discussions\n\nwith the District continued. By April 2011 the Parents had referred W.E. to the\n\nlocal CSE to determine his eligibility for special education services under the\n\nIDEA’s “other health impairment” (“OHI”) classification; they also requested an\n\nemergency Section 504 meeting, which Ms. Almeida promptly scheduled. At\n\nthat meeting of April 15, 2011, the Section 504 Committee recommended\n\ncounseling. Dr. Brodsky suggested it should take place outdoors. The Section\n\n504 Committee also recommended that a psychiatric evaluation be conducted in\n\npreparation for the upcoming CSE meeting. An evaluation was scheduled with\n\na psychiatrist named Dr. Hahn. Dr. Hahn prepared a report based on his\n\n\n 12\n\fconsultation with M.S. but was not able to evaluate W.E. due to his migraines\n\nand/or anxiety. His report recommended a holistic approach to helping W.E.\n\nlearn how to cope with his stress, including bio‐feedback and relaxation methods,\n\nmindfulness training, play therapy, and access to an outdoor adventure‐based\n\nprogram.\n\n The CSE meeting was held on May 25, 2011, without a psychiatric\n\nevaluation. The Parents took issue with a number of aspects of that meeting,\n\nincluding the District’s failure to include a parent on the CSE. In advance of a\n\nfollow‐up CSE meeting on August 26, 2011, the Parents submitted letters from\n\nthree different clinicians who recommended a smaller school environment for\n\nW.E. or a non‐mainstream placement. The CSE ultimately classified W.E. as a\n\nstudent with a disability under the OHI designation. A draft IEP recommended\n\ntwice‐weekly individual counseling, program accommodations consisting of\n\naccess to class notes, nursing services, and extra time for completing assignments,\n\nand classes with a student‐to‐staff ratio of 8:1:1.\n\n Kathleen Coughlin, the District’s director of Pupil Personnel Services, later\n\ntestified that she discussed two programs at the August 2011 CSE meeting that\n\nmight meet W.E.’s needs for his ninth‐grade year: the BOCES (Board of\n\n\n 13\n\fCooperative Educational Services) program in Southern Westchester and the one\n\nin Putnam Northern Westchester. According to Ms. Coughlin, she explained to\n\nW.E.’s Parents that neither option could be recommended as a final placement\n\nuntil the referral process was complete but that the CSE could offer interim home\n\ninstruction pending completion of an expedited referral process. The Parents\n\nultimately concluded that BOCES was not an appropriate placement for W.E.\n\nThey formally withdrew W.E. from the District by letter dated August 30, 2011.4\n\n W.E. began private school at Northwood at the start of his ninth‐grade\n\nschool year. At Northwood the student‐teacher ratio in W.E.’s classes was below\n\n8:1 and W.E. was assigned a nurse as a faculty advisor; another nurse lived on his\n\ndormitory floor. Some classes were structured around a large oval table so as to\n\nrequire participation from all students, and the school incorporated organized\n\nstudy periods as well as outdoor activities into its educational structure.\n\nNorthwood ensured that W.E.’s teachers were aware of his accommodation plan,\n\nwhich required that W.E. receive additional time for in‐class assignments,\n\npreferential seating, graphic organizers or guided notes to facilitate verbal\n\n\n\n4In November 2011, the Parents visited the programs recommended by the CSE and learned that\nboth had a student‐to‐teacher ratio of 12:1:1 as opposed to the 8:1:1 ratio proposed in W.E.’s draft\nIEP.\n\n 14\n\flectures, and regular sessions with the school counselor. W.E. earned passing\n\ngrades in all of his ninth‐grade classes and, more notably, missed only nine days\n\nof school due to his migraines. He also grew more socially adjusted, received\n\npositive feedback from teachers, and tapered off his mood‐stabilizing medications.\n\nDr. Williams later testified that Northwood “appeared to be highly appropriate\n\nfor W.E. as reflected in his dramatic improvement in headache frequency that had\n\npersisted for the first time in previous years beyond the summer well into the fall\n\nterm and its conclusion.” Id. at 442 (brackets omitted). Some of W.E.’s teachers,\n\nhowever, indicated that he struggled with organization skills, preparing for class,\n\nand handing in assignments on time and that his grades were below his potential.\n\nOne teacher cited W.E.’s poor behavior in an incident in which she needed to\n\nremove him from class due to rude remarks he made to another student. In\n\nFebruary 2012, Northwood accepted W.E.’s re‐enrollment for his tenth‐grade year.\n\n In April 2012, the District began formulating a program recommendation\n\nfor W.E.’s tenth‐grade year despite W.E.’s attendance in private school. Reports\n\nprovided by W.E.’s teachers at Northwood noted his lack of organization, missing\n\nclass assignments, and stress‐triggered migraines alongside his strong intellectual\n\nabilities. A February 2012 BASC‐2 test showed significant improvement in\n\n\n 15\n\fW.E.’s attitude toward school, but the BASC‐2 completed by one of W.E.’s teachers\n\nat Northwood rated W.E. “as clinically significant for somatization and at risk for\n\nsocial skills.” Id. at 443. The CSE held W.E.’s annual review meeting on June\n\n14, 2012. Dr. Williams sent a letter to the CSE in advance of that meeting\n\ndescribing W.E.’s “remarkable” progress, which he attributed in part to his\n\nplacement at Northwood; Dr. Williams recommended that W.E. not undergo any\n\nchange of placement for the upcoming year. Id. At the meeting the Parents also\n\nshared their view that W.E. was experiencing fewer migraines, earning average\n\ngrades, and engaging in various outdoor activities at Northwood. The IEP that\n\nwas finalized for W.E. recommended a student‐teacher ratio of 8:1:1 and\n\nparticipation in Southern Westchester BOCES at Irvington High School’s TSP\n\n(Therapeutic Support‐Fragile Program). The Parents expressed concerns with\n\nthis prospective placement to District officials during a subsequent CSE meeting\n\nin August 2012. They rejected the IEP by letter dated September 20, 2012.\n\n W.E.’s accommodation plan for his tenth‐grade year at Northwood included\n\nthe four previous accommodations from his ninth‐grade year as well as three new\n\naccommodations: use of an iPad in class, a supervised study hall, and access to a\n\nschool nurse. In addition to continuing what was essentially informal counseling\n\n\n 16\n\ffrom the prior year with Donald Mellor, an English teacher and Northwood\n\ncounselor, Dr. Williams advocated for “a more systematic psychotherapy\n\nprogram,” and in the spring of his tenth‐grade year W.E. began meeting weekly\n\nwith a private social worker. Id. at 446–47. Reports from W.E.’s teachers\n\nthroughout his tenth‐grade year were again inconsistent, containing a mixture of\n\npraise for his academic achievement and criticism of his lack of organization,\n\nuneven performance, intermittent lack of engagement, and occasionally\n\ninappropriate behavior. W.E. was also able to play soccer and participate in an\n\noutdoor program in Yellowstone and seemed to grow in his social comfort and\n\nconfidence, though he experienced an especially severe migraine in May 2013.\n\nSeveral clinicians later testified that Northwood was appropriate for W.E.’s\n\nemotional and mental health needs.\n\n III. Administrative Proceedings\n\n A. Case One: The Eighth‐ and Ninth‐Grade School Years\n\n i. IHO Hearing and Decision\n\n In November 2011, W.E.’s Parents requested an impartial hearing, asserting\n\nthat the District denied W.E. a FAPE for W.E.’s eighth‐ and ninth‐grade academic\n\nyears. The Parents sought reimbursement for W.E.’s tuition at Northwood for\n\n\n 17\n\fninth grade and compensatory counseling services for the eighth‐grade school\n\nyear. A hearing was conducted before an IHO over nine days between February\n\n1 and April 2, 2012.\n\n On May 30, 2012, the IHO issued a 37‐page decision in which it concluded\n\nthat the District violated its Child Find obligation and failed to provide W.E. with\n\na FAPE for W.E.’s eighth‐grade year. According to the IHO, the District’s Child\n\nFind obligation was triggered by January 3 of the eighth‐grade school year, by\n\nwhich time W.E. had exhibited a pattern of missing an increasingly high number\n\nof school days for health reasons and numerous teachers had reported being\n\nunable to issue grades for W.E. due to missing assignments. The IHO also noted\n\nM.S.’s outreach to Dr. Brodsky during December 2010, which the IHO found also\n\nshould have put the District on notice even in the face of M.S.’s sometimes\n\nconflicting signals about the status of her son’s wellbeing. Additionally, W.E.’s\n\nclinically significant score regarding somatization on the BASC‐2 from the\n\nprevious spring had already triggered the accommodations that were developed\n\nin W.E.’s June 2010 Section 504 plan, and the IHO noted that by January 3, 2011, it\n\nshould have been apparent to the District that this earlier plan was not fulfilling\n\nW.E.’s needs. The IHO further concluded that had the CSE timely convened, the\n\n\n 18\n\frecord evidence would have supported a finding that W.E. satisfied the criteria for\n\nthe IDEA’s OHI designation.\n\n The IHO ordered the District to reimburse W.E.’s Parents for therapy\n\nsessions that provided Dr. Williams the diagnostic information used in preparing\n\nhis August 2011 evaluation report and which the District relied upon in\n\ndeveloping W.E.’s IEP. It also ordered reimbursement for five therapy sessions\n\nprovided by Dr. Andrew Robins during W.E.’s eighth‐grade year and payment for\n\nan additional fifteen hours of counseling. The IHO, however, denied the Parents’\n\nrequest for 200 hours of compensatory education in the form of tutoring, due to\n\ntheir failure to demonstrate that W.E. was in need of academic remediation.\n\n As for W.E.’s ninth‐grade year, the IHO concluded that the District failed to\n\nprovide W.E. a FAPE by neglecting to complete timely its evaluation of W.E. and\n\narrange for an appropriate placement for that school year. The IHO rejected the\n\nDistrict’s argument that the Parents’ failure to produce W.E. for a psychiatric\n\nevaluation excused its failure to evaluate W.E. within the 60‐days required by\n\napplicable State regulations, reasoning that “the District had the affirmative\n\nobligation to get the evaluation conducted even if it meant sending a psychiatrist\n\n\n\n\n 19\n\fto the student’s home” if it thought the evaluation necessary. 5 Special\n\nSupplemental Appendix (“Sp. Supp. App.”) 28.\n\n Even though the IHO found that the District denied W.E. a FAPE, it ruled\n\nthat the Parents were not entitled to tuition reimbursement because they did not\n\nmeet their burden of proving that Northwood was an appropriate placement for\n\nW.E. After reviewing in detail the relevant evidence presented by the Parents,\n\nincluding testimony offered by Dr. Williams, Dr. Robins, and Mr. Mellor, the IHO\n\nconcluded that there was no evidence that Northwood was tailored to addressing\n\nany of W.E.’s psychological or emotional issues, which the weight of the testimony\n\nindicated were the underlying triggers of his migraines. The IHO noted that\n\nNorthwood does not have a psychologist or psychiatrist on staff and that the only\n\ncounseling W.E. received at Northwood was in the form of informal check‐ins\n\ninitiated by Mr. Mellor. The IHO also found that while W.E. achieved “average\n\nto excellent grades,” he continued to exhibit struggles with organization and study\n\nskills, which Northwood did not work with him to remedy. Id. at 37. As for\n\n\n\n\n5 The IHO rejected the Parents’ argument that the District’s failure to include a parent member\non the CSE deprived W.E. of a FAPE but found that the District’s failure to include a special\neducation teacher as well as a general education teacher who was familiar with W.E. on the CSE\ncontributed to the District’s violation of the IDEA.\n\n 20\n\fequitable considerations, while not required to weigh them in light of its\n\nconclusion that the District’s reimbursement obligation was not triggered, the IHO\n\nnonetheless noted that W.E.’s Parents fully cooperated with the District and did\n\nnot impede the CSE process. The IHO rejected the District’s argument that the\n\nParents never intended to send W.E. anywhere but Northwood, finding instead\n\nthat they were open to the District’s recommendations and “lived with very real\n\nuncertainty about whether” W.E. would be able to attend Northwood as they had\n\nhoped. Id.\n\n ii. SRO Appeal and Decision\n\n The Parents appealed the IHO’s denial of reimbursement and request for\n\ncompensatory education services to the SRO and the District cross‐appealed the\n\nIHO’s finding that the District denied W.E. a FAPE for the eighth‐ and ninth‐grade\n\nschool years. The SRO ruled that, contrary to the IHO’s finding, the District did\n\nnot have reason to suspect that W.E. had a disability requiring special education\n\nprior to April 2011 due to W.E.’s overall positive educational progress with the\n\naccommodations the District provided him in the Section 504 plan developed in\n\nJune 2010. In reaching this conclusion, the SRO cited frequent communications\n\nbetween W.E.’s Parents and the District’s personnel between winter 2010 and\n\n\n 21\n\fspring 2011 evidencing the District’s commitment to fulfilling W.E.’s June 2010\n\nSection 504 plan, M.S.’s incidences of retracting earlier requests for intervention in\n\nthe face of W.E.’s improvement and in the interest of maintaining “normalcy” for\n\nher son, W.E.’s high level of academic achievement as reflected on his eighth‐grade\n\nreport card and state exams, and positive feedback from teachers regarding W.E.’s\n\nintellectual abilities, behavior, and attitudes. Id. at 69–72. The SRO also found\n\nthat W.E.’s BASC‐2 results from the previous spring were not enough to put the\n\nDistrict on notice given that the report did not cite any history of academic\n\ndifficulties or current interventions and Dr. Brodsky’s report otherwise credited\n\nW.E. with appropriate to above‐average levels of attention, intelligence,\n\nconceptual thinking, language, and academic skills. The SRO accordingly\n\nreversed the IHO’s finding that the District violated its Child Find obligation for\n\nW.E.’s eighth‐grade school year. And it affirmed the IHO’s denial of the Parents’\n\nrequest for 200 hours of compensatory home instruction while declining to disturb\n\nthe award of counseling reimbursement based on its understanding that the\n\nDistrict did not appeal that aspect of the IHO’s ruling.\n\n As for W.E.’s ninth‐grade year, the SRO concluded that the District violated\n\nthe IDEA by failing to have a finalized IEP in place at the start of ninth grade; it\n\n\n 22\n\ftherefore affirmed the IHO’s ruling that W.E. was denied a FAPE for that year.\n\nThe SRO next affirmed the IHO’s finding that Northwood was not an appropriate\n\nplacement for W.E. entitling the Parents to tuition reimbursement. After\n\nreviewing the relevant evidence, the SRO concluded that while W.E.’s social,\n\nemotional, and academic functioning improved at Northwood:\n\n the hearing record lacks evidence demonstrating that [Northwood]\n provided instruction that was designed to address the student’s tendencies\n to develop physical symptoms and exhibit school avoidance when under\n stress, or his need to develop coping skills to manage stress related to\n academics and social interactions, and to improve his organizational/study\n skills related to academics, and, that the instruction that the student received\n during the 2011‐12 school year was, in fact, available to all students enrolled\n at [Northwood]. The hearing record fully supports the IHO’s\n determination that the parents presented no evidence that the student’s\n underlying emotional issues, organizational issues, or study skills were\n addressed by [Northwood].\n\nId. at 84–85. In light of its conclusion the SRO declined to consider whether the\n\nequities supported the Parents’ claim.\n\n B. Case Two: The Tenth‐Grade School Year\n\n i. IHO Hearing and Decision\n\n The Parents filed their Case Two complaint notice in April 2013, alleging\n\nthat the District failed to provide W.E. a FAPE for W.E.’s tenth‐grade school year\n\nand seeking tuition reimbursement for that year at Northwood. Following a six‐\n\n\n 23\n\fday hearing, the IHO issued a decision on December 17, 2013, in which it\n\nconcluded that the District’s IEP process failed to account for W.E.’s extraordinary\n\ncharacteristics and that the resultant IEP was not responsive or appropriately\n\ntailored to W.E.’s needs, thus denying W.E. a FAPE during his tenth‐grade year.\n\nIn so ruling, the IHO separately addressed what it identified as the District’s\n\nalleged procedural and substantive violations of the IDEA. In the former\n\ncategory the IHO found that by recommending both a student‐teacher ratio of 8:1\n\nand mainstream placement in Math, English, and Science (which have a student‐\n\nteacher ratio of 24:1), W.E.’s IEP contained an internal inconsistency, which the\n\nDistrict never attempted to reconcile. The IHO declined to reach the alleged\n\nsubstantive violations in light of its conclusion that the District’s IEP constituted a\n\nprocedural violation that denied W.E. a FAPE but noted W.E.’s “significant social\n\nand educational progress in the prior school year at” Northwood. Supplemental\n\nAppendix (“Supp. App.”) 126.\n\n The IHO next ruled that by “providing the Student with educational\n\ninstruction specially designed to meet his needs, including certain neccesary[sic]\n\nsupport services,” Northwood was an appropriate placement for W.E. Id. at 127.\n\nThe IHO noted that Northwood’s small class size comported with W.E.’s IEP, and\n\n\n 24\n\fthat Northwood assisted W.E. with his need for organization during a free period,\n\nin addition to providing two supervised study halls and a nightly study session\n\nmonitored by a faculty member. It also found that Northwood’s residential\n\nenvironment combined with its mountain location and integration of outdoor,\n\nstress‐relieving activities rendered “it uniquely suited to address the Student’s\n\nmigraines.” Id. at 129. The IHO additionally emphasized Northwood’s\n\ndevelopment of an accommodation plan that was tailored to W.E.’s needs, the\n\ninformal counseling sessions the school provided W.E. on a regular basis, and\n\nNorthwood’s ability to deliver 24‐hour‐a‐day nursing services. It ruled\n\naccordingly that the Parents were entitled to tuition reimbursement.\n\n\n\n\n ii. SRO Appeal and Decision\n\n On March 18, 2014, the SRO issued a decision in which it agreed with the\n\nIHO’s findings regarding the internal inconsistencies in W.E.’s IEP and thus\n\naffirmed the IHO’s ruling that W.E. was denied a FAPE. The SRO, however,\n\nreversed the portion of the IHO’s decision ruling that Northwood was an\n\nappropriate placement for W.E. The SRO reviewed the relevant testimony and\n\n\n 25\n\fevidence in detail and found that it was “without question that during the 2012‐\n\n13 school year, the student exhibited progress in the sense that except when\n\nexperiencing a migraine, he attended classes consistently, achieved grades in the\n\n‘A‐’ to ‘C+’ range, and demonstrated increased maturity and ability to socially\n\ninteract with peers.” Id. at 109. Despite the accommodations and amenities\n\navailable at Northwood, the SRO concluded that:\n\n the hearing record does not contain evidence that [Northwood] provided\n the student with specially designed instruction to meet his ongoing need to\n develop insight and understanding into what triggered his stress and\n anxiety, and positive coping skills to address stress and decrease anxiety;\n difficulties that the hearing record showed not only contributed to the\n student’s tendency to develop migraine headaches, but also to exhibit\n organizational deficits and avoidance behaviors.\n\nId. The SRO also noted that while W.E. appeared to have benefitted from his\n\ninformal counseling with Mr. Mellor, the hearing record did not contain any\n\ncounseling notes, progress reports, or other records indicating that the counseling\n\nwas addressing W.E.’s “need to develop insight and coping skills,” and that while\n\nW.E. eventually participated in more systematic counseling with a private social\n\nworker later in the school year, there was similarly no evidence showing how this\n\nprivate counseling was tailored to W.E.’s needs. Id. And even though W.E.\n\nachieved satisfactory grades throughout his tenth‐grade year, the SRO observed\n\n\n 26\n\fthat “he continued to exhibit organizational and motivational/behavioral\n\ndifficulties at times in his class.” Id. at 110. The SRO found that Northwood\n\noffered W.E. accommodations that were available to virtually all other students,\n\nbut that the record lacked evidence showing how Northwood “provided specially\n\ndesigned instruction to address the student’s organizational difficulties.” Id.\n\nThe SRO ruled accordingly that the Parents failed to carry their burden of\n\ndemonstrating that Northwood was an appropriate placement.\n\n IV. District Court Proceedings\n\n The Parents sought judicial review of each of the SRO’s decisions. Their\n\nfirst federal court complaint, filed on April 30, 2014, challenged the SRO’s decision\n\nin Case One and sought reimbursement of home instruction and counseling costs\n\nfor W.E.’s eighth‐grade school year and tuition reimbursement for their unilateral\n\nplacement of W.E. at Northwood for the ninth‐grade school year. The second\n\ncomplaint, filed on June 13, 2014, challenged the SRO’s decision in Case Two and\n\nsought tuition reimbursement for W.E.’s placement at Northwood for the tenth‐\n\ngrade academic year. The two cases were consolidated in September 2015, and\n\nthe parties filed cross‐motions for summary judgment.\n\n A. Case One\n\n\n 27\n\f With respect to W.E.’s eighth‐grade year, the district court found “no reason\n\nto disturb the SRO’s reasoned analysis,” concluding that the District did not deny\n\nW.E. a FAPE. W.A., 219 F. Supp. 3d at 458. While the district court\n\nacknowledged the Parents’ emphasis on W.E.’s clinically significant somatization\n\nscores from seventh grade and incomplete grades from his eighth‐grade second‐\n\nquarter, among other signals that the Parents alleged should have put the District\n\non notice of W.E.’s disability, the district court noted that “[t]he crux of the SRO’s\n\ndecision, however, was not so much that there was no basis to suspect that W.E.\n\nmay be disabled, but that there was no reason to suspect that special education was\n\nneeded to remedy that disability.” Id. at 457. Given that the SRO thoroughly\n\nconsidered W.E.’s progress in the general education curriculum with the\n\naccommodations provided in his Section 504 plan, as well as his performance on\n\nstandardized tests and psychological evaluations and feedback from his teachers,\n\nand given that the SRO weighed testimony from M.S. and from W.E.’s counselors,\n\nneurologist and a private psychologist, the court found the SRO’s conclusions\n\nsupported by the record. In this regard the district court found that “the SRO’s\n\ndecision stood on more solid conceptual footing than the IHO’s.” Id. at 459.\n\n\n\n\n 28\n\f As for the issue of tuition reimbursement, the district court noted as an\n\ninitial matter that the District did not challenge the SRO’s conclusion in each case\n\nthat W.E. was denied a FAPE for his ninth‐ and tenth‐grade years and that it would\n\ntherefore skip directly to the reimbursement analysis. The court deferred to the\n\nSRO’s conclusion in Case One that Northwood was not an appropriate placement\n\nfor W.E.’s ninth‐grade year but held that the SRO’s conclusion in Case Two was\n\nneither well‐reasoned nor persuasive. While the records in both cases would\n\nappear relevant to the common question of whether Northwood was an\n\nappropriate placement, and while the same SRO presided over both\n\nadministrative appeals, the district court noted that it would attempt to analyze\n\nthe issue separately in the context of each of the two school years, “[g]iven the\n\nmaterial differences between the SRO’s two opinions in terms of quality and\n\npersuasiveness.” Id. at 463.\n\n The district court found the Parents’ challenges to the IHO and SRO\n\ndecisions unconvincing in Case One, noting that both the IHO and SRO took\n\nadequate stock of the available evidence and that any reputed flaws in the\n\nopinions were ultimately insufficient to strip them of the deference to which they\n\nwere otherwise entitled. The district court also independently assessed the\n\n\n 29\n\fParents’ arguments regarding Northwood’s appropriateness as a placement for\n\nW.E.’s ninth‐grade year and concluded that the substantial improvement in W.E.’s\n\nattendance record could not alone satisfy the Parents’ burden. W.E.’s grades and\n\npositive response to the Northwood culture did not lead the district court to\n\nquestion the IHO’s and SRO’s reasoning. Nor did the district court think it was\n\nin a position to question the state officers’ determination that W.E.’s counseling\n\nwas not tailored to his needs. The district court did note that it found the SRO’s\n\nreasoning regarding Northwood’s smaller residential setting unpersuasive given\n\nthe evidence that W.E. was in need of a smaller school environment, but that this\n\nfactor was not sufficient to undermine the SRO’s opinion. The court reached a\n\nsimilar conclusion regarding the SRO’s finding that Northwood’s accommodation\n\nplan was not responsive to W.E.’s needs, and noted that the fact that other\n\nNorthwood students received the same accommodations did not speak to their\n\nefficacy or appropriateness for W.E. Despite the flaws that the district court\n\nidentified in the SRO’s opinion, the court agreed that the Parents did not satisfy\n\ntheir burden of showing that Northwood was an appropriate placement,\n\nespecially in light of the SRO’s analysis regarding Northwood’s failure to offer\n\n\n\n\n 30\n\fmeaningful counseling or vehicles for addressing W.E.’s organizational and stress‐\n\nrelated issues.\n\n B. Case Two\n\n Although the same SRO presided over both appeals, the district court found\n\nits reasoning deficient in Case Two. It noted that “although the SRO provided a\n\nthorough recitation of the facts on the record, it dedicated barely two pages to\n\nactually analyzing whether Northwood was an appropriate placement.” Id. at\n\n470. The district court found that the SRO placed undue emphasis on W.E.’s need\n\nto cope with stress at the expense of W.E.’s other needs relating to his\n\norganizational skills and study habits and a supportive educational environment.\n\nWhile the court did not agree with all of the IHO’s reasoning, it found the IHO’s\n\nanalysis more compelling and accordingly considered its opinion in weighing the\n\nappropriateness of Northwood as a placement for W.E.’s tenth‐grade year.\n\n The district court addressed each of the Parents’ arguments, first finding\n\nthat the SRO’s conclusions regarding W.E.’s mixed academic progress were\n\nlargely consistent with the record but that this factor should nonetheless slightly\n\nfavor reimbursement. The district court observed no error in the SRO’s\n\nconclusion that W.E.’s participation in outdoor activities was not specially\n\n\n 31\n\fdesigned for his needs but found that the SRO failed to accord appropriate weight\n\nto the significant improvement in W.E.’s attendance, noting that this improvement\n\n“was attributable to Northwood’s boarding feature.” Id. at 472. As for\n\nNorthwood’s accommodations, the district court was particularly concerned by\n\nthe SRO’s failure to consider W.E.’s use of an iPad, which testimony before the\n\nIHO had indicated “was a ‘godsend’ for W.E.” and helped with his organizational\n\ndifficulties. Id. at 473. The court noted that the fact that the iPad was generally\n\navailable to all Northwood students did not change its analysis, as “the Second\n\nCircuit has never indicated that a resource available to all students cannot be\n\nconsidered for purposes of determining appropriate placement if that resource\n\naddressed a specific need of the child.” Id. Although the district court noted\n\nthat the record contained little evidence of the effect of a second study hall\n\nprovided to W.E., it found the SRO’s failure to even mention the addition of a\n\nstudy hall concerning. As for counseling, the district court agreed with the SRO\n\nthat the informal counseling provided by Mr. Mellor was not meaningfully or\n\nappropriately tailored to W.E.’s needs. And the court found that Northwood’s\n\n24‐hour nursing support weighed only slightly in favor of reimbursement given\n\nthe minimal record evidence showing specific benefits that W.E. received.\n\n\n 32\n\fFinally, the district court held that Northwood’s small class size—which satisfied\n\nW.E.’s IEP—favored reimbursement, finding again that the fact that such a feature\n\nis generally available does not undermine its appropriateness in addressing a\n\nparticular student’s needs.\n\n In short, the district court noted that while there was “no question the SRO\n\nconsidered all of the evidence on the record,” it found its discussion of\n\nNorthwood’s appropriateness truncated and inadequate, specifically in failing to\n\nconsider Northwood’s small class size, residential component, 24‐hour nursing,\n\nand the impact of its accommodations on W.E.’s specific needs. Id. at 476. The\n\ncourt again noted that it reached a differing conclusion regarding the SRO’s\n\nopinion in Case Two due to its more conclusory and unpersuasive nature, but also\n\nbecause the record for the tenth‐grade year was “more robust and offers more\n\ninsight into the benefits and accommodations Northwood offered to W.E. to meet\n\nhis specific needs.” Id. at 477. It also considered the equities de novo and\n\nconcluded that they, too, favored reimbursement, finding that the Parents\n\nparticipated in the CSE process with an open mind and afforded the District an\n\nopportunity to construct an appropriate IEP while simultaneously pursuing\n\nnecessary steps to secure W.E.’s prospective re‐enrollment at Northwood. The\n\n\n 33\n\fcourt noted, for instance, that the Parents made another visit to the Southern\n\nWestchester BOCES program in July 2012, which undermined the District’s\n\nargument that W.E.’s enrollment at Northwood was inevitable.\n\n C. The District’s Counterclaim\n\n The district court also granted the District’s motion to amend to add a\n\ncounterclaim for costs awarded by the IHO in Case One. The parties cross‐\n\nmoved for summary judgment on the counterclaim and on July 18, 2017, the\n\ndistrict court awarded summary judgment to the District and vacated the award\n\nof compensatory education for the eighth‐grade school year based on its\n\naffirmance of the SRO’s ruling that W.E. was not denied a FAPE during eighth\n\ngrade. On September 13, 2017, the district court entered final judgment\n\nincorporating its opinions and orders dated November 23, 2016, and July 18, 2017.\n\nThe District appealed and the Parents cross‐appealed.\n\n DISCUSSION\n\n I. Deference Owed to State Hearing and Review Officers\n\n “We undergo a circumscribed de novo review of a district court’s grant of\n\nsummary judgment in the IDEA context because the responsibility for\n\ndetermining whether a challenged IEP will provide a child with a FAPE rests in\n\n\n 34\n\fthe first instance with administrative hearing and review officers.” M.W. ex rel.\n\nS.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (internal quotation\n\nmarks and brackets omitted). “Summary judgment in the IDEA context,\n\ntherefore, is only a ‘pragmatic procedural mechanism for reviewing\n\nadministrative decisions.’” Id. (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free\n\nSch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam)). “Federal courts reviewing\n\nadministrative decisions [under the IDEA] must give ‘due weight’ to the\n\nadministrative proceedings, ‘mindful that the judiciary generally lacks the\n\nspecialized knowledge and experience necessary to resolve persistent and difficult\n\nquestions of educational policy.’” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377,\n\n381 (2d Cir. 2003) (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129\n\n(2d Cir. 1998)).\n\n Courts reviewing the state agency’s decision must base their decision on a\n\npreponderance of the evidence and may not substitute their own views on\n\neducational policy for those of the school authorities. A.C., 553 F.3d at 171. Our\n\nreview of the state’s educational decisions is therefore limited, demanding a level\n\nof scrutiny that is more critical than clear‐error but not nearly as complete as de\n\nnovo. See C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 77 (2d Cir. 2014).\n\n\n 35\n\fAccordingly, what we refer to as “de novo review” in fact “only seeks to\n\nindependently verify that the administrative record supports the district court’s\n\ndetermination” regarding the sufficiency of the state’s educational decisions. Mr.\n\nP, 885 F.3d at 748 (quoting M.W., 725 F.3d at 138). We similarly afford special\n\ndeference to the district court where its “decision was based solely on the\n\nadministrative record.” A.C., 553 F.3d at 171.\n\n If the SRO and IHO decisions conflict, “the IHO’s decision ‘may be afforded\n\ndiminished weight.’” Id. (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d\n\n105, 113 n.2 (2d Cir. 2007)). In other words, we would “defer to the final decision\n\nof the state authorities, that is, the SRO’s decision.” M.W., 725 F.3d at 139\n\n(internal quotation marks omitted). Yet such deference applies only to the SRO’s\n\n“reasoned conclusions”—that is, “[r]eviewing courts must look to the factors that\n\n‘normally determine whether any particular judgment is persuasive’” and must\n\nultimately “defer to the SRO’s decision on matters requiring educational expertise\n\nunless [the court] concludes that the decision was inadequately reasoned, in which\n\ncase a better‐reasoned IHO opinion may be considered instead.” R.E., 694 F.3d\n\nat 189 (quoting M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 244, 246 (2d Cir. 2012)).\n\n“But the district court’s determination of the persuasiveness of an administrative\n\n\n 36\n\ffinding must also be colored by an acute awareness of institutional competence\n\nand role. . . . [T]he purpose of the IDEA is to provide funding to states so\n\nthat they can provide a decent education for disabled students consistent with their\n\ntraditional role in educating their residents.” M.H., 685 F.3d at 244.\n\n II. Issues for Judicial Review\n\n A. Case One\n\n i. W.E.’s Eighth‐Grade Year\n\n The Parents challenge the district court’s deference to the SRO’s ruling that\n\nthe District met its Child Find obligation during W.E.’s eighth‐grade year. The\n\nCouncil of Parent Attorneys and Advocates, Inc. has also submitted a brief as\n\namicus curiae in which it asserts that the District violated its Child Find obligation\n\nwith respect to W.E. As noted previously, the IDEA and its implementing\n\nregulations require each State to develop policies and procedures for identifying\n\nand evaluating children with disabilities for special education services. Mr. P,\n\n885 F.3d at 749; 34 C.F.R. § 300.111. This obligation extends not only to children\n\nwith disabilities but also to those “who are suspected of being a child with a\n\ndisability . . . and in need of special education, even though they are advancing\n\nfrom grade to grade.” Id. § 300.111(c)(1). “However, ‘Child Find does not\n\n\n 37\n\fdemand that schools conduct a formal evaluation of every struggling student.’”\n\nMr. P, 885 F.3d at 749 (quoting D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d.\n\nCir. 2012)).\n\n “To hold a school district liable for failing to identify a student who should\n\nbe evaluated for purposes of receiving special education, a claimant must show\n\nthat school officials overlooked clear signs of disability and were negligent in\n\nfailing to order testing, or that there was no rational justification for not deciding\n\nto evaluate.” Id. at 750 (internal quotation marks omitted). “A school district\n\nmust begin the evaluation process within a reasonable time after the district is on\n\nnotice of a likely disability.” Id. The SRO ruled that the District was not on\n\nnotice that W.E. might have a disability warranting special education services\n\nprior to the Parents’ referral of W.E. to the CSE in April 2011 and that it therefore\n\ndid not violate its Child Find obligation. Its thorough opinion found that the\n\nadministrative record supported the District’s view that W.E. appeared to be\n\n“making progress within the general curriculum despite his absences.” Sp.\n\nSupp. App. 71. It also noted that the District worked with the Parents to enable\n\nW.E. to catch up on schoolwork despite his extensive absences, citing, inter alia,\n\nlaudatory contemporaneous remarks made by M.S. about the District and its\n\n\n 38\n\fteachers, as well as M.S.’s decision to cancel a January 2011 Section 504 review\n\nmeeting due to her communicating that “I think we have everything in place.”\n\nId. at 70.\n\n In arguing that the District was on notice of W.E.’s potential disability much\n\nearlier, the Parents point out that by mid‐January 2011, W.E. had already missed\n\nmore days of school than permitted by District policy for the entire year, received\n\nincompletes in three subjects, dropped his Enriched English class, and that his\n\ngrade in Algebra had fallen from a 93 to a 78. With the exception of W.E. having\n\ndropped Enriched English, the SRO’s opinion indicates awareness of these facts,\n\nhowever, and instead reaches a contrary conclusion that it was not until the third\n\nquarter of W.E.’s eighth grade year that his “absences began to compromise his\n\nability to achieve academically.” Id. at 71. And as the district court noted, the\n\nSRO also considered W.E.’s standardized test scores and feedback from teachers,\n\nthus construing the meaning of “academic success” more broadly than the IHO\n\nhad done—an analysis it was entitled to undertake. See W.A., 219 F. Supp. 3d at\n\n459.\n\n Because we must defer to the SRO’s “reasoned conclusions” on “matters\n\nrequiring educational expertise,” R.E., 694 F.3d at 189, we hold that the district\n\n\n 39\n\fcourt properly deferred to the SRO on the question of whether the District violated\n\nits Child Find obligation for W.E.’s eighth‐grade school year. The question of\n\nwhether the District should have taken more aggressive steps in the face of\n\ncompeting signals arising from various interactions with the Parents and with the\n\nDistrict’s personnel regarding W.E.’s progress in the general education curriculum\n\nis an issue that calls for expertise; it is therefore an issue on which we must defer\n\nto the educational experts. In addition, the district court correctly noted that\n\n“[t]he crux of the SRO’s decision, however, was not so much that there was no\n\nbasis to suspect that W.E. may be disabled, but that there was no reason to suspect\n\nthat special education was needed to remedy that disability.” W.A., 219 F. Supp.\n\n3d at 457. This is a conclusion that a reviewing court should not disturb absent\n\nan objective flaw in the SRO’s reasoning. For similar reasons, we decline to\n\nconsider the argument presented by amicus that school avoidance is a\n\n“manifestation of disability” that demanded intervention when the State was in\n\nthe best position to assess whether and to what extent W.E.’s absences warranted\n\nspecial education services.\n\n In light of our holding that W.E. was not denied a FAPE for his eighth‐grade\n\nyear, we decline, as the district court did, to reach the Parents’ request for\n\n\n 40\n\fcompensatory education for that year. For the same reason, we affirm the district\n\ncourt’s July 18, 2017 decision vacating the SRO’s award of compensatory\n\ncounseling services for eighth grade. While the Parents assert that the award was\n\nissued in connection with the denial of a FAPE for ninth grade because it was\n\nintended to reimburse the Parents for therapy sessions that Dr. Williams relied\n\nupon to develop W.E.’s ninth‐grade IEP, the IHO opinion in Case One makes clear\n\nthat the award of counseling reimbursement was issued in connection with the\n\ndenial of a FAPE for eighth grade. We are thus not inclined to override the State’s\n\nexplicit attribution. Nor do we find compelling the Parents’ argument that the\n\nDistrict’s alleged failure to appeal the IHO’s limited award of reimbursement for\n\nDr. Williams’s psychiatric services rendered the district court without jurisdiction\n\nto grant the District’s motion to amend to seek recovery of these costs. As the\n\ndistrict court found, it “defies common sense to suggest” that the District did not\n\nadministratively appeal the reimbursement award when there is no question that\n\nthe District cross‐appealed the portion of the IHO’s decision that found that the\n\nDistrict had violated its Child Find obligation and denied W.E. a FAPE for his\n\neighth‐grade year. See W.A., 2017 WL 3066888, at *9.\n\n\n\n\n 41\n\f In sum, we affirm in all respects the district court’s judgment and\n\naccompanying opinion and orders regarding the eighth‐grade school year.\n\n ii. Whether Northwood Was an Appropriate Placement for\n W.E.’s Ninth‐Grade Year\n\n Courts apply the three‐step “Burlington/Carter” test to determine whether a\n\nparent is entitled to retroactive tuition reimbursement. C.F., 746 F.3d at 76. We\n\nfirst assess whether the District provided a FAPE; if it did not, we move on to the\n\nsecond and third steps, under which the parents bear the burden of showing that\n\ntheir unilateral private school placement was appropriate for the child’s needs and\n\nthat the equities work in their favor. Id.; see also A.C., 553 F.3d at 171–72. The\n\nDistrict does not contest that it failed to provide W.E. a FAPE for W.E.’s ninth‐ or\n\ntenth‐grade school years, and we therefore move directly to the second step of the\n\nanalysis.\n\n At step two, the private school placement “must be reasonably calculated to\n\nenable the child to receive educational benefits.” M.H., 685 F.3d at 252 (internal\n\nquotation marks omitted). “Grades, test scores, and regular advancement may\n\nconstitute evidence that a child is receiving educational benefit, but courts\n\nassessing the propriety of a unilateral placement consider the totality of the\n\ncircumstances in determining whether that placement reasonably serves a child’s\n\n 42\n\findividual needs.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir.\n\n2006). Even where the private placement yields evidence of the child’s success,\n\nhowever:\n\n courts should not disturb a state’s denial of IDEA reimbursement where the\n chief benefits of the chosen school are the kind of advantages that might be\n preferred by parents of any child, disabled or not. Rather, the unilateral\n private placement is only appropriate if it provides education instruction\n [specially] designed to meet the unique needs of a handicapped child.\n\nM.H., 685 F.3d at 252 (quoting Gagliardo, 489 F.3d at 115 (internal quotation marks\n\nand alterations omitted).\n\n Our conclusion that the SRO’s opinion in Case One was sufficiently\n\nreasoned and adequately supported by the administrative record supports the\n\ndeference that the district court conferred on the SRO on issues demanding its\n\neducational expertise as concerns W.E.’s ninth‐grade year. We therefore affirm\n\nthe district court’s deference to the SRO’s ruling that Northwood School was not\n\nan appropriate placement entitling the Parents to tuition reimbursement for ninth\n\ngrade. While the Parents argue that the State failed to consider fully\n\nNorthwood’s responsiveness to W.E.’s unique needs and the significant\n\nimprovements he experienced while enrolled at the private school—including his\n\nmomentous increase in attendance—the SRO’s opinion reflects that it considered\n\n\n 43\n\fthe relevant evidence of W.E.’s progress. For instance, the SRO noted that “the\n\nhearing record supports a finding that the student’s social/emotional and\n\nacademic functioning improved since the end of the 2010‐11 school year, . . . and\n\nthat the student achieved some progress academically during the 2011‐12 school\n\nyear” while simultaneously citing reports from W.E.’s teachers describing his\n\ninconsistent level of academic effort, timeliness, and preparation. Sp. Supp. App.\n\n84. The SRO also properly cited this Court’s decision in Gagliardo, 489 F.3d at 115,\n\nfor the proposition that a student’s progress in a unilateral placement, while\n\nrelevant to the court’s inquiry, cannot alone demonstrate the appropriateness of\n\nthat placement.\n\n Indeed, the crux of the SRO’s decision was not that W.E. failed to progress\n\nat Northwood, but, rather, that:\n\n the hearing record lacks evidence demonstrating that [Northwood]\n provided instruction that was designed to address the student’s tendencies\n to develop physical symptoms and exhibit school avoidance when under\n stress, or his need to develop coping skills to manage stress related to\n academics and social interactions, and to improve his organizational/study\n skills related to academics, and, that the instruction that the student received\n during the 2011‐12 school year was, in fact, available to all students enrolled\n at [Northwood].\n\nId. at 84–85. The SRO thus concluded that placing W.E. in Northwood’s\n\n“residential setting—which merely eliminated his exposure to the public school\n\n 44\n\fenvironment and to activities that he perceived as stressful—is not sufficient in\n\nthis case to meet the parents’ burden to establish that [Northwood’s] program\n\nprovided the student with educational instruction specially designed to meet his\n\nunique needs.” Id. at 85. Instead, the SRO found that Northwood’s educational\n\nand environmental benefits were those “that might be preferred by parents of any\n\nchild, disabled or not,” and therefore did not satisfy the IDEA’s definition of\n\nspecial education. Id. (quoting Gagliardo, 489 F.3d at 115).\n\n Because the question of whether a private school placement provided\n\nspecial education services is precisely a question on which we defer to educational\n\nexperts, see, e.g., Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 451–52 (2d Cir. 2015), and\n\nbecause the SRO’s considered opinion reflects that it viewed W.E.’s migraines as\n\nstemming from underlying emotional and psychological issues that Northwood\n\nwas not equipped to address, we hold that the district court properly deferred to\n\nthe SRO notwithstanding its disagreement with certain aspects of the SRO’s\n\nopinion. We therefore do not reach the issue of whether the equities favored\n\nreimbursement.\n\n B. Case Two\n\n i. Whether Northwood Was an Appropriate Placement for W.E.’s\n Tenth‐Grade Year\n\n 45\n\f As already noted, while the same SRO presided over the administrative\n\nappeals in both Case One and Case Two, the district court found its opinion in the\n\nlatter case conclusory and unpersuasive and instead took the IHO’s opinion,\n\nwhich it found more convincing, into account. “Where the IHO and SRO\n\ndisagree, reviewing courts are not entitled to adopt the conclusions of either state\n\nreviewer according to their own policy preferences or views of the evidence; courts\n\nmust defer to the reasoned conclusions of the SRO as the final state administrative\n\ndetermination.” M.H., 685 F.3d at 246. Because we are persuaded that the\n\ndistrict court improperly substituted its judgment on matters of educational policy\n\nfor that of the SRO, and in light of the district court’s own acknowledgment that\n\n“[t]here is no question the SRO considered all of the evidence on the record,” W.A.,\n\n219 F. Supp. 3d at 476, we hold that the district court improperly failed to accord\n\ndeference to the SRO’s ruling that Northwood School was not an appropriate\n\nplacement for W.E.’s tenth‐grade year.\n\n First, we perceive no qualitative difference in the SRO’s opinions in Case\n\nOne and Two that would entitle the former but not the latter to deference. The\n\ndistrict court’s characterization of the SRO’s opinion in Case Two as “dedicat[ing]\n\nbarely two pages to actually analyzing whether Northwood was an appropriate\n\n 46\n\fplacement,” Id. at 470, is unfounded. It ignores the SRO’s comprehensive review\n\nof the relevant record evidence documenting, inter alia, W.E.’s progress, reports\n\nfrom W.E.’s Northwood teachers and clinicians, and the various accommodations\n\nand amenities W.E. received at Northwood—all of which informed the SRO’s\n\nultimate conclusion as to whether Northwood provided W.E. special education\n\nwithin the meaning of the IDEA.\n\n The district court additionally criticized the SRO’s opinion as omitting\n\ncertain considerations, but the record reveals that, by and large, the SRO did\n\nconsider the same factors that the district court found dispositive and instead\n\ndiffered as to their import. For example, the district court took issue with the\n\nthoroughness of the SRO’s discussion of W.E.’s tenth‐grade accommodations,\n\nspecifically focusing on the way in which an iPad Northwood provided benefitted\n\nW.E.’s academic progress. According to the district court, “the SRO made no\n\nreference to the device in its analysis of whether Northwood was an appropriate\n\nplacement.” Id. at 473. In fact, however, the SRO opinion accounts for testimony\n\nconcerning the iPad in several places, specifically noting its use “as an\n\ninstructional or learning aid.” Supp. App. 104. While the district court\n\nemphasized testimony from W.E.’s western civilization teacher indicating “that\n\n\n 47\n\fthe iPad was a ‘godsend’ for W.E.”, W.A., 219 F. Supp. 3d at 473, the SRO\n\nhighlighted, inter alia, other testimony from W.E.’s English teacher and counselor,\n\nindicating that he thought the iPad was a good match but that he could not provide\n\nquantifiable evidence of the way W.E.’s accommodation plan had benefitted him.\n\nThe SRO also noted comments from W.E.’s western civilization teacher stating that\n\nW.E. used the iPad for notetaking and homework and that it lessened his need for\n\norganizational help.\n\n The district court also faulted the SRO for failing to discuss the vast\n\nimprovement in W.E.’s attendance while at Northwood. But the SRO observed\n\nthat the decreased frequency of W.E.’s headaches yielded “significantly improved\n\nschool attendance,” Supp. App. 100, later stating that “it is without question that\n\nduring the 2012‐13 school year, the student exhibited progress in the sense that\n\nexcept when experiencing a migraine, he attended classes consistently, achieved\n\ngrades in the ‘A‐‘ to ‘C+’ range, and demonstrated increased maturity and ability\n\nto socially interact with peers,” Id. at 109. What is more, while W.E.’s improved\n\nattendance at Northwood undoubtedly serves as compelling indicia of progress,\n\nit was from eighth to ninth grade that W.E. went from missing over 100 days of\n\nschool to only nine the following year. Yet the district court did not find this\n\n\n 48\n\fenormous improvement vital enough to overturn the SRO’s assessment in Case\n\nOne. Between ninth and tenth grade, by contrast, W.E.’s absences essentially\n\nremained the same, and so the district court’s emphasis on W.E.’s attendance in\n\nthe latter school year cannot bear the weight assigned to it.\n\n Outside of W.E.’s attendance and his use of an iPad, the district court\n\nlamented the SRO’s failure to discuss a second study hall Northwood offered\n\nduring the tenth‐grade school year, yet simultaneously noted that the record\n\ncontained little evidence of the study hall’s benefit. It also critiqued the SRO’s\n\nlack of attention to Northwood’s small class size and boarding‐school feature,\n\nwhich, according to the district court, “provided W.E. benefits specific to his\n\nunique needs.” W.A., 219 F. Supp. 3d at 476. The SRO’s opinion, however, does\n\nreflect that it considered Northwood’s small student‐to‐teacher ratio and the way\n\nin which it enabled “discussion‐based learning.” Supp. App. 107. In so doing it\n\ncited Frank G., 459 F.3d at 365, where this Court recognized that small class size\n\nfalls within the IDEA’s definition of special education but declined to decide\n\nwhether small class size alone could render a private placement appropriate.\n\nThis Court, moreover, recently recognized that small class size “is the kind of\n\neducational and environmental advantage that might be preferred by parents of\n\n\n 49\n\fany child, disabled or not.” Doe, 790 F.3d at 452 (internal quotation marks and\n\nalterations omitted); see also Gagliardo, 489 F.3d at 115. The district court\n\notherwise agreed with the SRO’s characterization of W.E.’s academic performance,\n\nas well as the SRO’s conclusions that Northwood did not provide meaningful\n\ncounseling and that its outdoor programming did not render it an appropriate\n\nplacement.6\n\n In short, the district court’s decision not to defer to the SRO’s opinion on the\n\nbasis of the SRO’s putatively perfunctory analysis is not supported by the record.\n\nCf. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 838 (2d Cir. 2014) (declining\n\nto afford deference to SRO where its opinion “was not sufficiently reasoned or\n\ncarefully considered because the SRO did not consider or comment on any of the\n\nspecific services provided to [the student at the private school] or the progress that\n\nthe record shows he made at the school”).\n\n Second, rather than “credit[] the conclusions that were most consistent with\n\nits own subjective analysis,” the reviewing court should only reject the SRO’s\n\n\n\n6 The district court was essentially ambivalent about the impact of nursing services, though its\nobservation that “[i]t strains credulity to suggest that an around‐the‐clock nurse staff, one of\nwhom resided on the same floor as W.E., . . . was not an educational feature that worked to W.E.’s\nspecific benefit,” W.A., 219 F. Supp.3d at 475, would appear to apply with equal force to W.E.’s\nninth grade year, where the district court reached a contrary conclusion.\n\n 50\n\fconclusions if it finds that they are not supported by a preponderance of the\n\nevidence. M.H., 685 F.3d at 248. Here, the district court did not address whether\n\nthe SRO’s conclusions were supported by a preponderance and instead appeared\n\nto conduct a true de novo analysis of whether each factor favored reimbursement,\n\nultimately holding that the SRO “failed to give adequate weight to many of\n\nNorthwood’s most beneficial features and erroneously discounted the value of\n\nsome of those features merely because they were generally available to all\n\nstudents.” W.A., 219 F. Supp. 3d at 470. We agree with the district court that a\n\nresource that benefits an entire student population can constitute special education\n\nin certain circumstances. Under our precedents, however, a reviewing court is\n\nnot entitled to overrule the State on a question of educational policy—such as\n\nwhether a generally available resource is specially tailored to a particular disabled\n\nstudent’s needs—based merely on its own disagreement with the State’s\n\nevaluation of that resource. See M.H., 685 F.3d at 241; see also Cerra v. Pawling Cent.\n\nSch. Dist., 427 F.3d 186, 196 (2d Cir. 2005) (For a reviewing court to render its own\n\ndetermination on a matter of educational policy, it must point to “objective\n\nevidence in the record suggesting that the SRO has reached an erroneous\n\nconclusion.”). In ruling that Northwood School was an appropriate placement\n\n\n 51\n\ffor W.E.’s tenth‐grade year, the district court appeared to do just that—conducting\n\nits own totality of the circumstances analysis in which it substituted its subjective\n\nassessment for that of the State.\n\n As in Case One, the SRO’s ruling was grounded in its conclusion that the\n\nrecord lacked evidence showing that Northwood provided W.E. with “specially\n\ndesigned instruction to meet his ongoing need to develop insight and\n\nunderstanding into what triggered his stress and anxiety, and positive coping\n\nskills to address stress and decrease anxiety; difficulties that the hearing record\n\nshowed not only contributed to the student’s tendency to develop migraine\n\nheadaches, but also to exhibit organizational deficits and avoidance behaviors.”\n\nSupp. App. 109. While the Parents highlight the many benefits Northwood\n\nprovided W.E., endorsements of the private school by W.E.’s medical\n\nprofessionals, and various emblems of W.E.’s academic, social, and emotional\n\ngrowth during his tenure, many of the features that appear to have abated W.E.’s\n\nstress and migraines are those that any parent would desire in an educational\n\nsetting—namely, smaller classes, closer attention by faculty and staff, bucolic\n\nsurroundings in a residential environment, and use of an iPad for organization\n\nand note‐taking. Thus, even though the record may support the view that\n\n\n 52\n\fNorthwood was an excellent placement for W.E., it also supports the SRO’s\n\nconclusion that Northwood was not methodologically or therapeutically\n\nstructured in the way required for reimbursement under the IDEA. See Gagliardo,\n\n489 F.3d at 115. This educational policy judgment likewise reinforces the\n\ndeference that we believe we must give the SRO’s opinion.\n\n CONCLUSION\n\n We affirm the district court’s November 23, 2016 opinion and order to the\n\nextent it deferred to the SRO’s conclusions regarding the District’s Child Find\n\nobligation and Northwood’s failure to provide W.E. special education during the\n\nninth‐grade academic year. Because the district court failed to confer appropriate\n\ndeference to the SRO’s analysis regarding Northwood’s lack of specially designed\n\ninstruction tailored to W.E.’s unique needs during the tenth‐grade school year, we\n\nreverse the district court’s November 23, 2016 opinion and order to the extent it\n\nheld that Northwood School was an appropriate placement for that school year\n\nand accordingly vacate its award of tuition reimbursement. We also affirm the\n\ndistrict court’s July 18, 2017 opinion and order granting the District’s motion for\n\nsummary judgment and denying the Parents’ cross‐motion for summary\n\n\n\n\n 53\n\fjudgment and vacating the award of compensatory education for the eighth‐grade\n\nschool year.\n\n Because the District is the prevailing party both on appeal and on the cross‐\n\nappeal, costs under Fed. R. App. P. 39(a) shall be taxed against Appellees‐Cross‐\n\nAppellants.\n\n\n\n\n 54\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: W.A., M.S., Individually and on Behalf of W.E., Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants, v. HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, Defendant-Counter-Claimant-Appellant-Cross-Appellee.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-06-14\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17-3248 (L)\\nW.A., M.S. v. Hendrick Hudson Central School District\\n\\n In the\\n United States Court of Appeals\\n for the\\n Second Circuit\\n August Term, 2018\\n\\n Argued: February 21, 2019\\n Decided: June 14, 2019\\n\\n Docket Nos. 17‐3248, 17‐3313\\n\\n\\n\\n W.A., M.S., INDIVIDUALLY AND ON BEHALF OF W.E.,\\n\\n Plaintiffs‐Counter‐Defendants‐Appellees‐Cross‐Appellants,\\n\\n v.\\n\\n HENDRICK HUDSON CENTRAL SCHOOL DISTRICT,\\n\\n Defendant‐Counter‐Claimant‐Appellant‐Cross‐Appellee. †\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of New York (Karas, J.)\\n No. 14‐3067\\n\\n\\n\\nBefore:\\n KEARSE, JACOBS, HALL, Circuit Judges.\\n\\n\\n† The Clerk of Court is requested to amend the caption to conform to the above.\\n\\fAppeal and cross‐appeal from the September 13, 2017 judgment of the United\\nStates District Court for the Southern District of New York (Karas, J.) incorporating\\nits November 23, 2016 opinion and order granting in part and denying in part the\\nparties’ cross‐motions for summary judgment and its July 18, 2017 opinion and\\norder granting Defendant’s motion for summary judgment and denying Plaintiffs’\\ncross‐motion. We hold that the district court properly deferred to the decision of\\nthe New York State Review Officer (“SRO”), which concluded that student W.E.\\nwas not denied a free and appropriate public education for the eighth‐grade school\\nyear and that Northwood School (“Northwood”) was not an appropriate\\nunilateral private school placement for the ninth‐grade school year, and thus\\naffirm the district court’s November 23, 2016 opinion and order to the extent it\\ngranted summary judgment to Defendant. Because the district court failed to\\naccord appropriate deference to the SRO’s conclusion that Northwood did not\\nprovide W.E. specially designed instruction so as to constitute an appropriate\\nprivate school placement for the tenth‐grade school year, we reverse the portion\\nof the district court’s November 23, 2016 opinion and order granting summary\\njudgment to Plaintiffs and vacate the award of tuition reimbursement to Plaintiffs\\nfor that school year. We also affirm the district court’s July 18, 2017 opinion and\\norder granting Defendant’s motion for summary judgment and vacating the\\naward of compensatory education for the eighth‐grade school year.\\n\\n AFFIRMED IN PART, REVERSED AND VACATED IN PART.\\n\\n\\n\\n DANIEL PETIGROW, (David H. Strong, on the\\n brief), Thomas, Drohan, Waxman, Petigrow\\n & Mayle, LLP, Hopewell Junction, NY, for\\n Defendant‐Counter‐Claimant‐Appellant‐Cross‐\\n Appellee.\\n\\n WILLIAM A. WALSH, New York, NY (Erica\\n M. Fitzgerald, Littman Krooks LLP, White\\n Plains, NY, on the brief), for Plaintiffs‐Counter‐\\n Defendants‐Appellees‐Cross‐Appellants.\\n\\n\\n\\n 2\\n\\f Catherine Merino Reisman, Ellen Saideman,\\n Selene Almazan‐Altobelli, Towson, MD, for\\n Amicus Curiae Council of Parent Attorneys and\\n Advocates, Inc.\\n\\n\\n\\nHALL, Circuit Judge:\\n\\n In the United States District Court for the Southern District of New York\\n\\n(Karas, J.), W.A. and M.S. (“the Parents”), individually and on behalf of their son,\\n\\nW.E., commenced two actions against the Hendrick Hudson Central School\\n\\nDistrict (“the District”) under the Individuals with Disabilities Education Act\\n\\n(“IDEA”), 20 U.S.C. § 1400 et seq. W.E. attended public school in the District and\\n\\nbegan suffering from conventional and abdominal migraines during middle\\n\\nschool, which caused him to miss over 100 days of eighth grade. The District\\n\\neventually classified W.E. as suffering from a disability under the IDEA’s “other\\n\\nhealth impairment” designation, but the Parents were not satisfied with the\\n\\nindividualized education program the District prepared for W.E.’s upcoming\\n\\nninth‐grade school year. The Parents removed W.E. from the District and\\n\\nenrolled him at Northwood School (“Northwood”), a private school in the\\n\\nAdirondacks, for his ninth‐ and tenth‐grade school years. While at Northwood\\n\\n\\n\\n\\n 3\\n\\fW.E.’s absences from school diminished significantly, and he experienced notable\\n\\nimprovement in his social and academic engagement.\\n\\n Following administrative hearings before a New York State Impartial\\n\\nHearing Officer (“IHO”) and cross‐appeals before a State Review Officer (“SRO”),\\n\\nthe Parents brought these two federal court complaints pursuant to Section 1415\\n\\nof the IDEA, 20 U.S.C. § 1415(i)(2)(A). In Case One, the Parents alleged that the\\n\\nDistrict violated W.E.’s right to a free and appropriate public education (“FAPE”)\\n\\nfor his eighth‐ and ninth‐grade school years (2010‐11 and 2011‐12) and challenged\\n\\nthe SRO’s ruling of January 31, 2014, which held that Northwood was not an\\n\\nappropriate placement for ninth grade. In Case Two, the Parents challenged the\\n\\nMarch 18, 2014 decision of the SRO and asserted that the District violated W.E.’s\\n\\nright to a FAPE for his tenth‐grade school year (2012‐13); they again sought tuition\\n\\nreimbursement for their unilateral placement of W.E. at Northwood for tenth\\n\\ngrade. The two actions were consolidated by the district court.\\n\\n On November 26, 2016, the district court affirmed the SRO’s ruling in Case\\n\\nOne in all respects but declined to defer to the SRO in Case Two, holding instead\\n\\nthat Northwood was an appropriate placement during tenth grade and ordering\\n\\nthat the District reimburse the Parents for W.E.’s tuition at Northwood for that\\n\\n\\n 4\\n\\fyear. See W.A. v. Hendrick Hudson Cent. Sch. Dist., 219 F. Supp. 3d 421 (S.D.N.Y.\\n\\n2016). It also granted the District’s motion to amend to add a counterclaim\\n\\nregarding costs awarded by the IHO in Case One. Id. at 484. On July 18, 2017,\\n\\nthe district court granted summary judgment to the District on the counterclaim,\\n\\nvacating the award of compensatory education in the form of counseling\\n\\nreimbursement for the eighth‐grade year based on its affirmance of the SRO’s\\n\\nruling that W.E. was not denied a FAPE for that academic year. 1 See W.A. v.\\n\\nHendrick Hudson Cent. Sch. Dist., No. 14‐CV‐3067 (KMK), 2017 WL 3066888\\n\\n(S.D.N.Y. July 18, 2017).\\n\\n The District appeals the portion of the district court’s November 23, 2016\\n\\ndecision and order awarding summary judgment to the Parents and ordering\\n\\nreimbursement of W.E.’s tuition for his private education at Northwood during\\n\\nW.E.’s tenth‐grade year. The Parents cross‐appeal the portion of the district\\n\\ncourt’s November 23, 2016 opinion and order awarding summary judgment to the\\n\\nDistrict and holding that the District did not violate its “Child Find” obligation\\n\\n\\n\\n\\n1 Under the IDEA, “compensatory education is an available option . . . to make up for denial of a\\nfree and appropriate public education.” P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed., 546 F.3d\\n111, 123 (2d Cir. 2008).\\n\\n\\n 5\\n\\funder the IDEA2 and thus did not deny W.E. a FAPE for the eighth‐grade year in\\n\\naccord with its statutory obligations, and further holding that Northwood was not\\n\\nan appropriate placement for W.E.’s ninth‐grade school year so as to entitle the\\n\\nParents to tuition reimbursement for W.E.’s private education during ninth grade.\\n\\nThe Parents also cross‐appeal the district court’s July 18, 2017 opinion and order\\n\\nawarding summary judgment to the District and vacating the award of\\n\\ncompensatory education for the eighth‐grade school year.\\n\\n Because we hold that the district court properly deferred to the SRO’s\\n\\nconclusions regarding the timeframe during which the District’s Child Find\\n\\nobligation was triggered and its ruling that Northwood failed to provide\\n\\nmeaningful counseling or specially designed instruction for W.E.’s ninth‐grade\\n\\nacademic year, we affirm the district court’s November 23, 2016 opinion and order\\n\\nas to Case One. However, because the district court did not defer to the similarly\\n\\nwell‐reasoned opinion of the SRO which held that Northwood failed to provide\\n\\nspecially designed instruction for the tenth‐grade academic year in spite of W.E.’s\\n\\nprogress in the private school placement, we reverse the district court’s November\\n\\n\\n\\n\\n2 The IDEA’s “Child Find” obligation is explained in the context of our discussion of the statutory\\nframework, see infra, slip op. pp. 7–8.\\n\\n 6\\n\\f23, 2016 opinion and order with respect to Case Two and vacate the award of\\n\\ntuition reimbursement for the tenth‐grade academic year. We affirm the district\\n\\ncourt’s July 18, 2017 opinion and order granting the District’s motion for summary\\n\\njudgment and vacating the award of compensatory education for the eighth‐grade\\n\\nschool year.\\n\\n BACKGROUND\\n\\n I. Statutory Framework\\n\\n This case arises under the IDEA, 20 U.S.C. § 1400 et seq. The IDEA was\\n\\ndesigned, inter alia, to protect the rights of children with disabilities as well as the\\n\\nrights of their parents and “to ensure that all children with disabilities have\\n\\navailable to them a free appropriate public education [“FAPE”] that emphasizes\\n\\nspecial education and related services designed to meet their unique needs and\\n\\nprepare them for further education, employment, and independent living.” Id. §\\n\\n1400(d)(1)(A). The IDEA enforces a “Child Find” obligation which “requires\\n\\neach State to have policies and procedures to ensure that all children with\\n\\ndisabilities are identified and evaluated for special education and related\\n\\nservices.” Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 749 (2d Cir.), cert. denied,\\n\\n139 S. Ct. 322 (2018). A school district must conduct an evaluation of a child\\n\\n\\n 7\\n\\fsuspected of suffering a disability “within a reasonable time” after it receives\\n\\n“notice of a likely disability.” Id. at 750.\\n\\n The IDEA also requires that school districts create an individualized\\n\\neducation program (“IEP”) for each qualifying child. See R.E. v. N.Y.C. Dep’t of\\n\\nEduc., 694 F.3d 167, 175 (2d Cir. 2012) (citing 20 U.S.C. § 1414(d)). “The IEP is the\\n\\ncenterpiece of the IDEA’s education delivery system for disabled children” and\\n\\nserves as the means by which the State delivers a disabled child’s FAPE. Mr. P,\\n\\n885 F.3d at 741 (internal quotation marks and brackets omitted). It constitutes “a\\n\\nwritten statement that sets out the child’s present educational performance,\\n\\nestablishes annual and short‐term objectives for improvements in that\\n\\nperformance, and describes the specially designed instruction and services that\\n\\nwill enable the child to meet those objectives.” R.E., 694 F.3d at 175 (quoting D.D.\\n\\nex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2d Cir. 2006)). In New\\n\\nYork, local Committees on Special Education (“CSEs”) are responsible for\\n\\ndeveloping IEPs and are tasked with identifying an educational program tailored\\n\\nto the student’s particular needs and achievement levels. See id.\\n\\n Parents who believe a child has been denied a FAPE may enroll the child in\\n\\na private school at their own financial risk and seek retroactive reimbursement\\n\\n\\n 8\\n\\ffrom the school district for the cost of the private school. A.C. ex rel. M.C. v. Bd.\\n\\nof Educ. of The Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009). In New\\n\\nYork, such claims are first adjudicated before an IHO and may then be appealed\\n\\nto the SRO. See R.E., 694 F.3d at 175 (citing N.Y. Educ. Law §§ 4404(1)‐(2)). The\\n\\nIDEA provides for judicial review of the SRO’s decision by a federal district court.\\n\\nId. (citing 20 U.S.C. § 1415(i)(2)(A)).\\n\\n II. Factual Background\\n\\n W.E. attended public school in the District through the eighth grade. He\\n\\nperformed well and was engaged in several extracurricular programs until the\\n\\nsixth grade, when he developed severe internal pain that led to an emergency\\n\\nappendectomy and caused him to miss at least 26 days of school. W.E. was\\n\\ndiagnosed with abdominal migraines which persisted throughout seventh grade\\n\\nand which were increasingly compounded by conventional migraines, causing\\n\\nhim to miss at least as many school days as he had the prior year. His headaches\\n\\ncontinued to worsen through the spring of seventh grade when W.E.’s mother,\\n\\n\\n\\n\\n 9\\n\\fM.S., referred W.E. to the District’s Section 504 Committee 3 and requested\\n\\ntutoring, which the District approved.\\n\\n As part of the Section 504 process, Dr. Richard Brodsky, the school\\n\\npsychologist, performed a psycho‐educational evaluation of W.E. That\\n\\nevaluation yielded above‐average scores on a cognitive test measuring W.E.’s\\n\\n“General Intellectual Ability.” W.A., 219 F. Supp. 3d at 430. Except for math\\n\\nfluency, in which W.E. fell into the “low average” range, the evaluation also\\n\\nyielded average to advanced scores on a number of subtests targeted to measure\\n\\nacademic achievement. Id. Dr. Brodsky also administered the Behavior\\n\\nAssessment System for Children‐Second Edition (“BASC‐2”) to W.E. and to two\\n\\nof his teachers on W.E.’s behalf. That assessment generated “at‐risk” scores in\\n\\nthe areas designated “Relations to Parents” and “Attitudes Towards School.” Id.\\n\\nOne of W.E.’s teachers also produced a “clinically significant score” reflecting “a\\n\\nhigh level of maladjustment” as a result of W.E.’s somatization. Id. In June\\n\\n2010, the District’s Section 504 Committee met and found W.E. eligible for an\\n\\naccommodation based upon his migraine disability. The accommodation\\n\\n\\n\\n3 As the district court explained, “[a] Section 504 committee is so named as a reference to § 504 of\\nthe Rehabilitation Act,” 29 U.S.C. § 794. W.A., 219 F. Supp. 3d at 429 n.1.\\n\\n\\n 10\\n\\fconsisted of extra time to complete assignments, nursing services as needed, and\\n\\naccess to class notes and home tutoring.\\n\\n W.E.’s eighth‐grade year was increasingly fraught, with his migraines\\n\\ncausing him to miss a total of more than 100 school days. Although he did well\\n\\nin some classes, he struggled in others, missed some state exams, and became more\\n\\nsocially isolated. W.E. received some of the tutoring to which he was entitled\\n\\nunder his Section 504 plan, but the Parents were not satisfied with the assigned\\n\\ntutor, and efforts to find a replacement interrupted the tutoring before it was\\n\\nrecommenced. In December 2010, M.S. notified the District that she observed her\\n\\nson to be in “crisis” and requested certain interventions; she also contacted Dr.\\n\\nBrodsky, who recommended private relaxation counseling for W.E. Id. at 433.\\n\\nPer M.S.’s request, the District scheduled a meeting for January 5, 2011, to review\\n\\nW.E.’s Section 504 plan, but M.S. later emailed Caroline Almeida, the District’s\\n\\nAssistant Director of Pupil Personnel, to suggest canceling the meeting in light of\\n\\nW.E.’s progress over the winter break and M.S.’s understanding that he “had all\\n\\nthe program modifications in place.” Id. at 434 (brackets omitted).\\n\\n In mid‐January 2011, the Parents began the process of looking into a private\\n\\nschool for W.E.’s upcoming ninth‐grade year. M.S. and W.E. visited Northwood,\\n\\n\\n 11\\n\\fa boarding school in the Adirondacks, in late February 2011. The school is a self‐\\n\\ndescribed small college preparatory school that strives to incorporate the values of\\n\\nintegrity, compassion, responsibility, courage, and respect into its pedagogy and\\n\\noperations. During this initial visit W.E. grabbed M.S.’s coat and asked, “Can I\\n\\ngo here?” Id. at 438. W.E. was admitted, and the Parents paid a deposit and\\n\\nsigned an enrollment contract in March 2011. Later that spring M.S. and W.E.\\n\\nvisited Northwood again with W.A. and confirmed W.E.’s intent to attend in the\\n\\nfall.\\n\\n Meanwhile, throughout the spring of W.E.’s eighth‐grade year, discussions\\n\\nwith the District continued. By April 2011 the Parents had referred W.E. to the\\n\\nlocal CSE to determine his eligibility for special education services under the\\n\\nIDEA’s “other health impairment” (“OHI”) classification; they also requested an\\n\\nemergency Section 504 meeting, which Ms. Almeida promptly scheduled. At\\n\\nthat meeting of April 15, 2011, the Section 504 Committee recommended\\n\\ncounseling. Dr. Brodsky suggested it should take place outdoors. The Section\\n\\n504 Committee also recommended that a psychiatric evaluation be conducted in\\n\\npreparation for the upcoming CSE meeting. An evaluation was scheduled with\\n\\na psychiatrist named Dr. Hahn. Dr. Hahn prepared a report based on his\\n\\n\\n 12\\n\\fconsultation with M.S. but was not able to evaluate W.E. due to his migraines\\n\\nand/or anxiety. His report recommended a holistic approach to helping W.E.\\n\\nlearn how to cope with his stress, including bio‐feedback and relaxation methods,\\n\\nmindfulness training, play therapy, and access to an outdoor adventure‐based\\n\\nprogram.\\n\\n The CSE meeting was held on May 25, 2011, without a psychiatric\\n\\nevaluation. The Parents took issue with a number of aspects of that meeting,\\n\\nincluding the District’s failure to include a parent on the CSE. In advance of a\\n\\nfollow‐up CSE meeting on August 26, 2011, the Parents submitted letters from\\n\\nthree different clinicians who recommended a smaller school environment for\\n\\nW.E. or a non‐mainstream placement. The CSE ultimately classified W.E. as a\\n\\nstudent with a disability under the OHI designation. A draft IEP recommended\\n\\ntwice‐weekly individual counseling, program accommodations consisting of\\n\\naccess to class notes, nursing services, and extra time for completing assignments,\\n\\nand classes with a student‐to‐staff ratio of 8:1:1.\\n\\n Kathleen Coughlin, the District’s director of Pupil Personnel Services, later\\n\\ntestified that she discussed two programs at the August 2011 CSE meeting that\\n\\nmight meet W.E.’s needs for his ninth‐grade year: the BOCES (Board of\\n\\n\\n 13\\n\\fCooperative Educational Services) program in Southern Westchester and the one\\n\\nin Putnam Northern Westchester. According to Ms. Coughlin, she explained to\\n\\nW.E.’s Parents that neither option could be recommended as a final placement\\n\\nuntil the referral process was complete but that the CSE could offer interim home\\n\\ninstruction pending completion of an expedited referral process. The Parents\\n\\nultimately concluded that BOCES was not an appropriate placement for W.E.\\n\\nThey formally withdrew W.E. from the District by letter dated August 30, 2011.4\\n\\n W.E. began private school at Northwood at the start of his ninth‐grade\\n\\nschool year. At Northwood the student‐teacher ratio in W.E.’s classes was below\\n\\n8:1 and W.E. was assigned a nurse as a faculty advisor; another nurse lived on his\\n\\ndormitory floor. Some classes were structured around a large oval table so as to\\n\\nrequire participation from all students, and the school incorporated organized\\n\\nstudy periods as well as outdoor activities into its educational structure.\\n\\nNorthwood ensured that W.E.’s teachers were aware of his accommodation plan,\\n\\nwhich required that W.E. receive additional time for in‐class assignments,\\n\\npreferential seating, graphic organizers or guided notes to facilitate verbal\\n\\n\\n\\n4In November 2011, the Parents visited the programs recommended by the CSE and learned that\\nboth had a student‐to‐teacher ratio of 12:1:1 as opposed to the 8:1:1 ratio proposed in W.E.’s draft\\nIEP.\\n\\n 14\\n\\flectures, and regular sessions with the school counselor. W.E. earned passing\\n\\ngrades in all of his ninth‐grade classes and, more notably, missed only nine days\\n\\nof school due to his migraines. He also grew more socially adjusted, received\\n\\npositive feedback from teachers, and tapered off his mood‐stabilizing medications.\\n\\nDr. Williams later testified that Northwood “appeared to be highly appropriate\\n\\nfor W.E. as reflected in his dramatic improvement in headache frequency that had\\n\\npersisted for the first time in previous years beyond the summer well into the fall\\n\\nterm and its conclusion.” Id. at 442 (brackets omitted). Some of W.E.’s teachers,\\n\\nhowever, indicated that he struggled with organization skills, preparing for class,\\n\\nand handing in assignments on time and that his grades were below his potential.\\n\\nOne teacher cited W.E.’s poor behavior in an incident in which she needed to\\n\\nremove him from class due to rude remarks he made to another student. In\\n\\nFebruary 2012, Northwood accepted W.E.’s re‐enrollment for his tenth‐grade year.\\n\\n In April 2012, the District began formulating a program recommendation\\n\\nfor W.E.’s tenth‐grade year despite W.E.’s attendance in private school. Reports\\n\\nprovided by W.E.’s teachers at Northwood noted his lack of organization, missing\\n\\nclass assignments, and stress‐triggered migraines alongside his strong intellectual\\n\\nabilities. A February 2012 BASC‐2 test showed significant improvement in\\n\\n\\n 15\\n\\fW.E.’s attitude toward school, but the BASC‐2 completed by one of W.E.’s teachers\\n\\nat Northwood rated W.E. “as clinically significant for somatization and at risk for\\n\\nsocial skills.” Id. at 443. The CSE held W.E.’s annual review meeting on June\\n\\n14, 2012. Dr. Williams sent a letter to the CSE in advance of that meeting\\n\\ndescribing W.E.’s “remarkable” progress, which he attributed in part to his\\n\\nplacement at Northwood; Dr. Williams recommended that W.E. not undergo any\\n\\nchange of placement for the upcoming year. Id. At the meeting the Parents also\\n\\nshared their view that W.E. was experiencing fewer migraines, earning average\\n\\ngrades, and engaging in various outdoor activities at Northwood. The IEP that\\n\\nwas finalized for W.E. recommended a student‐teacher ratio of 8:1:1 and\\n\\nparticipation in Southern Westchester BOCES at Irvington High School’s TSP\\n\\n(Therapeutic Support‐Fragile Program). The Parents expressed concerns with\\n\\nthis prospective placement to District officials during a subsequent CSE meeting\\n\\nin August 2012. They rejected the IEP by letter dated September 20, 2012.\\n\\n W.E.’s accommodation plan for his tenth‐grade year at Northwood included\\n\\nthe four previous accommodations from his ninth‐grade year as well as three new\\n\\naccommodations: use of an iPad in class, a supervised study hall, and access to a\\n\\nschool nurse. In addition to continuing what was essentially informal counseling\\n\\n\\n 16\\n\\ffrom the prior year with Donald Mellor, an English teacher and Northwood\\n\\ncounselor, Dr. Williams advocated for “a more systematic psychotherapy\\n\\nprogram,” and in the spring of his tenth‐grade year W.E. began meeting weekly\\n\\nwith a private social worker. Id. at 446–47. Reports from W.E.’s teachers\\n\\nthroughout his tenth‐grade year were again inconsistent, containing a mixture of\\n\\npraise for his academic achievement and criticism of his lack of organization,\\n\\nuneven performance, intermittent lack of engagement, and occasionally\\n\\ninappropriate behavior. W.E. was also able to play soccer and participate in an\\n\\noutdoor program in Yellowstone and seemed to grow in his social comfort and\\n\\nconfidence, though he experienced an especially severe migraine in May 2013.\\n\\nSeveral clinicians later testified that Northwood was appropriate for W.E.’s\\n\\nemotional and mental health needs.\\n\\n III. Administrative Proceedings\\n\\n A. Case One: The Eighth‐ and Ninth‐Grade School Years\\n\\n i. IHO Hearing and Decision\\n\\n In November 2011, W.E.’s Parents requested an impartial hearing, asserting\\n\\nthat the District denied W.E. a FAPE for W.E.’s eighth‐ and ninth‐grade academic\\n\\nyears. The Parents sought reimbursement for W.E.’s tuition at Northwood for\\n\\n\\n 17\\n\\fninth grade and compensatory counseling services for the eighth‐grade school\\n\\nyear. A hearing was conducted before an IHO over nine days between February\\n\\n1 and April 2, 2012.\\n\\n On May 30, 2012, the IHO issued a 37‐page decision in which it concluded\\n\\nthat the District violated its Child Find obligation and failed to provide W.E. with\\n\\na FAPE for W.E.’s eighth‐grade year. According to the IHO, the District’s Child\\n\\nFind obligation was triggered by January 3 of the eighth‐grade school year, by\\n\\nwhich time W.E. had exhibited a pattern of missing an increasingly high number\\n\\nof school days for health reasons and numerous teachers had reported being\\n\\nunable to issue grades for W.E. due to missing assignments. The IHO also noted\\n\\nM.S.’s outreach to Dr. Brodsky during December 2010, which the IHO found also\\n\\nshould have put the District on notice even in the face of M.S.’s sometimes\\n\\nconflicting signals about the status of her son’s wellbeing. Additionally, W.E.’s\\n\\nclinically significant score regarding somatization on the BASC‐2 from the\\n\\nprevious spring had already triggered the accommodations that were developed\\n\\nin W.E.’s June 2010 Section 504 plan, and the IHO noted that by January 3, 2011, it\\n\\nshould have been apparent to the District that this earlier plan was not fulfilling\\n\\nW.E.’s needs. The IHO further concluded that had the CSE timely convened, the\\n\\n\\n 18\\n\\frecord evidence would have supported a finding that W.E. satisfied the criteria for\\n\\nthe IDEA’s OHI designation.\\n\\n The IHO ordered the District to reimburse W.E.’s Parents for therapy\\n\\nsessions that provided Dr. Williams the diagnostic information used in preparing\\n\\nhis August 2011 evaluation report and which the District relied upon in\\n\\ndeveloping W.E.’s IEP. It also ordered reimbursement for five therapy sessions\\n\\nprovided by Dr. Andrew Robins during W.E.’s eighth‐grade year and payment for\\n\\nan additional fifteen hours of counseling. The IHO, however, denied the Parents’\\n\\nrequest for 200 hours of compensatory education in the form of tutoring, due to\\n\\ntheir failure to demonstrate that W.E. was in need of academic remediation.\\n\\n As for W.E.’s ninth‐grade year, the IHO concluded that the District failed to\\n\\nprovide W.E. a FAPE by neglecting to complete timely its evaluation of W.E. and\\n\\narrange for an appropriate placement for that school year. The IHO rejected the\\n\\nDistrict’s argument that the Parents’ failure to produce W.E. for a psychiatric\\n\\nevaluation excused its failure to evaluate W.E. within the 60‐days required by\\n\\napplicable State regulations, reasoning that “the District had the affirmative\\n\\nobligation to get the evaluation conducted even if it meant sending a psychiatrist\\n\\n\\n\\n\\n 19\\n\\fto the student’s home” if it thought the evaluation necessary. 5 Special\\n\\nSupplemental Appendix (“Sp. Supp. App.”) 28.\\n\\n Even though the IHO found that the District denied W.E. a FAPE, it ruled\\n\\nthat the Parents were not entitled to tuition reimbursement because they did not\\n\\nmeet their burden of proving that Northwood was an appropriate placement for\\n\\nW.E. After reviewing in detail the relevant evidence presented by the Parents,\\n\\nincluding testimony offered by Dr. Williams, Dr. Robins, and Mr. Mellor, the IHO\\n\\nconcluded that there was no evidence that Northwood was tailored to addressing\\n\\nany of W.E.’s psychological or emotional issues, which the weight of the testimony\\n\\nindicated were the underlying triggers of his migraines. The IHO noted that\\n\\nNorthwood does not have a psychologist or psychiatrist on staff and that the only\\n\\ncounseling W.E. received at Northwood was in the form of informal check‐ins\\n\\ninitiated by Mr. Mellor. The IHO also found that while W.E. achieved “average\\n\\nto excellent grades,” he continued to exhibit struggles with organization and study\\n\\nskills, which Northwood did not work with him to remedy. Id. at 37. As for\\n\\n\\n\\n\\n5 The IHO rejected the Parents’ argument that the District’s failure to include a parent member\\non the CSE deprived W.E. of a FAPE but found that the District’s failure to include a special\\neducation teacher as well as a general education teacher who was familiar with W.E. on the CSE\\ncontributed to the District’s violation of the IDEA.\\n\\n 20\\n\\fequitable considerations, while not required to weigh them in light of its\\n\\nconclusion that the District’s reimbursement obligation was not triggered, the IHO\\n\\nnonetheless noted that W.E.’s Parents fully cooperated with the District and did\\n\\nnot impede the CSE process. The IHO rejected the District’s argument that the\\n\\nParents never intended to send W.E. anywhere but Northwood, finding instead\\n\\nthat they were open to the District’s recommendations and “lived with very real\\n\\nuncertainty about whether” W.E. would be able to attend Northwood as they had\\n\\nhoped. Id.\\n\\n ii. SRO Appeal and Decision\\n\\n The Parents appealed the IHO’s denial of reimbursement and request for\\n\\ncompensatory education services to the SRO and the District cross‐appealed the\\n\\nIHO’s finding that the District denied W.E. a FAPE for the eighth‐ and ninth‐grade\\n\\nschool years. The SRO ruled that, contrary to the IHO’s finding, the District did\\n\\nnot have reason to suspect that W.E. had a disability requiring special education\\n\\nprior to April 2011 due to W.E.’s overall positive educational progress with the\\n\\naccommodations the District provided him in the Section 504 plan developed in\\n\\nJune 2010. In reaching this conclusion, the SRO cited frequent communications\\n\\nbetween W.E.’s Parents and the District’s personnel between winter 2010 and\\n\\n\\n 21\\n\\fspring 2011 evidencing the District’s commitment to fulfilling W.E.’s June 2010\\n\\nSection 504 plan, M.S.’s incidences of retracting earlier requests for intervention in\\n\\nthe face of W.E.’s improvement and in the interest of maintaining “normalcy” for\\n\\nher son, W.E.’s high level of academic achievement as reflected on his eighth‐grade\\n\\nreport card and state exams, and positive feedback from teachers regarding W.E.’s\\n\\nintellectual abilities, behavior, and attitudes. Id. at 69–72. The SRO also found\\n\\nthat W.E.’s BASC‐2 results from the previous spring were not enough to put the\\n\\nDistrict on notice given that the report did not cite any history of academic\\n\\ndifficulties or current interventions and Dr. Brodsky’s report otherwise credited\\n\\nW.E. with appropriate to above‐average levels of attention, intelligence,\\n\\nconceptual thinking, language, and academic skills. The SRO accordingly\\n\\nreversed the IHO’s finding that the District violated its Child Find obligation for\\n\\nW.E.’s eighth‐grade school year. And it affirmed the IHO’s denial of the Parents’\\n\\nrequest for 200 hours of compensatory home instruction while declining to disturb\\n\\nthe award of counseling reimbursement based on its understanding that the\\n\\nDistrict did not appeal that aspect of the IHO’s ruling.\\n\\n As for W.E.’s ninth‐grade year, the SRO concluded that the District violated\\n\\nthe IDEA by failing to have a finalized IEP in place at the start of ninth grade; it\\n\\n\\n 22\\n\\ftherefore affirmed the IHO’s ruling that W.E. was denied a FAPE for that year.\\n\\nThe SRO next affirmed the IHO’s finding that Northwood was not an appropriate\\n\\nplacement for W.E. entitling the Parents to tuition reimbursement. After\\n\\nreviewing the relevant evidence, the SRO concluded that while W.E.’s social,\\n\\nemotional, and academic functioning improved at Northwood:\\n\\n the hearing record lacks evidence demonstrating that [Northwood]\\n provided instruction that was designed to address the student’s tendencies\\n to develop physical symptoms and exhibit school avoidance when under\\n stress, or his need to develop coping skills to manage stress related to\\n academics and social interactions, and to improve his organizational/study\\n skills related to academics, and, that the instruction that the student received\\n during the 2011‐12 school year was, in fact, available to all students enrolled\\n at [Northwood]. The hearing record fully supports the IHO’s\\n determination that the parents presented no evidence that the student’s\\n underlying emotional issues, organizational issues, or study skills were\\n addressed by [Northwood].\\n\\nId. at 84–85. In light of its conclusion the SRO declined to consider whether the\\n\\nequities supported the Parents’ claim.\\n\\n B. Case Two: The Tenth‐Grade School Year\\n\\n i. IHO Hearing and Decision\\n\\n The Parents filed their Case Two complaint notice in April 2013, alleging\\n\\nthat the District failed to provide W.E. a FAPE for W.E.’s tenth‐grade school year\\n\\nand seeking tuition reimbursement for that year at Northwood. Following a six‐\\n\\n\\n 23\\n\\fday hearing, the IHO issued a decision on December 17, 2013, in which it\\n\\nconcluded that the District’s IEP process failed to account for W.E.’s extraordinary\\n\\ncharacteristics and that the resultant IEP was not responsive or appropriately\\n\\ntailored to W.E.’s needs, thus denying W.E. a FAPE during his tenth‐grade year.\\n\\nIn so ruling, the IHO separately addressed what it identified as the District’s\\n\\nalleged procedural and substantive violations of the IDEA. In the former\\n\\ncategory the IHO found that by recommending both a student‐teacher ratio of 8:1\\n\\nand mainstream placement in Math, English, and Science (which have a student‐\\n\\nteacher ratio of 24:1), W.E.’s IEP contained an internal inconsistency, which the\\n\\nDistrict never attempted to reconcile. The IHO declined to reach the alleged\\n\\nsubstantive violations in light of its conclusion that the District’s IEP constituted a\\n\\nprocedural violation that denied W.E. a FAPE but noted W.E.’s “significant social\\n\\nand educational progress in the prior school year at” Northwood. Supplemental\\n\\nAppendix (“Supp. App.”) 126.\\n\\n The IHO next ruled that by “providing the Student with educational\\n\\ninstruction specially designed to meet his needs, including certain neccesary[sic]\\n\\nsupport services,” Northwood was an appropriate placement for W.E. Id. at 127.\\n\\nThe IHO noted that Northwood’s small class size comported with W.E.’s IEP, and\\n\\n\\n 24\\n\\fthat Northwood assisted W.E. with his need for organization during a free period,\\n\\nin addition to providing two supervised study halls and a nightly study session\\n\\nmonitored by a faculty member. It also found that Northwood’s residential\\n\\nenvironment combined with its mountain location and integration of outdoor,\\n\\nstress‐relieving activities rendered “it uniquely suited to address the Student’s\\n\\nmigraines.” Id. at 129. The IHO additionally emphasized Northwood’s\\n\\ndevelopment of an accommodation plan that was tailored to W.E.’s needs, the\\n\\ninformal counseling sessions the school provided W.E. on a regular basis, and\\n\\nNorthwood’s ability to deliver 24‐hour‐a‐day nursing services. It ruled\\n\\naccordingly that the Parents were entitled to tuition reimbursement.\\n\\n\\n\\n\\n ii. SRO Appeal and Decision\\n\\n On March 18, 2014, the SRO issued a decision in which it agreed with the\\n\\nIHO’s findings regarding the internal inconsistencies in W.E.’s IEP and thus\\n\\naffirmed the IHO’s ruling that W.E. was denied a FAPE. The SRO, however,\\n\\nreversed the portion of the IHO’s decision ruling that Northwood was an\\n\\nappropriate placement for W.E. The SRO reviewed the relevant testimony and\\n\\n\\n 25\\n\\fevidence in detail and found that it was “without question that during the 2012‐\\n\\n13 school year, the student exhibited progress in the sense that except when\\n\\nexperiencing a migraine, he attended classes consistently, achieved grades in the\\n\\n‘A‐’ to ‘C+’ range, and demonstrated increased maturity and ability to socially\\n\\ninteract with peers.” Id. at 109. Despite the accommodations and amenities\\n\\navailable at Northwood, the SRO concluded that:\\n\\n the hearing record does not contain evidence that [Northwood] provided\\n the student with specially designed instruction to meet his ongoing need to\\n develop insight and understanding into what triggered his stress and\\n anxiety, and positive coping skills to address stress and decrease anxiety;\\n difficulties that the hearing record showed not only contributed to the\\n student’s tendency to develop migraine headaches, but also to exhibit\\n organizational deficits and avoidance behaviors.\\n\\nId. The SRO also noted that while W.E. appeared to have benefitted from his\\n\\ninformal counseling with Mr. Mellor, the hearing record did not contain any\\n\\ncounseling notes, progress reports, or other records indicating that the counseling\\n\\nwas addressing W.E.’s “need to develop insight and coping skills,” and that while\\n\\nW.E. eventually participated in more systematic counseling with a private social\\n\\nworker later in the school year, there was similarly no evidence showing how this\\n\\nprivate counseling was tailored to W.E.’s needs. Id. And even though W.E.\\n\\nachieved satisfactory grades throughout his tenth‐grade year, the SRO observed\\n\\n\\n 26\\n\\fthat “he continued to exhibit organizational and motivational/behavioral\\n\\ndifficulties at times in his class.” Id. at 110. The SRO found that Northwood\\n\\noffered W.E. accommodations that were available to virtually all other students,\\n\\nbut that the record lacked evidence showing how Northwood “provided specially\\n\\ndesigned instruction to address the student’s organizational difficulties.” Id.\\n\\nThe SRO ruled accordingly that the Parents failed to carry their burden of\\n\\ndemonstrating that Northwood was an appropriate placement.\\n\\n IV. District Court Proceedings\\n\\n The Parents sought judicial review of each of the SRO’s decisions. Their\\n\\nfirst federal court complaint, filed on April 30, 2014, challenged the SRO’s decision\\n\\nin Case One and sought reimbursement of home instruction and counseling costs\\n\\nfor W.E.’s eighth‐grade school year and tuition reimbursement for their unilateral\\n\\nplacement of W.E. at Northwood for the ninth‐grade school year. The second\\n\\ncomplaint, filed on June 13, 2014, challenged the SRO’s decision in Case Two and\\n\\nsought tuition reimbursement for W.E.’s placement at Northwood for the tenth‐\\n\\ngrade academic year. The two cases were consolidated in September 2015, and\\n\\nthe parties filed cross‐motions for summary judgment.\\n\\n A. Case One\\n\\n\\n 27\\n\\f With respect to W.E.’s eighth‐grade year, the district court found “no reason\\n\\nto disturb the SRO’s reasoned analysis,” concluding that the District did not deny\\n\\nW.E. a FAPE. W.A., 219 F. Supp. 3d at 458. While the district court\\n\\nacknowledged the Parents’ emphasis on W.E.’s clinically significant somatization\\n\\nscores from seventh grade and incomplete grades from his eighth‐grade second‐\\n\\nquarter, among other signals that the Parents alleged should have put the District\\n\\non notice of W.E.’s disability, the district court noted that “[t]he crux of the SRO’s\\n\\ndecision, however, was not so much that there was no basis to suspect that W.E.\\n\\nmay be disabled, but that there was no reason to suspect that special education was\\n\\nneeded to remedy that disability.” Id. at 457. Given that the SRO thoroughly\\n\\nconsidered W.E.’s progress in the general education curriculum with the\\n\\naccommodations provided in his Section 504 plan, as well as his performance on\\n\\nstandardized tests and psychological evaluations and feedback from his teachers,\\n\\nand given that the SRO weighed testimony from M.S. and from W.E.’s counselors,\\n\\nneurologist and a private psychologist, the court found the SRO’s conclusions\\n\\nsupported by the record. In this regard the district court found that “the SRO’s\\n\\ndecision stood on more solid conceptual footing than the IHO’s.” Id. at 459.\\n\\n\\n\\n\\n 28\\n\\f As for the issue of tuition reimbursement, the district court noted as an\\n\\ninitial matter that the District did not challenge the SRO’s conclusion in each case\\n\\nthat W.E. was denied a FAPE for his ninth‐ and tenth‐grade years and that it would\\n\\ntherefore skip directly to the reimbursement analysis. The court deferred to the\\n\\nSRO’s conclusion in Case One that Northwood was not an appropriate placement\\n\\nfor W.E.’s ninth‐grade year but held that the SRO’s conclusion in Case Two was\\n\\nneither well‐reasoned nor persuasive. While the records in both cases would\\n\\nappear relevant to the common question of whether Northwood was an\\n\\nappropriate placement, and while the same SRO presided over both\\n\\nadministrative appeals, the district court noted that it would attempt to analyze\\n\\nthe issue separately in the context of each of the two school years, “[g]iven the\\n\\nmaterial differences between the SRO’s two opinions in terms of quality and\\n\\npersuasiveness.” Id. at 463.\\n\\n The district court found the Parents’ challenges to the IHO and SRO\\n\\ndecisions unconvincing in Case One, noting that both the IHO and SRO took\\n\\nadequate stock of the available evidence and that any reputed flaws in the\\n\\nopinions were ultimately insufficient to strip them of the deference to which they\\n\\nwere otherwise entitled. The district court also independently assessed the\\n\\n\\n 29\\n\\fParents’ arguments regarding Northwood’s appropriateness as a placement for\\n\\nW.E.’s ninth‐grade year and concluded that the substantial improvement in W.E.’s\\n\\nattendance record could not alone satisfy the Parents’ burden. W.E.’s grades and\\n\\npositive response to the Northwood culture did not lead the district court to\\n\\nquestion the IHO’s and SRO’s reasoning. Nor did the district court think it was\\n\\nin a position to question the state officers’ determination that W.E.’s counseling\\n\\nwas not tailored to his needs. The district court did note that it found the SRO’s\\n\\nreasoning regarding Northwood’s smaller residential setting unpersuasive given\\n\\nthe evidence that W.E. was in need of a smaller school environment, but that this\\n\\nfactor was not sufficient to undermine the SRO’s opinion. The court reached a\\n\\nsimilar conclusion regarding the SRO’s finding that Northwood’s accommodation\\n\\nplan was not responsive to W.E.’s needs, and noted that the fact that other\\n\\nNorthwood students received the same accommodations did not speak to their\\n\\nefficacy or appropriateness for W.E. Despite the flaws that the district court\\n\\nidentified in the SRO’s opinion, the court agreed that the Parents did not satisfy\\n\\ntheir burden of showing that Northwood was an appropriate placement,\\n\\nespecially in light of the SRO’s analysis regarding Northwood’s failure to offer\\n\\n\\n\\n\\n 30\\n\\fmeaningful counseling or vehicles for addressing W.E.’s organizational and stress‐\\n\\nrelated issues.\\n\\n B. Case Two\\n\\n Although the same SRO presided over both appeals, the district court found\\n\\nits reasoning deficient in Case Two. It noted that “although the SRO provided a\\n\\nthorough recitation of the facts on the record, it dedicated barely two pages to\\n\\nactually analyzing whether Northwood was an appropriate placement.” Id. at\\n\\n470. The district court found that the SRO placed undue emphasis on W.E.’s need\\n\\nto cope with stress at the expense of W.E.’s other needs relating to his\\n\\norganizational skills and study habits and a supportive educational environment.\\n\\nWhile the court did not agree with all of the IHO’s reasoning, it found the IHO’s\\n\\nanalysis more compelling and accordingly considered its opinion in weighing the\\n\\nappropriateness of Northwood as a placement for W.E.’s tenth‐grade year.\\n\\n The district court addressed each of the Parents’ arguments, first finding\\n\\nthat the SRO’s conclusions regarding W.E.’s mixed academic progress were\\n\\nlargely consistent with the record but that this factor should nonetheless slightly\\n\\nfavor reimbursement. The district court observed no error in the SRO’s\\n\\nconclusion that W.E.’s participation in outdoor activities was not specially\\n\\n\\n 31\\n\\fdesigned for his needs but found that the SRO failed to accord appropriate weight\\n\\nto the significant improvement in W.E.’s attendance, noting that this improvement\\n\\n“was attributable to Northwood’s boarding feature.” Id. at 472. As for\\n\\nNorthwood’s accommodations, the district court was particularly concerned by\\n\\nthe SRO’s failure to consider W.E.’s use of an iPad, which testimony before the\\n\\nIHO had indicated “was a ‘godsend’ for W.E.” and helped with his organizational\\n\\ndifficulties. Id. at 473. The court noted that the fact that the iPad was generally\\n\\navailable to all Northwood students did not change its analysis, as “the Second\\n\\nCircuit has never indicated that a resource available to all students cannot be\\n\\nconsidered for purposes of determining appropriate placement if that resource\\n\\naddressed a specific need of the child.” Id. Although the district court noted\\n\\nthat the record contained little evidence of the effect of a second study hall\\n\\nprovided to W.E., it found the SRO’s failure to even mention the addition of a\\n\\nstudy hall concerning. As for counseling, the district court agreed with the SRO\\n\\nthat the informal counseling provided by Mr. Mellor was not meaningfully or\\n\\nappropriately tailored to W.E.’s needs. And the court found that Northwood’s\\n\\n24‐hour nursing support weighed only slightly in favor of reimbursement given\\n\\nthe minimal record evidence showing specific benefits that W.E. received.\\n\\n\\n 32\\n\\fFinally, the district court held that Northwood’s small class size—which satisfied\\n\\nW.E.’s IEP—favored reimbursement, finding again that the fact that such a feature\\n\\nis generally available does not undermine its appropriateness in addressing a\\n\\nparticular student’s needs.\\n\\n In short, the district court noted that while there was “no question the SRO\\n\\nconsidered all of the evidence on the record,” it found its discussion of\\n\\nNorthwood’s appropriateness truncated and inadequate, specifically in failing to\\n\\nconsider Northwood’s small class size, residential component, 24‐hour nursing,\\n\\nand the impact of its accommodations on W.E.’s specific needs. Id. at 476. The\\n\\ncourt again noted that it reached a differing conclusion regarding the SRO’s\\n\\nopinion in Case Two due to its more conclusory and unpersuasive nature, but also\\n\\nbecause the record for the tenth‐grade year was “more robust and offers more\\n\\ninsight into the benefits and accommodations Northwood offered to W.E. to meet\\n\\nhis specific needs.” Id. at 477. It also considered the equities de novo and\\n\\nconcluded that they, too, favored reimbursement, finding that the Parents\\n\\nparticipated in the CSE process with an open mind and afforded the District an\\n\\nopportunity to construct an appropriate IEP while simultaneously pursuing\\n\\nnecessary steps to secure W.E.’s prospective re‐enrollment at Northwood. The\\n\\n\\n 33\\n\\fcourt noted, for instance, that the Parents made another visit to the Southern\\n\\nWestchester BOCES program in July 2012, which undermined the District’s\\n\\nargument that W.E.’s enrollment at Northwood was inevitable.\\n\\n C. The District’s Counterclaim\\n\\n The district court also granted the District’s motion to amend to add a\\n\\ncounterclaim for costs awarded by the IHO in Case One. The parties cross‐\\n\\nmoved for summary judgment on the counterclaim and on July 18, 2017, the\\n\\ndistrict court awarded summary judgment to the District and vacated the award\\n\\nof compensatory education for the eighth‐grade school year based on its\\n\\naffirmance of the SRO’s ruling that W.E. was not denied a FAPE during eighth\\n\\ngrade. On September 13, 2017, the district court entered final judgment\\n\\nincorporating its opinions and orders dated November 23, 2016, and July 18, 2017.\\n\\nThe District appealed and the Parents cross‐appealed.\\n\\n DISCUSSION\\n\\n I. Deference Owed to State Hearing and Review Officers\\n\\n “We undergo a circumscribed de novo review of a district court’s grant of\\n\\nsummary judgment in the IDEA context because the responsibility for\\n\\ndetermining whether a challenged IEP will provide a child with a FAPE rests in\\n\\n\\n 34\\n\\fthe first instance with administrative hearing and review officers.” M.W. ex rel.\\n\\nS.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (internal quotation\\n\\nmarks and brackets omitted). “Summary judgment in the IDEA context,\\n\\ntherefore, is only a ‘pragmatic procedural mechanism for reviewing\\n\\nadministrative decisions.’” Id. (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free\\n\\nSch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam)). “Federal courts reviewing\\n\\nadministrative decisions [under the IDEA] must give ‘due weight’ to the\\n\\nadministrative proceedings, ‘mindful that the judiciary generally lacks the\\n\\nspecialized knowledge and experience necessary to resolve persistent and difficult\\n\\nquestions of educational policy.’” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377,\\n\\n381 (2d Cir. 2003) (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129\\n\\n(2d Cir. 1998)).\\n\\n Courts reviewing the state agency’s decision must base their decision on a\\n\\npreponderance of the evidence and may not substitute their own views on\\n\\neducational policy for those of the school authorities. A.C., 553 F.3d at 171. Our\\n\\nreview of the state’s educational decisions is therefore limited, demanding a level\\n\\nof scrutiny that is more critical than clear‐error but not nearly as complete as de\\n\\nnovo. See C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 77 (2d Cir. 2014).\\n\\n\\n 35\\n\\fAccordingly, what we refer to as “de novo review” in fact “only seeks to\\n\\nindependently verify that the administrative record supports the district court’s\\n\\ndetermination” regarding the sufficiency of the state’s educational decisions. Mr.\\n\\nP, 885 F.3d at 748 (quoting M.W., 725 F.3d at 138). We similarly afford special\\n\\ndeference to the district court where its “decision was based solely on the\\n\\nadministrative record.” A.C., 553 F.3d at 171.\\n\\n If the SRO and IHO decisions conflict, “the IHO’s decision ‘may be afforded\\n\\ndiminished weight.’” Id. (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d\\n\\n105, 113 n.2 (2d Cir. 2007)). In other words, we would “defer to the final decision\\n\\nof the state authorities, that is, the SRO’s decision.” M.W., 725 F.3d at 139\\n\\n(internal quotation marks omitted). Yet such deference applies only to the SRO’s\\n\\n“reasoned conclusions”—that is, “[r]eviewing courts must look to the factors that\\n\\n‘normally determine whether any particular judgment is persuasive’” and must\\n\\nultimately “defer to the SRO’s decision on matters requiring educational expertise\\n\\nunless [the court] concludes that the decision was inadequately reasoned, in which\\n\\ncase a better‐reasoned IHO opinion may be considered instead.” R.E., 694 F.3d\\n\\nat 189 (quoting M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 244, 246 (2d Cir. 2012)).\\n\\n“But the district court’s determination of the persuasiveness of an administrative\\n\\n\\n 36\\n\\ffinding must also be colored by an acute awareness of institutional competence\\n\\nand role. . . . [T]he purpose of the IDEA is to provide funding to states so\\n\\nthat they can provide a decent education for disabled students consistent with their\\n\\ntraditional role in educating their residents.” M.H., 685 F.3d at 244.\\n\\n II. Issues for Judicial Review\\n\\n A. Case One\\n\\n i. W.E.’s Eighth‐Grade Year\\n\\n The Parents challenge the district court’s deference to the SRO’s ruling that\\n\\nthe District met its Child Find obligation during W.E.’s eighth‐grade year. The\\n\\nCouncil of Parent Attorneys and Advocates, Inc. has also submitted a brief as\\n\\namicus curiae in which it asserts that the District violated its Child Find obligation\\n\\nwith respect to W.E. As noted previously, the IDEA and its implementing\\n\\nregulations require each State to develop policies and procedures for identifying\\n\\nand evaluating children with disabilities for special education services. Mr. P,\\n\\n885 F.3d at 749; 34 C.F.R. § 300.111. This obligation extends not only to children\\n\\nwith disabilities but also to those “who are suspected of being a child with a\\n\\ndisability . . . and in need of special education, even though they are advancing\\n\\nfrom grade to grade.” Id. § 300.111(c)(1). “However, ‘Child Find does not\\n\\n\\n 37\\n\\fdemand that schools conduct a formal evaluation of every struggling student.’”\\n\\nMr. P, 885 F.3d at 749 (quoting D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d.\\n\\nCir. 2012)).\\n\\n “To hold a school district liable for failing to identify a student who should\\n\\nbe evaluated for purposes of receiving special education, a claimant must show\\n\\nthat school officials overlooked clear signs of disability and were negligent in\\n\\nfailing to order testing, or that there was no rational justification for not deciding\\n\\nto evaluate.” Id. at 750 (internal quotation marks omitted). “A school district\\n\\nmust begin the evaluation process within a reasonable time after the district is on\\n\\nnotice of a likely disability.” Id. The SRO ruled that the District was not on\\n\\nnotice that W.E. might have a disability warranting special education services\\n\\nprior to the Parents’ referral of W.E. to the CSE in April 2011 and that it therefore\\n\\ndid not violate its Child Find obligation. Its thorough opinion found that the\\n\\nadministrative record supported the District’s view that W.E. appeared to be\\n\\n“making progress within the general curriculum despite his absences.” Sp.\\n\\nSupp. App. 71. It also noted that the District worked with the Parents to enable\\n\\nW.E. to catch up on schoolwork despite his extensive absences, citing, inter alia,\\n\\nlaudatory contemporaneous remarks made by M.S. about the District and its\\n\\n\\n 38\\n\\fteachers, as well as M.S.’s decision to cancel a January 2011 Section 504 review\\n\\nmeeting due to her communicating that “I think we have everything in place.”\\n\\nId. at 70.\\n\\n In arguing that the District was on notice of W.E.’s potential disability much\\n\\nearlier, the Parents point out that by mid‐January 2011, W.E. had already missed\\n\\nmore days of school than permitted by District policy for the entire year, received\\n\\nincompletes in three subjects, dropped his Enriched English class, and that his\\n\\ngrade in Algebra had fallen from a 93 to a 78. With the exception of W.E. having\\n\\ndropped Enriched English, the SRO’s opinion indicates awareness of these facts,\\n\\nhowever, and instead reaches a contrary conclusion that it was not until the third\\n\\nquarter of W.E.’s eighth grade year that his “absences began to compromise his\\n\\nability to achieve academically.” Id. at 71. And as the district court noted, the\\n\\nSRO also considered W.E.’s standardized test scores and feedback from teachers,\\n\\nthus construing the meaning of “academic success” more broadly than the IHO\\n\\nhad done—an analysis it was entitled to undertake. See W.A., 219 F. Supp. 3d at\\n\\n459.\\n\\n Because we must defer to the SRO’s “reasoned conclusions” on “matters\\n\\nrequiring educational expertise,” R.E., 694 F.3d at 189, we hold that the district\\n\\n\\n 39\\n\\fcourt properly deferred to the SRO on the question of whether the District violated\\n\\nits Child Find obligation for W.E.’s eighth‐grade school year. The question of\\n\\nwhether the District should have taken more aggressive steps in the face of\\n\\ncompeting signals arising from various interactions with the Parents and with the\\n\\nDistrict’s personnel regarding W.E.’s progress in the general education curriculum\\n\\nis an issue that calls for expertise; it is therefore an issue on which we must defer\\n\\nto the educational experts. In addition, the district court correctly noted that\\n\\n“[t]he crux of the SRO’s decision, however, was not so much that there was no\\n\\nbasis to suspect that W.E. may be disabled, but that there was no reason to suspect\\n\\nthat special education was needed to remedy that disability.” W.A., 219 F. Supp.\\n\\n3d at 457. This is a conclusion that a reviewing court should not disturb absent\\n\\nan objective flaw in the SRO’s reasoning. For similar reasons, we decline to\\n\\nconsider the argument presented by amicus that school avoidance is a\\n\\n“manifestation of disability” that demanded intervention when the State was in\\n\\nthe best position to assess whether and to what extent W.E.’s absences warranted\\n\\nspecial education services.\\n\\n In light of our holding that W.E. was not denied a FAPE for his eighth‐grade\\n\\nyear, we decline, as the district court did, to reach the Parents’ request for\\n\\n\\n 40\\n\\fcompensatory education for that year. For the same reason, we affirm the district\\n\\ncourt’s July 18, 2017 decision vacating the SRO’s award of compensatory\\n\\ncounseling services for eighth grade. While the Parents assert that the award was\\n\\nissued in connection with the denial of a FAPE for ninth grade because it was\\n\\nintended to reimburse the Parents for therapy sessions that Dr. Williams relied\\n\\nupon to develop W.E.’s ninth‐grade IEP, the IHO opinion in Case One makes clear\\n\\nthat the award of counseling reimbursement was issued in connection with the\\n\\ndenial of a FAPE for eighth grade. We are thus not inclined to override the State’s\\n\\nexplicit attribution. Nor do we find compelling the Parents’ argument that the\\n\\nDistrict’s alleged failure to appeal the IHO’s limited award of reimbursement for\\n\\nDr. Williams’s psychiatric services rendered the district court without jurisdiction\\n\\nto grant the District’s motion to amend to seek recovery of these costs. As the\\n\\ndistrict court found, it “defies common sense to suggest” that the District did not\\n\\nadministratively appeal the reimbursement award when there is no question that\\n\\nthe District cross‐appealed the portion of the IHO’s decision that found that the\\n\\nDistrict had violated its Child Find obligation and denied W.E. a FAPE for his\\n\\neighth‐grade year. See W.A., 2017 WL 3066888, at *9.\\n\\n\\n\\n\\n 41\\n\\f In sum, we affirm in all respects the district court’s judgment and\\n\\naccompanying opinion and orders regarding the eighth‐grade school year.\\n\\n ii. Whether Northwood Was an Appropriate Placement for\\n W.E.’s Ninth‐Grade Year\\n\\n Courts apply the three‐step “Burlington/Carter” test to determine whether a\\n\\nparent is entitled to retroactive tuition reimbursement. C.F., 746 F.3d at 76. We\\n\\nfirst assess whether the District provided a FAPE; if it did not, we move on to the\\n\\nsecond and third steps, under which the parents bear the burden of showing that\\n\\ntheir unilateral private school placement was appropriate for the child’s needs and\\n\\nthat the equities work in their favor. Id.; see also A.C., 553 F.3d at 171–72. The\\n\\nDistrict does not contest that it failed to provide W.E. a FAPE for W.E.’s ninth‐ or\\n\\ntenth‐grade school years, and we therefore move directly to the second step of the\\n\\nanalysis.\\n\\n At step two, the private school placement “must be reasonably calculated to\\n\\nenable the child to receive educational benefits.” M.H., 685 F.3d at 252 (internal\\n\\nquotation marks omitted). “Grades, test scores, and regular advancement may\\n\\nconstitute evidence that a child is receiving educational benefit, but courts\\n\\nassessing the propriety of a unilateral placement consider the totality of the\\n\\ncircumstances in determining whether that placement reasonably serves a child’s\\n\\n 42\\n\\findividual needs.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir.\\n\\n2006). Even where the private placement yields evidence of the child’s success,\\n\\nhowever:\\n\\n courts should not disturb a state’s denial of IDEA reimbursement where the\\n chief benefits of the chosen school are the kind of advantages that might be\\n preferred by parents of any child, disabled or not. Rather, the unilateral\\n private placement is only appropriate if it provides education instruction\\n [specially] designed to meet the unique needs of a handicapped child.\\n\\nM.H., 685 F.3d at 252 (quoting Gagliardo, 489 F.3d at 115 (internal quotation marks\\n\\nand alterations omitted).\\n\\n Our conclusion that the SRO’s opinion in Case One was sufficiently\\n\\nreasoned and adequately supported by the administrative record supports the\\n\\ndeference that the district court conferred on the SRO on issues demanding its\\n\\neducational expertise as concerns W.E.’s ninth‐grade year. We therefore affirm\\n\\nthe district court’s deference to the SRO’s ruling that Northwood School was not\\n\\nan appropriate placement entitling the Parents to tuition reimbursement for ninth\\n\\ngrade. While the Parents argue that the State failed to consider fully\\n\\nNorthwood’s responsiveness to W.E.’s unique needs and the significant\\n\\nimprovements he experienced while enrolled at the private school—including his\\n\\nmomentous increase in attendance—the SRO’s opinion reflects that it considered\\n\\n\\n 43\\n\\fthe relevant evidence of W.E.’s progress. For instance, the SRO noted that “the\\n\\nhearing record supports a finding that the student’s social/emotional and\\n\\nacademic functioning improved since the end of the 2010‐11 school year, . . . and\\n\\nthat the student achieved some progress academically during the 2011‐12 school\\n\\nyear” while simultaneously citing reports from W.E.’s teachers describing his\\n\\ninconsistent level of academic effort, timeliness, and preparation. Sp. Supp. App.\\n\\n84. The SRO also properly cited this Court’s decision in Gagliardo, 489 F.3d at 115,\\n\\nfor the proposition that a student’s progress in a unilateral placement, while\\n\\nrelevant to the court’s inquiry, cannot alone demonstrate the appropriateness of\\n\\nthat placement.\\n\\n Indeed, the crux of the SRO’s decision was not that W.E. failed to progress\\n\\nat Northwood, but, rather, that:\\n\\n the hearing record lacks evidence demonstrating that [Northwood]\\n provided instruction that was designed to address the student’s tendencies\\n to develop physical symptoms and exhibit school avoidance when under\\n stress, or his need to develop coping skills to manage stress related to\\n academics and social interactions, and to improve his organizational/study\\n skills related to academics, and, that the instruction that the student received\\n during the 2011‐12 school year was, in fact, available to all students enrolled\\n at [Northwood].\\n\\nId. at 84–85. The SRO thus concluded that placing W.E. in Northwood’s\\n\\n“residential setting—which merely eliminated his exposure to the public school\\n\\n 44\\n\\fenvironment and to activities that he perceived as stressful—is not sufficient in\\n\\nthis case to meet the parents’ burden to establish that [Northwood’s] program\\n\\nprovided the student with educational instruction specially designed to meet his\\n\\nunique needs.” Id. at 85. Instead, the SRO found that Northwood’s educational\\n\\nand environmental benefits were those “that might be preferred by parents of any\\n\\nchild, disabled or not,” and therefore did not satisfy the IDEA’s definition of\\n\\nspecial education. Id. (quoting Gagliardo, 489 F.3d at 115).\\n\\n Because the question of whether a private school placement provided\\n\\nspecial education services is precisely a question on which we defer to educational\\n\\nexperts, see, e.g., Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 451–52 (2d Cir. 2015), and\\n\\nbecause the SRO’s considered opinion reflects that it viewed W.E.’s migraines as\\n\\nstemming from underlying emotional and psychological issues that Northwood\\n\\nwas not equipped to address, we hold that the district court properly deferred to\\n\\nthe SRO notwithstanding its disagreement with certain aspects of the SRO’s\\n\\nopinion. We therefore do not reach the issue of whether the equities favored\\n\\nreimbursement.\\n\\n B. Case Two\\n\\n i. Whether Northwood Was an Appropriate Placement for W.E.’s\\n Tenth‐Grade Year\\n\\n 45\\n\\f As already noted, while the same SRO presided over the administrative\\n\\nappeals in both Case One and Case Two, the district court found its opinion in the\\n\\nlatter case conclusory and unpersuasive and instead took the IHO’s opinion,\\n\\nwhich it found more convincing, into account. “Where the IHO and SRO\\n\\ndisagree, reviewing courts are not entitled to adopt the conclusions of either state\\n\\nreviewer according to their own policy preferences or views of the evidence; courts\\n\\nmust defer to the reasoned conclusions of the SRO as the final state administrative\\n\\ndetermination.” M.H., 685 F.3d at 246. Because we are persuaded that the\\n\\ndistrict court improperly substituted its judgment on matters of educational policy\\n\\nfor that of the SRO, and in light of the district court’s own acknowledgment that\\n\\n“[t]here is no question the SRO considered all of the evidence on the record,” W.A.,\\n\\n219 F. Supp. 3d at 476, we hold that the district court improperly failed to accord\\n\\ndeference to the SRO’s ruling that Northwood School was not an appropriate\\n\\nplacement for W.E.’s tenth‐grade year.\\n\\n First, we perceive no qualitative difference in the SRO’s opinions in Case\\n\\nOne and Two that would entitle the former but not the latter to deference. The\\n\\ndistrict court’s characterization of the SRO’s opinion in Case Two as “dedicat[ing]\\n\\nbarely two pages to actually analyzing whether Northwood was an appropriate\\n\\n 46\\n\\fplacement,” Id. at 470, is unfounded. It ignores the SRO’s comprehensive review\\n\\nof the relevant record evidence documenting, inter alia, W.E.’s progress, reports\\n\\nfrom W.E.’s Northwood teachers and clinicians, and the various accommodations\\n\\nand amenities W.E. received at Northwood—all of which informed the SRO’s\\n\\nultimate conclusion as to whether Northwood provided W.E. special education\\n\\nwithin the meaning of the IDEA.\\n\\n The district court additionally criticized the SRO’s opinion as omitting\\n\\ncertain considerations, but the record reveals that, by and large, the SRO did\\n\\nconsider the same factors that the district court found dispositive and instead\\n\\ndiffered as to their import. For example, the district court took issue with the\\n\\nthoroughness of the SRO’s discussion of W.E.’s tenth‐grade accommodations,\\n\\nspecifically focusing on the way in which an iPad Northwood provided benefitted\\n\\nW.E.’s academic progress. According to the district court, “the SRO made no\\n\\nreference to the device in its analysis of whether Northwood was an appropriate\\n\\nplacement.” Id. at 473. In fact, however, the SRO opinion accounts for testimony\\n\\nconcerning the iPad in several places, specifically noting its use “as an\\n\\ninstructional or learning aid.” Supp. App. 104. While the district court\\n\\nemphasized testimony from W.E.’s western civilization teacher indicating “that\\n\\n\\n 47\\n\\fthe iPad was a ‘godsend’ for W.E.”, W.A., 219 F. Supp. 3d at 473, the SRO\\n\\nhighlighted, inter alia, other testimony from W.E.’s English teacher and counselor,\\n\\nindicating that he thought the iPad was a good match but that he could not provide\\n\\nquantifiable evidence of the way W.E.’s accommodation plan had benefitted him.\\n\\nThe SRO also noted comments from W.E.’s western civilization teacher stating that\\n\\nW.E. used the iPad for notetaking and homework and that it lessened his need for\\n\\norganizational help.\\n\\n The district court also faulted the SRO for failing to discuss the vast\\n\\nimprovement in W.E.’s attendance while at Northwood. But the SRO observed\\n\\nthat the decreased frequency of W.E.’s headaches yielded “significantly improved\\n\\nschool attendance,” Supp. App. 100, later stating that “it is without question that\\n\\nduring the 2012‐13 school year, the student exhibited progress in the sense that\\n\\nexcept when experiencing a migraine, he attended classes consistently, achieved\\n\\ngrades in the ‘A‐‘ to ‘C+’ range, and demonstrated increased maturity and ability\\n\\nto socially interact with peers,” Id. at 109. What is more, while W.E.’s improved\\n\\nattendance at Northwood undoubtedly serves as compelling indicia of progress,\\n\\nit was from eighth to ninth grade that W.E. went from missing over 100 days of\\n\\nschool to only nine the following year. Yet the district court did not find this\\n\\n\\n 48\\n\\fenormous improvement vital enough to overturn the SRO’s assessment in Case\\n\\nOne. Between ninth and tenth grade, by contrast, W.E.’s absences essentially\\n\\nremained the same, and so the district court’s emphasis on W.E.’s attendance in\\n\\nthe latter school year cannot bear the weight assigned to it.\\n\\n Outside of W.E.’s attendance and his use of an iPad, the district court\\n\\nlamented the SRO’s failure to discuss a second study hall Northwood offered\\n\\nduring the tenth‐grade school year, yet simultaneously noted that the record\\n\\ncontained little evidence of the study hall’s benefit. It also critiqued the SRO’s\\n\\nlack of attention to Northwood’s small class size and boarding‐school feature,\\n\\nwhich, according to the district court, “provided W.E. benefits specific to his\\n\\nunique needs.” W.A., 219 F. Supp. 3d at 476. The SRO’s opinion, however, does\\n\\nreflect that it considered Northwood’s small student‐to‐teacher ratio and the way\\n\\nin which it enabled “discussion‐based learning.” Supp. App. 107. In so doing it\\n\\ncited Frank G., 459 F.3d at 365, where this Court recognized that small class size\\n\\nfalls within the IDEA’s definition of special education but declined to decide\\n\\nwhether small class size alone could render a private placement appropriate.\\n\\nThis Court, moreover, recently recognized that small class size “is the kind of\\n\\neducational and environmental advantage that might be preferred by parents of\\n\\n\\n 49\\n\\fany child, disabled or not.” Doe, 790 F.3d at 452 (internal quotation marks and\\n\\nalterations omitted); see also Gagliardo, 489 F.3d at 115. The district court\\n\\notherwise agreed with the SRO’s characterization of W.E.’s academic performance,\\n\\nas well as the SRO’s conclusions that Northwood did not provide meaningful\\n\\ncounseling and that its outdoor programming did not render it an appropriate\\n\\nplacement.6\\n\\n In short, the district court’s decision not to defer to the SRO’s opinion on the\\n\\nbasis of the SRO’s putatively perfunctory analysis is not supported by the record.\\n\\nCf. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 838 (2d Cir. 2014) (declining\\n\\nto afford deference to SRO where its opinion “was not sufficiently reasoned or\\n\\ncarefully considered because the SRO did not consider or comment on any of the\\n\\nspecific services provided to [the student at the private school] or the progress that\\n\\nthe record shows he made at the school”).\\n\\n Second, rather than “credit[] the conclusions that were most consistent with\\n\\nits own subjective analysis,” the reviewing court should only reject the SRO’s\\n\\n\\n\\n6 The district court was essentially ambivalent about the impact of nursing services, though its\\nobservation that “[i]t strains credulity to suggest that an around‐the‐clock nurse staff, one of\\nwhom resided on the same floor as W.E., . . . was not an educational feature that worked to W.E.’s\\nspecific benefit,” W.A., 219 F. Supp.3d at 475, would appear to apply with equal force to W.E.’s\\nninth grade year, where the district court reached a contrary conclusion.\\n\\n 50\\n\\fconclusions if it finds that they are not supported by a preponderance of the\\n\\nevidence. M.H., 685 F.3d at 248. Here, the district court did not address whether\\n\\nthe SRO’s conclusions were supported by a preponderance and instead appeared\\n\\nto conduct a true de novo analysis of whether each factor favored reimbursement,\\n\\nultimately holding that the SRO “failed to give adequate weight to many of\\n\\nNorthwood’s most beneficial features and erroneously discounted the value of\\n\\nsome of those features merely because they were generally available to all\\n\\nstudents.” W.A., 219 F. Supp. 3d at 470. We agree with the district court that a\\n\\nresource that benefits an entire student population can constitute special education\\n\\nin certain circumstances. Under our precedents, however, a reviewing court is\\n\\nnot entitled to overrule the State on a question of educational policy—such as\\n\\nwhether a generally available resource is specially tailored to a particular disabled\\n\\nstudent’s needs—based merely on its own disagreement with the State’s\\n\\nevaluation of that resource. See M.H., 685 F.3d at 241; see also Cerra v. Pawling Cent.\\n\\nSch. Dist., 427 F.3d 186, 196 (2d Cir. 2005) (For a reviewing court to render its own\\n\\ndetermination on a matter of educational policy, it must point to “objective\\n\\nevidence in the record suggesting that the SRO has reached an erroneous\\n\\nconclusion.”). In ruling that Northwood School was an appropriate placement\\n\\n\\n 51\\n\\ffor W.E.’s tenth‐grade year, the district court appeared to do just that—conducting\\n\\nits own totality of the circumstances analysis in which it substituted its subjective\\n\\nassessment for that of the State.\\n\\n As in Case One, the SRO’s ruling was grounded in its conclusion that the\\n\\nrecord lacked evidence showing that Northwood provided W.E. with “specially\\n\\ndesigned instruction to meet his ongoing need to develop insight and\\n\\nunderstanding into what triggered his stress and anxiety, and positive coping\\n\\nskills to address stress and decrease anxiety; difficulties that the hearing record\\n\\nshowed not only contributed to the student’s tendency to develop migraine\\n\\nheadaches, but also to exhibit organizational deficits and avoidance behaviors.”\\n\\nSupp. App. 109. While the Parents highlight the many benefits Northwood\\n\\nprovided W.E., endorsements of the private school by W.E.’s medical\\n\\nprofessionals, and various emblems of W.E.’s academic, social, and emotional\\n\\ngrowth during his tenure, many of the features that appear to have abated W.E.’s\\n\\nstress and migraines are those that any parent would desire in an educational\\n\\nsetting—namely, smaller classes, closer attention by faculty and staff, bucolic\\n\\nsurroundings in a residential environment, and use of an iPad for organization\\n\\nand note‐taking. Thus, even though the record may support the view that\\n\\n\\n 52\\n\\fNorthwood was an excellent placement for W.E., it also supports the SRO’s\\n\\nconclusion that Northwood was not methodologically or therapeutically\\n\\nstructured in the way required for reimbursement under the IDEA. See Gagliardo,\\n\\n489 F.3d at 115. This educational policy judgment likewise reinforces the\\n\\ndeference that we believe we must give the SRO’s opinion.\\n\\n CONCLUSION\\n\\n We affirm the district court’s November 23, 2016 opinion and order to the\\n\\nextent it deferred to the SRO’s conclusions regarding the District’s Child Find\\n\\nobligation and Northwood’s failure to provide W.E. special education during the\\n\\nninth‐grade academic year. Because the district court failed to confer appropriate\\n\\ndeference to the SRO’s analysis regarding Northwood’s lack of specially designed\\n\\ninstruction tailored to W.E.’s unique needs during the tenth‐grade school year, we\\n\\nreverse the district court’s November 23, 2016 opinion and order to the extent it\\n\\nheld that Northwood School was an appropriate placement for that school year\\n\\nand accordingly vacate its award of tuition reimbursement. We also affirm the\\n\\ndistrict court’s July 18, 2017 opinion and order granting the District’s motion for\\n\\nsummary judgment and denying the Parents’ cross‐motion for summary\\n\\n\\n\\n\\n 53\\n\\fjudgment and vacating the award of compensatory education for the eighth‐grade\\n\\nschool year.\\n\\n Because the District is the prevailing party both on appeal and on the cross‐\\n\\nappeal, costs under Fed. R. App. P. 39(a) shall be taxed against Appellees‐Cross‐\\n\\nAppellants.\\n\\n\\n\\n\\n 54\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2397,"cells":{"id":{"kind":"number","value":4630421,"string":"4,630,421"},"name":{"kind":"string","value":"Gerard Patrick MATTHEWS, Petitioner, v. William P. BARR, United States Attorney General, Respondent."},"name_abbreviation":{"kind":"string","value":"Matthews v. Barr"},"decision_date":{"kind":"string","value":"2019-06-18"},"docket_number":{"kind":"string","value":"Docket 16-3145; August Term, 2017"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Hall, Carney, Koeltl\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888759/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888760/\", \"author_raw\": \"\"}, {\"author\": \"HALL, CIRCUIT JUDGE:\", \"type\": \"010combined\", \"text\": \"16‐3145\\nMatthews v. Barr\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n August Term, 2017\\n\\n (Argued: May 9, 2018 Decided: June 18, 2019)\\n\\n Docket No. 16‐3145\\n________________________________________________________________________\\n\\n GERARD PATRICK MATTHEWS,\\n\\n Petitioner,\\n\\n ‐ v. ‐\\n\\n WILLIAM P. BARR, United States Attorney General,\\n\\n Respondent.\\n________________________________________________________________________\\n\\nBefore:\\n HALL and CARNEY, Circuit Judges, KOELTL, District Judge.1\\n\\n Petitioner seeks review of a decision of the Board of Immigration Appeals,\\naffirming a decision of an Immigration Judge that found Petitioner removable and\\ndenied Petitioner’s applications for cancellation of removal and adjustment of\\nstatus. The agency determined that Petitioner’s New York convictions for\\nendangering the welfare of a child were crimes of child abuse, child neglect, or\\nchild abandonment under the Immigration and Nationality Act, and denied relief\\nfrom removal as a matter of discretion. Because we have previously upheld the\\ndetermination of the Board of Immigration Appeals that child endangerment\\noffenses fall within the Immigration and Nationality Act’s crime of child abuse\\nprovision, and we agree that New York law—which criminalizes conduct that\\n\\n1Judge John G. Koeltl, of the United States District Court for the Southern District of New York,\\nsitting by designation.\\n\\nposes a likelihood of physical, mental, or moral harm to a child—falls within the\\nBIA’s definition, we DENY the petition.\\n\\n Petition for review DENIED.\\n\\n Judge Carney dissents in a separate opinion.\\n\\n\\n\\n DAVID J. ZIMMER, Goodwin Procter LLP, Boston,\\n MA (William M. Jay, Goodwin Procter LLP,\\n Washington, D.C.; Seymour W. James, Jr.,\\n Attorney‐in‐Chief, Hasan Shafiqullah, Attorney‐in\\n Charge, Ward J. Oliver, Supervising Attorney,\\n Immigration Law Unit, The Legal Aid Society,\\n New York, NY, on the brief), for Petitioner.\\n\\n SONG PARK, Senior Litigation Counsel, Office of\\n Immigration Litigation, Civil Division (Chad A.\\n Readler, Acting Assistant Attorney General, Cindy\\n S. Ferrier, Assistant Director, on the brief), United\\n States Department of Justice, Washington, D.C., for\\n Respondent.\\n\\n ANDREW WACHTENHEIM, Immigrant Defense\\n Project, New York, NY, for Amici Curiae Brooklyn\\n Defender Services, Queens Law Associates,\\n Neighborhood Defender Service of Harlem, The\\n Bronx Defenders, Essex County Public Defender’s\\n Office, Monroe County Public Defender’s Office,\\n Immigrant Defense Project.\\n\\n\\n\\n\\n 2\\n\\nHALL, CIRCUIT JUDGE:\\n\\n Petitioner Gerard Patrick Matthews seeks review of an August 2016 decision\\n\\nof the Board of Immigration Appeals (“BIA”), affirming an April 2016 decision of\\n\\nan Immigration Judge (“IJ”) that ordered Matthews removed to Ireland on the\\n\\nground that his convictions for endangering the welfare of a child under New York\\n\\nPenal Law (“NYPL”) § 260.10(1) made him removable under Immigration and\\n\\nNationality Act (“INA”) § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), which\\n\\nprovides that “[a]ny alien who at any time after admission is convicted of . . . a\\n\\ncrime of child abuse, child neglect, or child abandonment is deportable.”\\n\\nMatthews argues that he is not removable because the New York statute of\\n\\nconviction is not categorically a crime of child abuse under the INA. First, he\\n\\nargues that the INA’s definition of crime of child abuse requires that there be\\n\\nactual harm to a child, or at least a high risk of serious injury. He challenges the\\n\\nBIA’s definition, which encompasses state child endangerment offenses that\\n\\ninvolve a sufficiently high risk of physical, mental, or moral harm to a child.\\n\\nBecause we have deferred to the BIA’s definition as a reasonable interpretation of\\n\\nthe crime of child abuse provision in a precedential decision, Florez v. Holder, 779\\n\\nF.3d 207 (2d Cir. 2015), and we find no basis for departing from that decision, we\\n\\n\\n\\n 3\\n\\nreject Matthews’s first argument and continue to apply the BIA’s definition of\\n\\ncrime of child abuse. Second, Matthews argues that the New York child\\n\\nendangerment law, NYPL § 260.10(1), stretches even further than the BIA’s broad\\n\\ndefinition because the statute and New York courts’ interpretation of it allow for\\n\\nconvictions based on conduct that poses only a minimal risk of nonserious harm\\n\\nto a child. We reject this argument as well: NYPL § 260.10(1)’s text and New York\\n\\ncourt decisions applying the statute require proof of a knowing mental state and a\\n\\nlikelihood of harm, and Matthews has not shown a realistic probability of\\n\\nconviction for conduct that does not pose a likelihood of harm.\\n\\n We DENY the petition for review.\\n\\n BACKGROUND\\n\\n Petitioner Gerard Patrick Matthews is a native and citizen of Ireland who\\n\\nhas lived in the United States as a lawful permanent resident since 1989.\\n\\nMatthews, who was physically and sexually abused as a child, has a long history\\n\\nof alcoholism and has repeatedly exposed himself in public while intoxicated.\\n\\nBetween 1990 and 2011, these public exposure incidents resulted in at least nine\\n\\nconvictions for public lewdness and two convictions for endangering the welfare\\n\\n\\n\\n\\n 4\\n\\nof a child under New York Penal Law (“NYPL”) § 260.10(1).2 Section § 260.10(1)\\n\\nprohibits, as relevant here, “knowingly act[ing] in a manner likely to be injurious\\n\\nto the physical, mental or moral welfare of a child less than seventeen years old.”\\n\\nMatthews was convicted in 2002 of violating NYPL § 260.10(1) and was sentenced\\n\\nto six months’ imprisonment. In 2003, he pleaded guilty to another NYPL\\n\\n§ 260.10(1) violation as well as a public lewdness charge under NYPL § 245.00 and\\n\\nwas sentenced to concurrent terms of imprisonment of one year and 90 days,\\n\\nrespectively. Matthews testified at his removal hearing that he never intentionally\\n\\ntargeted children when he engaged in publicly lewd behavior; rather, he targeted\\n\\nadults, and the child endangerment charges were tacked onto his public lewdness\\n\\ncharges because children happened to be present. However, the IJ did not credit\\n\\nMatthews’s accounts of the circumstances of these convictions because they were\\n\\nin stark contrast to the criminal complaints, which alleged that he targeted a nine‐\\n\\nyear‐old boy in one case and two teenage girls in the other.\\n\\n In 2011, the Department of Homeland Security placed Matthews in removal\\n\\nproceedings through service of a Notice to Appear (“NTA”). The NTA charged\\n\\nMatthews as removable on the ground that his New York convictions for\\n\\n\\n2Matthews also has a 1995 conviction for third‐degree assault under NYPL § 120.00, for which he\\nwas sentenced to three years’ probation. This conviction was not charged as a basis for removal.\\n\\n 5\\n\\nendangering the welfare of a child were crimes of child abuse, child neglect, or\\n\\nchild abandonment under 8 U.S.C. § 1227(a)(2)(E)(i). An IJ initially granted\\n\\nMatthews discretionary relief from removal, but the BIA overturned that ruling in\\n\\n2013. Matthews petitioned for review, and we remanded the case for the agency\\n\\nto explain fully its denial of relief. Matthews v. Holder, 590 F. App’x 75 (2d Cir.\\n\\n2015). We declined to consider Matthews’s then‐unexhausted argument that his\\n\\nconvictions for endangering the welfare of a child were not removable offenses\\n\\n(i.e., crimes of child abuse, child neglect, or child abandonment), but observed that\\n\\nMatthews could renew this challenge before the agency on remand. Id. at 77.\\n\\n On remand, the Government added an additional charge that Matthews\\n\\nwas removable for having been convicted of two crimes involving moral turpitude\\n\\n(“CIMTs”) based on the public lewdness convictions in 1990 and 1994. See INA\\n\\n§ 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) (“Any alien who at any time after\\n\\nadmission is convicted of two or more crimes involving moral turpitude, not\\n\\narising out of a single scheme of criminal misconduct . . . is deportable.”).\\n\\n In April 2016, the IJ denied all relief and ordered Matthews removed. No.\\n\\nA042 231 142 (Immig. Ct. N.Y. City Apr. 7, 2016). The IJ found that Matthews’s\\n\\npublic lewdness convictions were not CIMTs, but concluded that Matthews was\\n\\n\\n\\n 6\\n\\nremovable for crimes of child abuse, neglect, or abandonment based on his\\n\\nconvictions under NYPL § 260.10(1). The IJ relied on the BIA’s precedential\\n\\ndecision in Matter of Mendoza Osorio, 26 I. & N. Dec. 703 (B.I.A. 2016), which held\\n\\nthat a conviction for endangering the welfare of a child under NYPL § 260.10(1) is\\n\\na crime of child abuse, neglect, or abandonment under the INA. The IJ denied\\n\\nboth adjustment of status and cancellation of removal as a matter of discretion,\\n\\nreasoning that Matthews’s “several positive factors” (over twenty‐five years’\\n\\nresidence in the United States, a strong relationship with his U.S.‐citizen wife,\\n\\nwork history, and payment of taxes) were outweighed by his criminal history and\\n\\nlack of rehabilitation.\\n\\n In August 2016, the BIA dismissed Matthews’s appeal. In re Gerard Patrick\\n\\nMatthews, No. A042 231 142 (B.I.A. Aug. 30, 2016). The BIA agreed that Matthews\\n\\nwas removable, rejecting his argument that Mendoza Osorio misinterpreted the\\n\\nscope of New York’s law and holding that NYPL § 260.10(1) “requires a knowing\\n\\nact with a likelihood of harm to a child.” Certified Administrative Record (“CAR”)\\n\\nat 4. The BIA also agreed with the IJ that Matthews did not merit discretionary\\n\\nrelief. Id. at 5.\\n\\n\\n\\n\\n 7\\n\\n Matthews, who is represented by pro bono counsel, timely petitioned for\\n\\nreview.\\n\\n DISCUSSION\\n\\n I. Standard of Review\\n\\n Where, as here, “the BIA has adopted the IJ’s reasoning and offered\\n\\nadditional commentary, we review the decision of the IJ as supplemented by the\\n\\nBIA.” Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137, 142 (2d Cir. 2008).\\n\\n“Whether a conviction qualifies as a removable offense under a stated provision\\n\\nof the INA is a question of law.” Mizrahi v. Gonzales, 492 F.3d 156, 157–58 (2d Cir.\\n\\n2007). We review the BIA’s construction of state criminal law de novo. Id. at 158.\\n\\n“To the extent the question requires us to construe a provision of the INA,\\n\\nhowever, because the administration of that statute is entrusted to the BIA, our\\n\\nreview follows the two‐step process outlined in Chevron, U.S.A, Inc. v. Natural Res.\\n\\nDef. Council, Inc., 467 U.S. 837 (1984).” Id.\\n\\n II. The BIA’s Definition of “Crime of Child Abuse”\\n\\n Matthews was ordered removed under 8 U.S.C. § 1227(a)(2)(E)(i), which\\n\\nprovides that, “[a]ny alien who at any time after admission is convicted of . . . a\\n\\ncrime of child abuse, child neglect, or child abandonment is deportable.” The\\n\\n\\n\\n 8\\n\\nstatute does not define crime of child abuse, neglect, or abandonment, but the BIA\\n\\nhas “interpret[ed] the term ‘crime of child abuse’ broadly to mean any offense\\n\\ninvolving an intentional, knowing, reckless, or criminally negligent act or\\n\\nomission that constitutes maltreatment of a child or that impairs a child’s physical\\n\\nor mental well‐being.” Matter of Velazquez‐Herrera, 24 I. & N. Dec. 503, 512 (B.I.A.\\n\\n2008). The BIA held that,\\n\\n At a minimum, this definition encompasses convictions for offenses\\n involving the infliction on a child of physical harm, even if slight;\\n mental or emotional harm, including acts injurious to morals; sexual\\n abuse, including direct acts of sexual contact, but also including acts\\n that induce (or omissions that permit) a child to engage in\\n prostitution, pornography, or other sexually explicit conduct; as well\\n as any act that involves the use or exploitation of a child as an object\\n of sexual gratification or as a tool in the commission of serious crimes,\\n such as drug trafficking.\\n\\nId. The BIA’s definition also covers child endangerment offenses where no actual\\n\\nharm or injury occurs, so long as the state statute requires a sufficient risk of harm\\n\\nto a child. Matter of Soram, 25 I. & N. Dec. 378, 381–83 (B.I.A. 2010). In Soram, the\\n\\nBIA held that a Colorado child endangerment statute that state courts had\\n\\ninterpreted to require a “reasonable probability” of injury to a child was\\n\\ncategorically a crime of child abuse, neglect, or abandonment. Id. at 385–86. The\\n\\nBIA noted that, given the wide degree of variation in state child endangerment\\n\\nstatutes, “a State‐by‐State analysis is appropriate to determine whether the risk of\\n\\n 9\\n\\nharm required by the endangerment‐type language in any given State statute is\\n\\nsufficient to bring an offense within the definition of ‘child abuse’ under the\\n\\n[INA].” Id. at 383.\\n\\n Importantly, this is not the first time we have reviewed the BIA’s conclusion\\n\\nthat a state child endangerment offense is a removable crime of child abuse,\\n\\nneglect, or abandonment under 8 U.S.C. § 1227(a)(2)(E)(i). In 2015, employing the\\n\\ntwo‐step Chevron framework,3 we found the phrase “crime of child abuse, child\\n\\nneglect, or child abandonment” to be ambiguous because it is not defined in the\\n\\nINA, and we deferred to the BIA’s conclusion in Soram that this phrase\\n\\nencompassed at least some child endangerment offenses. Florez, 779 F.3d at 211––\\n\\n14. We noted that in 1996, when Congress added the crime of child abuse\\n\\nprovision to the INA, at least nine states had criminal child abuse statutes that\\n\\ncovered endangerment without injury. Id. at 212. We suggested, however, that a\\n\\ndefinition that is not limited to crimes that pose a high enough risk of harm or\\n\\ninjury to a child may not be reasonable:\\n\\n Although the BIA’s definition of ‘a crime of child abuse’ is expansive,\\n it is not unlimited. Soram confirms that a state child‐endangerment\\n\\n\\n3Under Chevron, courts ask, first, whether a statute is ambiguous. If it is not ambiguous, courts\\nmust apply the statute’s clear meaning. Second, if the statute is ambiguous, courts defer to a\\npermissible interpretation of the statute by the administrative agency responsible for its\\nenforcement. 467 U.S. at 842–43.\\n\\n 10\\n\\n statute qualifies as a ‘crime of child abuse’ under the INA only if it\\n requires, as an element of the crime, a sufficiently high risk of harm to\\n a child . . . this limitation ensures that the BIA’s treatment of state\\n child‐endangerment statutes remains within the realm of reason.\\n\\nId. The BIA has agreed with this position. In Mendoza Osorio, the agency\\n\\n“recognize[d] that there are child endangerment statutes that do not require a\\n\\nsufficiently high risk of harm to a child to meet the definition of child abuse,\\n\\nneglect, or abandonment under the [INA].” 26 I. & N. Dec. at 711. As an example,\\n\\nthe BIA pointed out that a conviction for misdemeanor child endangerment in\\n\\nCalifornia is not a crime of child abuse under the INA because that statute\\n\\n“punishes ‘conduct that creates only the bare potential for nonserious harm to a\\n\\nchild.’” Id. (quoting Fregozo v. Holder, 576 F.3d 1030, 1037–38 (9th Cir. 2009)); see\\n\\nalso Cal. Penal Code § 273a(b) (“Any person who, under circumstances or\\n\\nconditions other than those likely to produce great bodily harm or death, . . .\\n\\nwillfully causes or permits that child to be placed in a situation where his or her\\n\\nperson or health may be endangered, is guilty of a misdemeanor.” (emphases\\n\\nadded)).\\n\\n Whether a New York misdemeanor conviction for endangering the welfare\\n\\nof a child is a crime of child abuse remains an open question of law in this Circuit.\\n\\nFlorez had conceded that NYPL § 260.10(1) fell within the BIA’s definition, and\\n\\n\\n 11\\n\\ntherefore we did not need to decide the issue in that case. Florez, 779 F.3d at 209–\\n\\n10, 212.4 In Matthews’s case, the BIA followed Mendoza Osorio, a precedential\\n\\ndecision holding that NYPL § 260.10(1) is a crime of child abuse. 26 I. & N. Dec. at\\n\\n705–12. Focusing on the prong of the statute at issue here, “taking action that is\\n\\nlikely to be harmful to a child’s welfare,” the BIA concluded that a conviction\\n\\nunder the statute “requires a showing that the defendant knew that his actions\\n\\nwere likely to result in physical, mental, or moral harm to a child.” Id. at 705–06.\\n\\n“To act ‘knowingly’ under New York law, the defendant must have been ‘aware’\\n\\nof the nature of his conduct and of the fact that his actions had the potential for\\n\\nharm.” Id. at 706 (quoting People v. Johnson, 95 N.Y.2d 368, 372 (2000)). “There\\n\\nmust also be proof that the harm was ‘likely to occur, and not merely possible.’”\\n\\nId. (quoting People v. Hitchcock, 98 N.Y.2d 586, 591 (2002)). The BIA reasoned that\\n\\n§ 260.10(1) was categorically a crime of child abuse, neglect, or abandonment\\n\\nbecause a conviction required “a knowing mental state coupled with an act or acts\\n\\ncreating a likelihood of harm to a child.” Id. The BIA addressed several New York\\n\\ncases applying § 260.10(1) and noted that: (1) state courts regularly dismissed\\n\\n\\n\\n\\n4In an unpublished decision that pre‐dated Soram, we expressed skepticism about whether NYPL\\n§ 260.10(1) was a crime of child abuse, but we remanded for the BIA to define a “crime of child\\nabuse” in the first instance. Guzman v. Holder, 340 F. App’x 679 (2d Cir. 2009) (summary order).\\n\\n 12\\n\\nendangerment charges or overturned convictions after determining that a\\n\\ndefendant’s conduct posed less than a likelihood of harm; and (2) the cases in\\n\\nwhich the New York courts upheld endangerment charges as facially sufficient, or\\n\\nupheld a § 260.10(1) conviction, involved factual circumstances that posed a\\n\\nlikelihood of physical, mental, or moral harm and thus fell within the BIA’s\\n\\ndefinition. Id. at 707–12. The BIA declined to consider redacted complaints and\\n\\ncharging documents in its interpretation of the scope of the New York law on the\\n\\nground that these documents were not accompanied by any proof that the charges\\n\\nled to a conviction. Id. at 707 n.4.\\n\\n III. Matthews’s Arguments on Appeal\\n\\n Matthews has two arguments. First, he challenges our decision in Florez and\\n\\nargues that we must revisit the Chevron issue in light of a recent Supreme Court\\n\\ndecision, Esquivel‐Quintana v. Sessions, 137 S. Ct. 1562 (2017), which declined to\\n\\nafford Chevron deference to the BIA’s interpretation of another INA provision\\n\\ninvolving “sexual abuse of a minor.” Second, he argues that NYPL § 260.10(1)\\n\\ndoes not fit within the broad definition of a crime of child abuse, neglect, or\\n\\nabandonment that we accepted in Florez because New York court decisions and\\n\\ncharging documents show that a conviction for endangering the welfare of a child\\n\\n\\n\\n 13\\n\\nunder NYPL § 260.10(1) requires only a slight chance of nonserious harm to a\\n\\nchild. We address these arguments in turn and conclude that both lack merit.\\n\\n A. Revisiting Florez\\n\\n “In our Circuit, panels are ‘bound by the decisions of prior panels until such\\n\\ntime as they are overruled either by an en banc panel of our Court or by the\\n\\nSupreme Court.’” United States v. Gill, 748 F.3d 491, 502 n.8 (2d Cir. 2014) (quoting\\n\\nUnited States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004)). However, a panel may\\n\\noverrule a prior decision if “there has been an intervening Supreme Court decision\\n\\nthat casts doubt on our controlling precedent.” Gelman v. Ashcroft, 372 F.3d 495,\\n\\n499 (2d Cir. 2004) (quoting Union of Needletrades, Indus. & Textile Emps. v. INS, 336\\n\\nF.3d 200, 210 (2d Cir. 2003)). Matthews argues that the Supreme Court’s 2017\\n\\ndecision in Esquivel‐Quintana casts doubt on Florez’s method of statutory\\n\\ninterpretation (the traditional two‐step Chevron analysis) and its conclusion that\\n\\nSoram’s definition of a crime of child abuse was a permissible construction of 8\\n\\nU.S.C. § 1227(a)(2)(E)(i).\\n\\n In Esquivel‐Quintana the Supreme Court interpreted 8 U.S.C.\\n\\n§ 1101(a)(43)(A), which covers the aggravated felony offense of “sexual abuse of a\\n\\nminor.” Esquivel‐Quintana, 137 S. Ct. at 1567. The issue in that case was whether\\n\\n\\n\\n 14\\n\\nstate statutory rape laws that defined a “minor” as a person under the age of\\n\\neighteen fell within the INA’s definition of sexual abuse of a minor. Id. at 1568.5\\n\\nThe Supreme Court held that they did not because the federal generic age of\\n\\nconsent in 1996 (when this INA provision was enacted) was sixteen. Id. at 1569–\\n\\n72. The Supreme Court looked to several different sources in reaching this\\n\\nconclusion. First, the structure of the INA—specifically, the fact that the sexual\\n\\nabuse of a minor offense was designated an “aggravated felony” and placed “in\\n\\nthe same subparagraph as murder and rape”—“suggest[ed] that sexual abuse of a\\n\\nminor encompasses only especially egregious felonies.” Id. at 1570 (internal\\n\\nquotation marks and citations omitted). Second, another provision of federal law,\\n\\n18 U.S.C. § 2243, that criminalized “sexual abuse of a minor or ward,” was limited\\n\\nto victims under age sixteen. Id. at 1570–71. The Court found it especially\\n\\ninstructive that Congress enacted 18 U.S.C. § 2243 “in the same omnibus law that\\n\\nadded sexual abuse of a minor to the INA.” Id. (citing Omnibus Consolidated\\n\\nAppropriations Act, 1997, §§ 121(7), 321, 110 Stat. 3009–31, 3009–627). Third, the\\n\\n\\n\\n\\n5Esquivel‐Quintana had pleaded no contest to a California statute criminalizing “unlawful sexual\\nintercourse with a minor who is more than three years younger than the perpetrator” and\\ndefining a “minor” as “a person under the age of 18 years.” 137 S. Ct. at 1567 (quoting Cal. Penal\\nCode § 261.5(c)). Thus, the minimum conduct criminalized under this statute would have been\\nconsensual sexual intercourse between a seventeen‐year‐old and a twenty‐one‐year‐old. Id.\\n\\n 15\\n\\nCourt “look[ed] to state criminal codes for additional evidence about the generic\\n\\nmeaning of sexual abuse of a minor,” and found that “[a] significant majority of\\n\\njurisdictions thus set the age of consent at 16 for statutory rape offenses predicated\\n\\nexclusively on the age of the participants.” Id. at 1571. The Court only briefly\\n\\naddressed Chevron deference at the end of its decision. Id. at 1572. The\\n\\nGovernment urged that any ambiguity in the statute should be resolved in its favor\\n\\nunder Chevron, while Esquivel‐Quintana had argued that any ambiguity should\\n\\nbe construed in his favor under the rule of lenity. Id. The Court stated that there\\n\\nwas “no need to resolve whether the rule of lenity or Chevron receives priority in\\n\\nthis case because the statute, read in context, unambiguously forecloses the\\n\\nBoard’s interpretation. Therefore, neither the rule of lenity nor Chevron applies.”\\n\\nId.\\n\\n In Esquivel‐Quintana, the Supreme Court did not reject Chevron outright or\\n\\nmandate any particular approach to statutory interpretation. At most, the\\n\\nSupreme Court’s decision reminds courts to use all available tools of statutory\\n\\nconstruction in order to discern Congress’s intent before concluding that a\\n\\nstatutory term is ambiguous and deferring to the implementing agency’s\\n\\ninterpretation. Cf. Chevron, 467 U.S. at 842 (“If the intent of Congress is clear, that\\n\\n\\n\\n 16\\n\\nis the end of the matter.”); Mizrahi, 492 F.3d at 158 (“If the statutory language is\\n\\nambiguous, . . . we resort first to canons of statutory construction, and, if the\\n\\nstatutory meaning remains ambiguous, to legislative history, to see if these\\n\\ninterpretive clues clearly reveal Congress’s intent.” (internal quotation marks,\\n\\ncitations, and brackets omitted)).6 Because the Supreme Court’s holding in\\n\\nEsquivel‐Quintana was narrow and its decision did not relate to the INA’s crime of\\n\\nchild abuse provision or mandate any particular approach to statutory\\n\\ninterpretation, it does not cast doubt on Florez.7 Cf. Correa‐Diaz v. Sessions, 881 F.3d\\n\\n523, 528 (7th Cir.), cert. denied, 139 S. Ct. 224 (2018) (“[W]e do not believe Esquivel‐\\n\\nQuintana’s limited holding overruled all of this Court’s previous decisions\\n\\n\\n\\n6A June 2018 Supreme Court decision analyzing a different INA provision also concluded that\\n“the Court need not resort to Chevron deference” if “Congress has supplied a clear and\\nunambiguous answer to the interpretive question at hand.” Pereira v. Sessions, 138 S. Ct. 2105,\\n2113 (2018). Justice Kennedy’s concurrence expressed concern that the decisions by the Courts of\\nAppeals on that issue were too quick to defer to the BIA under Chevron, and were engaging in a\\n“cursory analysis” rather than using ordinary tools of statutory construction to discern\\nCongress’s intent. 138 S. Ct. at 2120 (Kennedy, J., concurring). Justice Kennedy suggested that\\nthe Supreme Court “reconsider, in an appropriate case, the premises that underlie Chevron and\\nhow courts have implemented that decision.” Id. at 2121. However, in the absence of such\\nreconsideration, we remain bound by Chevron.\\n7Matthews overemphasizes Esquivel‐Quintana’s survey of state criminal statutes, which was only\\none of several sources the Supreme Court looked to in that case. See 137 S. Ct. at 1571 n.3 (agreeing\\nwith the Government that “this sort of multijurisdictional analysis” is not required and stating\\nthat “[i]n this case, state criminal codes aid our interpretation of ‘sexual abuse of a minor’ by\\noffering useful context.”). Because the INA’s crime of child abuse provision is not an aggravated\\nfelony (a designation that carries serious consequences such as barring most forms of relief from\\nremoval), and there is no other provision of federal law that defines a crime of child abuse, a\\nsignificant part of Esquivel‐Quintana’s statutory analysis is inapplicable to this case.\\n\\n 17\\n\\ndeferring to [the] BIA’s interpretation of ‘sexual abuse of a minor.’”). We conclude\\n\\nthat Florez remains binding, and for this reason, we continue to defer to the BIA’s\\n\\ndefinition of crime of child abuse, neglect, or abandonment as including child\\n\\nendangerment offenses that pose a sufficiently high level of risk of harm to a child.\\n\\nThe next question is whether New York’s child endangerment law fits within that\\n\\ndefinition.\\n\\n B. The Categorical Approach\\n\\n As noted above, the BIA and federal courts agree that state child\\n\\nendangerment statutes must require something more than a mere possibility of\\n\\nnonserious harm to qualify as a crime of child abuse, neglect, or abandonment\\n\\nunder the INA. See Florez, 779 F.3d at 212 (noting that the BIA’s definition “is not\\n\\nunlimited” and “requires, as an element of the crime, a sufficiently high risk of\\n\\nharm to a child”); Fregozo, 576 F.3d at 1037–38 (holding that California’s\\n\\nmisdemeanor child endangerment statute was not a crime of child abuse under\\n\\nthe INA because it did not require “any particular likelihood of harm to a child”);\\n\\nMendoza Osorio, 26 I. & N. Dec. at 711 (discussing California statute and agreeing\\n\\nthat it is not categorically a crime of child abuse). The next issue, then, is whether\\n\\nNew York’s child endangerment law requires a level of risk of harm to a child that\\n\\n\\n\\n 18\\n\\nis significant enough to qualify as a crime of child abuse, neglect, or abandonment\\n\\nunder the INA.8\\n\\n In determining whether NYPL § 260.10(1) is a crime of child abuse, we\\n\\nemploy the “categorical approach,” looking only to the text of NYPL § 260.10(1)\\n\\nand New York’s interpretation of that statute to determine whether there is a\\n\\ncategorical match with the BIA’s definition. Florez, 779 F.3d at 209–10. We use the\\n\\ncategorical approach whenever the relevant INA provision “makes aliens\\n\\nremovable based on the nature of their convictions, not based on their actual\\n\\nconduct.” Esquivel‐Quintana, 137 S. Ct. at 1567–68. The child abuse provision, 8\\n\\nU.S.C. § 1227(a)(2)(E)(i), like several other provisions of the INA, “premises\\n\\nremovability not on what an alien has done, or may have done, or is likely to do\\n\\nin the future (tempting as it may be to consider those factors), but on what he or\\n\\nshe has been formally convicted of in a court of law.” Gertsenshteyn, 544 F.3d at 145;\\n\\nsee also Velazquez‐Herrera, 24 I. & N. Dec. at 513 (discussing BIA’s application of the\\n\\ncategorical approach to § 1227(a)(2)(E)(i)).\\n\\n\\n\\n\\n8We review the BIA’s interpretation of NYPL § 260.10(1) de novo, without according Chevron\\ndeference, because state criminal law falls outside the BIA’s area of expertise. See Gill v. INS, 420\\nF.3d 82, 89 (2d Cir. 2005).\\n\\n 19\\n\\n Under this categorical approach, “[a]n alien’s actual conduct is irrelevant to\\n\\nthe inquiry, as the adjudicator must ‘presume that the conviction rested upon\\n\\nnothing more than the least of the acts criminalized’ under the state statute.”\\n\\nMellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (quoting Moncrieffe v. Holder, 569 U.S.\\n\\n184, 190–91 (2013)). We must identify the least culpable conduct that is punishable\\n\\nunder NYPL § 260.10(1) and determine whether that conduct falls within the BIA’s\\n\\ndefinition of a crime of child abuse, neglect, or abandonment. However, the\\n\\nSupreme Court has cautioned that the categorical approach’s “focus on the\\n\\nminimum conduct criminalized by the state statute is not an invitation to apply\\n\\n‘legal imagination’ to the state offense; there must be a ‘realistic probability, not a\\n\\ntheoretical possibility, that the State would apply its statute to conduct that falls\\n\\noutside the [federal] definition of a crime.’” Moncrieffe, 569 U.S. at 191 (quoting\\n\\nGonzales v. Duenas‐Alvarez, 549 U.S. 183, 193 (2007)); see also United States v. Hill,\\n\\n890 F.3d 51, 59 (2d Cir. 2018).\\n\\n The Supreme Court first announced the realistic probability standard in\\n\\n2007 in Duenas‐Alvarez, 549 U.S. 183. Duenas‐Alvarez argued that his state statute\\n\\nof conviction criminalized acts outside the generic definition and thus was not\\n\\ncategorically a removable theft offense. Id. at 190–94. In rejecting this argument,\\n\\n\\n\\n 20\\n\\nthe Court shifted the burden of proof from the Government to Duenas‐Alvarez to\\n\\ndemonstrate that, despite the apparent categorical match between the state statute\\n\\nand the generic federal definition of theft, there was a realistic probability that the\\n\\nstate would apply the state statute to conduct outside the generic definition. Id. at\\n\\n193.\\n\\n In Moncrieffe, the Supreme Court again referenced the “realistic probability”\\n\\ncomponent of the categorical approach. 569 U.S. at 206. The Court held that a\\n\\nGeorgia statute criminalizing possession with intent to distribute marijuana was\\n\\nnot categorically an aggravated felony drug trafficking offense because it\\n\\ncriminalized conduct that was punishable as a misdemeanor as well as a felony\\n\\nunder federal law. More specifically, the Georgia statute made it a crime, inter alia,\\n\\nto possess with intent to distribute small amounts of marijuana, while federal law\\n\\nrequired a sale for the crime to qualify as a felony. Id. at 193–95. The Government\\n\\nargued that the Court’s holding would “frustrate the enforcement of other\\n\\naggravated felony provisions, like § 1101(a)(43)(C), which refers to a federal\\n\\nfirearms statute that contains an exception for ‘antique firearms.’” Id. at 205. The\\n\\nCourt rejected the Government’s argument, stating that, given that “Duenas‐\\n\\nAlvarez requires that there be ‘a realistic probability . . . that the State would apply\\n\\n\\n\\n 21\\n\\nits statute to conduct that falls outside the generic definition of a crime[,]’ [t]o\\n\\ndefeat the categorical comparison in this manner, a noncitizen would have to\\n\\ndemonstrate that the State actually prosecutes the relevant offense in cases\\n\\ninvolving antique firearms.” Id. at 205–06 (internal citation omitted).\\n\\n Other than in Duenas‐Alvarez and Moncrieffe, the Supreme Court has not\\n\\nexpanded or again discussed the “realistic probability” approach in the context of\\n\\ndetermining removability. Importantly, the Supreme Court has not yet\\n\\n“specif[ied] what type of evidence may be used to satisfy the ‘realistic probability’\\n\\nrequirement.” Nicanor‐Romero v. Mukasey, 523 F.3d 992, 1005 (9th Cir. 2008),\\n\\noverruled on other grounds by Marmolejo‐Campos v. Holder, 558 F.3d 903 (9th Cir.\\n\\n2009); see also Jean‐Louis v. Att’y Gen., 582 F.3d 462, 481–82 (3d Cir. 2009). Although\\n\\nit is the Government’s burden to prove removability by clear and convincing\\n\\nevidence, 8 U.S.C. § 1229a(c)(3)(A); Woodby v. INS, 385 U.S. 276, 277, 286 (1966),\\n\\nMoncrieffe and Duenas‐Alvarez suggest that it is a noncitizen’s burden to establish\\n\\na realistic probability of being convicted for conduct outside the federal definition,\\n\\nat least in cases where the state and federal statutes appear to be a categorical\\n\\nmatch. See also Hylton v. Sessions, 897 F.3d 57, 63 (2d Cir. 2018) (concluding that\\n\\nthe BIA erred in applying “realistic probability” test where statutes were not a\\n\\n\\n\\n 22\\n\\ncategorical match, but explaining that where there is a match, the noncitizen can\\n\\n“show a ‘realistic probability’ that ‘the State would apply its statute to conduct\\n\\nthat falls outside the generic definition of a crime.’” (quoting Duenas‐Alvarez, 549\\n\\nU.S. at 193)). Because we conclude, as set forth below, that the state and federal\\n\\nstatutes are a categorical match, Matthews has the burden to show that New York\\n\\napplies NYPL § 260.10(1) to conduct that falls outside the BIA’s definition of a\\n\\ncrime of child abuse.\\n\\n C. The BIA’s Definition of a Crime of Child Abuse is a Categorial\\n Match with NYPL § 260.10(1)\\n\\n Section 260.10(1) criminalizes, as relevant here, “knowingly act[ing] in a\\n\\nmanner likely to be injurious to the physical, mental, or moral welfare of a child\\n\\nless than seventeen years old.” New York defines the requisite mens rea,\\n\\n“knowingly,” as follows: “A person acts knowingly with respect to conduct or to\\n\\na circumstance described by a statute defining an offense when he is aware that\\n\\nhis conduct is of such nature or that such circumstance exists.” NYPL § 15.05(2).\\n\\n“Likely” is defined as “probable,” “showing a strong tendency,” or “reasonably\\n\\nexpected.” Black’s Law Dictionary (10th ed. 2014). The New York Court of\\n\\nAppeals has interpreted NYPL § 260.10(1) as requiring both that the defendant\\n\\nacted “with an awareness of the potential for harm” and “that the harm was likely\\n\\n\\n 23\\n\\nto occur, and not merely possible.” People v. Hitchcock, 98 N.Y.2d 586, 590–91 (2002)\\n\\n(emphasis added); see also People v. Johnson, 95 N.Y.2d 368, 372 (2000) (“The\\n\\nLegislature specifically recognized that behavior that was likely to produce harm\\n\\nto a child’s physical, mental or moral well‐being fell within its sweep as long as\\n\\nthe defendant was aware of its potential for harm to a child.”); People v. Simmons,\\n\\n92 N.Y.2d 829, 830 (1998) (“Actual harm to the child need not result for liability\\n\\nunder the statute to attach, it being sufficient that the defendant act in a manner\\n\\nwhich is likely to result in harm to the child, knowing of the likelihood of such\\n\\nharm coming to the child.”).\\n\\n The case law illustrates that although the question of whether a defendant’s\\n\\nconduct is likely to harm a child is highly “fact specific,” evidence of likely harm\\n\\nis required to convict a defendant under NYPL § 260.10(1). Johnson, 95 N.Y.2d at\\n\\n373. In Johnson, the Court of Appeals cited “social science and psychological\\n\\nstudies,” noting “the profound adverse effect on children who witness domestic\\n\\nviolence.” Id. at 372 n.*.\\n\\n In People v. Simmons, the defendant was charged with “repeatedly directing\\n\\nvulgar remarks of a sexual nature” to a child roughly two years old. 92 N.Y.2d at\\n\\n830. The New York Court of Appeals recognized that the “child was in the\\n\\n\\n\\n 24\\n\\nformative stages of speech and learning, had some verbal cognitive abilities and\\n\\nin fact reacted to defendant’s vulgar queries, by answering ‘yes.’” Id. Under these\\n\\ncircumstances, “[t]he jury therefore may reasonably have concluded that the\\n\\ntotality of defendant’s remarks, repeated to the child over a six‐week period at a\\n\\ncrucial stage in her intellectual and social development, would have combined to\\n\\ncreate a likelihood of harm, regardless of the child’s current level of understanding.”\\n\\nId. at 831 (emphasis added). The court recognized that jurors could “draw[] upon\\n\\ntheir common human experience and commonsense understanding of the nature\\n\\nof children” to conclude that the defendant’s “remarks were likely to have caused\\n\\nthe child harm.” Id. (emphasis added). Our own jurisprudence similarly allows\\n\\njurors to rely on common sense and experience to draw inferences such as whether\\n\\na defendant acted with criminal intent. See United States v. Anderson, 747 F.3d 51,\\n\\n70 (2d Cir. 2014) (“[A]lthough the government is not permitted to build a\\n\\nconviction on a house of cards, neither is a jury required to leave its common sense\\n\\nat the courthouse door: ‘Jurors are entitled, and routinely encouraged, to rely on\\n\\ntheir common sense and experience in drawing inferences.’” (quoting United States\\n\\nv. Huezo, 546 F.3d 174, 182 (2d Cir. 2008)).\\n\\n\\n\\n\\n 25\\n\\n New York appellate courts have reversed NYPL § 260.10(1) convictions after\\n\\nfinding insufficient evidence or improper instructions regarding either a\\n\\ndefendant’s knowledge or an actual likelihood of physical, mental, or moral harm\\n\\nto a child. See People v. Hosue, 56 N.Y.S.3d 764, 767–68 (2d Dep’t 2017) (weight of\\n\\nevidence was against guilty verdict for attempted child endangerment where\\n\\ndefendant pushed his seven‐year‐old daughter’s mother during an altercation but\\n\\n“[t]here was no evidence of a history of domestic violence between the parties”);\\n\\nPeople v. Coveney, 21 N.Y.S.3d 523, 528–29 (2d Dep’t 2015) (vacating child\\n\\nendangerment conviction because there was no evidence of any nexus between\\n\\ndefendants’ conduct and a likelihood of harm to the complainant’s children);\\n\\nPeople v. Chase, 720 N.Y.S.2d 707, 709 (2d Dep’t 2000) (requiring a “true likelihood\\n\\nof injury which is not ‘speculative’” and finding that the specific circumstances of\\n\\ndefendant’s driving while intoxicated did not establish either a likelihood of harm\\n\\nor defendant’s knowledge beyond a reasonable doubt); People v. Simmons, 635\\n\\nN.Y.S.2d 373, 374 (4th Dep’t 1995) (“Because the degree of culpability required by\\n\\nthe statute is actual knowledge, it was reversible error to charge the jury that it\\n\\ncould find defendant guilty based upon what he should have known.”).\\n\\n\\n\\n\\n 26\\n\\n As the BIA discussed in Mendoza Osorio, 26 I. & N. Dec. at 707 n.3, New York\\n\\ncriminal courts have also dismissed child endangerment charges as legally\\n\\ninsufficient in cases where the prosecution failed to allege a sufficient, non‐\\n\\nspeculative risk of injury to a child. See People v. Ventura, 801 N.Y.S.2d 241, 2005\\n\\nWL 735873, at *2 (Crim. Ct. 2005) (dismissing complaint as facially insufficient\\n\\nbecause defendant’s act of taking another’s cell phone and throwing it against a\\n\\nwall did not “pose[] a likelihood of either physical or mental harm to the eleven\\n\\nand fourteen year‐olds present”); People v. Grajales, 686 N.Y.S.2d 608, 610 (Crim.\\n\\nCt. 1999) (dismissing child endangerment counts for marijuana possession because\\n\\n“the potential harm to the child cannot be merely remote or speculative in\\n\\nnature”).\\n\\n This is not a situation, therefore, in which the state statute, on its face,\\n\\nstretches further than the BIA’s definition; instead, the state statute and the BIA’s\\n\\ndefinition appear to be a categorical match.9 Compare Mendoza Osorio, 26 I. & N.\\n\\nDec. at 706 (“These elements—a knowing mental state coupled with an act or acts\\n\\ncreating a likelihood of harm to a child—fit within our definition of a ‘crime of\\n\\n\\n\\n9 To the extent that Matthews takes issue with New York’s inclusion of “moral harm” against\\nchildren, we note that the BIA’s definition also encompasses “convictions for offenses involving\\n. . . mental or emotional harm, including acts injurious to morals.” Velazquez‐Herrera, 24 I. & N.\\nDec. at 512.\\n\\n 27\\n\\nchild abuse, child neglect, or child abandonment.’”), with Mathis v. United States,\\n\\n136 S. Ct. 2243, 2251 (2016) (“[T]he elements of Mathis’s crime of conviction . . .\\n\\ncover a greater swath of conduct than the elements of the relevant [federal] offense\\n\\n. . . . Under our precedents, that undisputed disparity resolves this case.”), and\\n\\nHylton, 897 F.3d at 63 (“[T]he statutory language itself . . . creates the realistic\\n\\nprobability that a state would apply the statute to conduct beyond the generic\\n\\ndefinition.” (quoting Ramos v. U.S. Att’y Gen., 709 F.3d 1066, 1072 (11th Cir. 2013)).\\n\\n D. Matthews Has Not Demonstrated a Realistic Probability that the\\n Statute is Applied More Broadly than the BIA’s Definition\\n\\n Where a statute is not facially overbroad, the realistic probability approach\\n\\nrequires a noncitizen to demonstrate “that the State actually prosecutes the\\n\\nrelevant offense in cases” that fall outside the federal definition. Moncrieffe, 569\\n\\nU.S. at 206. Matthews must “at least point to his own case or other cases in which\\n\\nthe state courts in fact did apply the statute in the special (nongeneric) manner for\\n\\nwhich he argues.” Duenas‐Alvarez, 549 U.S. at 193.\\n\\n Matthews does not argue that the facts underlying his convictions do not\\n\\nmatch the BIA’s definition of a crime of child abuse. Rather, he argues that New\\n\\nYork courts have imposed liability for child endangerment in situations that may\\n\\nbe illustrative of “bad parenting” or other “minor missteps,” but do not actually\\n\\n\\n 28\\n\\npose a likelihood of physical, mental, or moral harm to a child. Petitioner’s Br. at\\n\\n50. He points to two categories of cases: “home alone” cases and cases involving\\n\\nthe commission of criminal activity, such as controlled substance use or\\n\\npossession, in the presence of children.\\n\\n For the “home alone” cases, Matthews and the dissent cite People v. Reyes, in\\n\\nwhich a New York criminal court denied a defendant’s motion to dismiss a child\\n\\nendangerment charge as facially insufficient. 872 N.Y.S.2d 692, 2008 WL 3010044\\n\\n(Crim. Ct. Aug. 6, 2008); see N.Y. Crim Proc. Law § 100.40(4)(b) (providing that a\\n\\nmisdemeanor complaint is sufficient on its face when its factual allegations\\n\\n“provide reasonable cause to believe that the defendant committed the offense\\n\\ncharged.”). In Reyes, the complaint alleged that a mother left her four‐year‐old\\n\\nchild home alone for about fifteen minutes in order to get groceries; although the\\n\\nmother stated that the child was asleep when she left and she remained within\\n\\nearshot, the police officer who found the child stated that the child was awake and\\n\\nopened the door for the officers, who were strangers to the child. 2008 WL\\n\\n3010044, at *1–2. The court determined that the allegations in the complaint made\\n\\nout a sufficient likelihood of harm, citing to a case where a four‐year‐old started a\\n\\nfire when left home alone for about ten minutes, and concluded that factual issues\\n\\n\\n\\n 29\\n\\nsuch as whether the child was asleep and whether the defendant remained within\\n\\nearshot were better left for trial. Id. at *3 & n.1. The court stated:\\n\\n We hold that the issue of whether there is some minimum time that a\\n child must be left alone in order to hold a defendant liable under PL\\n § 260.10(1) is ill‐suited for resolution on a motion to dismiss for facial\\n insufficiency. Among the factors which would appear appropriate\\n for consideration are the age of the child, the length of time involved,\\n the maturity of the particular child, and the reason why the child was\\n left alone.\\n\\nId. at *1. If the case proceeded to trial, the prosecution would have been put to its\\n\\nburden to convince a jury that the defendant’s conduct resulted in a likelihood of\\n\\nharm to her child and that the defendant knew that her conduct was likely to result\\n\\nin injury to her child. Reyes and other “home alone” cases illustrate that New York\\n\\ncourts are cognizant of the line between “bad parenting” and child endangerment,\\n\\nand provide prosecutors and juries with guideposts for determining when the\\n\\nfactual circumstances of a case establish culpability under NYPL § 260.10(1).10\\n\\n\\n10Similarly, although New York criminal courts are somewhat divided on whether the possession\\nand use of marijuana and other controlled substances pose a sufficient risk of harm to qualify as\\nchild endangerment, the cases distinguish between situations in which children are actually\\nexposed to controlled substances, and those in which the defendant made an effort to hide or\\nconceal the illicit substances. Compare Grajales, 686 N.Y.S.2d at 609–10 (dismissing endangerment\\ncharges on the basis that “the mere presence of mari[j]uana alone” in an apartment with children\\npresent is not enough to show a likelihood of harm), with People v. Kennedy, 904 N.Y.S.2d 577, 579\\n3rd Dep’t 2010) (affirming child endangerment conviction based on teenage daughters’ repeated\\nexposure to cocaine residue and paraphernalia in defendant’s home). Matthews, moreover, has\\nnot identified any case involving an actual child endangerment conviction that was based upon\\nan overbroad application of the statute to conduct involving the use or possession of a controlled\\n\\n\\n 30\\n\\n The dissent, by contrast, highlights Reyes and other decisions in which New\\n\\nYork trial courts upheld the sufficiency of criminal misdemeanor complaints\\n\\nbrought under Section 260.10(1) for the proposition that the state courts are\\n\\napplying the statute inconsistently and, accordingly, more broadly than the federal\\n\\ndefinition. While we appreciate the dissent’s concern that some statements by trial\\n\\ncourts may not correctly interpret the state statute, there is no question that the\\n\\nstatute, as interpreted by the New York Court of Appeals, is a categorical match\\n\\nwith the BIA’s definition, and there is no New York appellate decision cited by the\\n\\ndissent that has upheld a conviction that sweeps more broadly than the BIA\\n\\ndefinition. The dissent notes correctly that the Supreme Court has yet to articulate\\n\\nthe contours of the “realistic probability” test to argue that our analysis is not so\\n\\nlimited, but it is for this precise reason that we find ourselves constrained from\\n\\nreading these cases as contravening the interpretation espoused by New York’s\\n\\nhighest court.11\\n\\n\\nsubstance. The only controlled substance case he relies on involved a trial court’s denial of a\\nmotion to dismiss. See People v. Alvarez, 860 N.Y.S.2d 745 (Crim. Ct. 2008). In Alvarez, the court\\nrelied on the “strong odor of mari[j]uana throughout the apartment,” which implied that the\\ndefendant had been smoking marijuana while the children were present, as an aggravating factor\\nthat distinguished the case from others involving the mere possession of marijuana. Id. at 747–\\n49.\\n11In Armed Career Criminal Act (“ACCA”) cases, moreover, which also employ the categorical\\napproach and realistic probability test, the Supreme Court and other Courts of Appeals have\\n\\n\\n 31\\n\\n For similar reasons, we decline to rely upon charging documents to alter our\\n\\nanalysis. Amici have submitted several redacted arrest reports, complaints, and\\n\\nmisdemeanor informations that charge defendants with violating NYPL\\n\\n§ 260.10(1) for conduct such as: driving with a suspended license with a child in\\n\\nthe car, shoplifting while caring for an infant or toddler, leaving a nine‐year‐old\\n\\nand sleeping five‐year‐old in a car for ten minutes with the windows open, yelling\\n\\nand knocking items from a shelf in the presence of two children, and smoking\\n\\nmarijuana in a public playground while children are playing. Matthews, amici,\\n\\nand the dissent argue that these charging documents show a realistic probability\\n\\nthat New York prosecutes conduct that only poses a minimal risk of harm to\\n\\nchildren.\\n\\n The Government does not contest the authenticity of these documents,\\n\\nalthough in Matthews’s case the IJ and BIA relied on Mendoza Osorio, a\\n\\n\\n\\n\\nrecognized that federal courts are bound by the highest state court’s interpretations of state law.\\nSee Johnson v. United States, 559 U.S. 133, 138 (2010) (holding that although the meaning of ACCA’s\\nrequirement of “physical force” is a question of federal law, the Court was “bound by the Florida\\nSupreme Courtʹs interpretation of state law, including its determination of the elements of” the\\nFlorida battery statute at issue); United States v. Holloway, 630 F.3d 252, 259–60 (1st Cir. 2011)\\n(citing Johnson for the same proposition); see also United States v. Southers, 866 F.3d 364, 368 (6th\\nCir. 2017) (rejecting notion that defendant’s reliance on Tennessee intermediate appellate court\\ndecisions could satisfy “realistic probability” test to the extent that those “decisions appl[ied] the\\nTennessee robbery statute in a manner . . . inconsistent with Tennessee Supreme Court\\nprecedent.”).\\n\\n 32\\n\\nprecedential case in which the BIA refused to consider charging documents\\n\\nwithout proof of a subsequent conviction, reasoning that “a judge or jury may\\n\\nhave found that the facts as charged were insufficient to support a conviction.” 26\\n\\nI. & N. Dec. at 707 n.4. The fact that Matthews did not submit these documents to\\n\\nthe IJ or BIA prevents us from reviewing them because in the immigration context,\\n\\nwe are strictly constrained to the administrative record. 8 U.S.C. § 1252(b)(4)(A)\\n\\n(“[T]he court of appeals shall decide the petition only on the administrative record\\n\\non which the order of removal is based.”).12\\n\\n Even if we could consider these charging documents, we are not convinced\\n\\nthat they would change the outcome of this case. On the one hand, we recognize\\n\\nthe concern expressed by Matthews, amici, and the dissent that prosecutors may\\n\\nbe overcharging conduct under the child endangerment statute, and that the vast\\n\\nmajority of child endangerment charges result in guilty pleas and minimal\\n\\nsentences. The dissent argues that we can consider these charging documents, in\\n\\n\\n\\n12We have taken judicial notice of material and undisputed changes in country conditions that\\noccur between the BIA’s decision and our review, see Hoxhallari v. Gonzales, 468 F.3d 179, 185 n.5\\n(2d Cir. 2006) (per curiam), but that exception does not apply here. And Matthews and amici have\\nnot provided any information about the court proceedings in which these arrest reports and\\nmisdemeanor charges were filed, such that we might take judicial notice of those proceedings.\\nCf. Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (“[C]ourts routinely\\ntake judicial notice of documents filed in other courts, . . . to establish the fact of such litigation\\nand related filings.”).\\n\\n\\n 33\\n\\ncombination with a high incidence of guilty pleas, to infer that defendants are\\n\\npleading guilty to charges that are broader than the BIA’s definition. Amici,\\n\\nhowever, have not submitted any evidence that these charging documents led to\\n\\nconvictions (whether through guilty pleas or trial), or that any court upheld the\\n\\nallegations in these documents as facially sufficient. Without specific evidence\\n\\nlinking charging documents to guilty pleas, we have no way of knowing the\\n\\ncircumstances of the individual offenses that caused the prosecutors to bring the\\n\\ncharges or the defendants to plead to those charges. Moreover, this is not a\\n\\nsituation where we are without guidance because, as we have previously\\n\\nexplained, New York’s highest court has clarified the least‐acts‐criminalized by\\n\\nNYPL § 260.10(1) and requires a likelihood of harm to a child to support a\\n\\nconviction. For this reason, we agree with the BIA’s decision in Mendoza Osorio\\n\\nand conclude that the charging documents and the cases Matthews and the dissent\\n\\npoint to are not enough to show a realistic probability that NYPL § 260.10(1) covers\\n\\nconduct that falls outside the BIA’s definition of a crime of child abuse.13\\n\\n\\n13The dissent would grant Matthews’s petition on the additional and independent ground that\\nthe BIA’s current definition of “child abuse” cannot be applied retroactively to Matthews’s 2002\\nand 2003 state convictions. Counsel, however, has not raised this issue, and we therefore do not\\nreach it. Nor do we foreclose the possibility that another petitioner might challenge an order of\\nremoval premised on convictions that predated the BIA’s contemporaneous definition in a proper\\ncase.\\n\\n\\n 34\\n\\n CONCLUSION\\n\\n Because we hold that NYPL § 260.10(1) is a categorical match with the BIA’s\\n\\ndefinition of “crime of child abuse,” to which we owe Chevron deference, and\\n\\nbecause Matthews has not established a realistic probability that the statute\\n\\nencompasses conduct that stretches further than the BIA’s definition, we DENY\\n\\nthe petition for review.\\n\\n\\n\\n\\nSimilarly, although we appreciate the policy concerns that Matthews, amici, and the dissent have\\nthoughtfully highlighted—such as the risk of separating families or disqualifying domestic\\nviolence victims from obtaining immigration relief—these concerns are not present in Matthews’s\\ncase, and he has not presented evidence that such concerns have materialized in the context of\\nNew York’s child endangerment law.\\n\\n 35\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4407674/\", \"author_raw\": \"HALL, CIRCUIT JUDGE:\"}, {\"author\": \"CARNEY, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"CARNEY, Circuit Judge, dissenting.\\n\\n\\n I respectfully dissent.\\n\\n\\n New York Penal Law (“NYPL”) § 260.10(1) provides in relevant part, “A\\n\\nperson is guilty of endangering the welfare of a child when: (1) He or she\\n\\nknowingly acts in a manner likely to be injurious to the physical, mental or moral\\n\\nwelfare of a child less than seventeen years old. . . .” The Board of Immigration\\n\\nAppeals (“BIA”) has found the far‐ranging and vaguely contoured terms of this\\n\\nstate misdemeanor child endangerment statute to be categorically equivalent to\\n\\nthe similarly ambiguous federal definition of the phrase “crime of child abuse,\\n\\nchild neglect, or child abandonment.” Under the Immigration and Nationality\\n\\nAct (“INA”), non‐citizens convicted of crimes falling under this federal definition\\n\\nare both removable from the United States and absolutely barred from seeking\\n\\nmany forms of discretionary relief. 8 U.S.C. § 1227(a)(2)(E)(i); id. § 1229b(b)(1)(C).\\n\\n\\n Our court has previously deferred to and affirmed the agency’s legal\\n\\ninterpretations of the federal statute. See Florez v. Holder, 779 F.3d 207 (2d Cir.\\n\\n2015). Given the dramatic evolution of the BIA’s interpretation of the ambiguous\\n\\nfederal law over the past thirty years, from requiring an intentional act involving\\n\\nsome “form of cruelty to a child’s physical, moral or mental well‐being,” In re\\n\\nRodriguez‐Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999), to requiring only an act\\n\\nthat creates a “reasonable probability that the child’s life or health will be\\n\\nendangered,” Matter of Soram, 25 I. & N. Dec. 378, 385 (BIA 2010), one might\\n\\nquestion the decision to defer. But I agree with the majority that we are bound by\\n\\nthat decision.\\n\\n\\n Even accepting the BIA’s interpretation of the INA, however, the agency’s\\n\\ndecision to equate New York “child endangerment” law categorically with INA\\n\\n“child abuse”—a decision first set forth in Matter of Mendoza Osorio, 26 I. & N.\\n\\nDec. 703 (BIA 2016), and now applied to Matthews’s case—does not in my view\\n\\nhold under the analysis prescribed by the Supreme Court in Moncrieffe v. Holder,\\n\\n569 U.S. 184 (2013), and, before that, in Gonzales v. Duenas‐Alvarez, 549 U.S. 183\\n\\n(2007). Under these binding Supreme Court precedents, we must assess whether,\\n\\nin applying its criminal law to the “least of the acts criminalized” under the state\\n\\nstatute, there is a “realistic probability” that a state could successfully prosecute\\n\\nan individual for conduct that falls outside the federal definition. A review of\\n\\nstate trial court opinions and publicly available data reveals that individuals are\\n\\nconvicted under New York’s child endangerment statute for conduct that, even if\\n\\nrichly deserving of criticism, nonetheless falls outside the INA’s generic\\n\\ndefinition of a “crime of child abuse” as conceived of by the BIA.\\n\\n\\n For example, in New York, individuals have been convicted under\\n\\n§ 260.10(1) for leaving a sleeping child unattended in an apartment for at least\\n\\nfifteen minutes, People v. Reyes, 2008 WL 3010044, 872 N.Y.S.2d 692 (Crim. Ct.\\n\\n2008), repeatedly directing vulgar remarks at a toddler, People v. Simmons, 92\\n\\nN.Y.2d 829 (1998), and possessing marijuana in their residence in proximity to\\n\\nchildren, People v. Alvarez, 860 N.Y.S.2d 745 (Crim. Ct. 2008). See Guzman v.\\n\\nHolder, 340 F. App’x 679, 682 (2d Cir. 2009) (summary order) (observing that “the\\n\\n\\n 2\\n\\nNew York provision is extraordinarily broad”). Contrary to the expectation\\n\\nexpressed in Florez that a conviction under the state statute will be supported by\\n\\na “sufficiently high risk of harm,” 779 F.3d at 212,—a standard that itself floats,\\n\\nunmoored, on the fickle sea of child‐rearing conventions—state prosecutions\\n\\nhave gone forward and convictions have been secured without evidence of the\\n\\nrisk or nature of the harm posed by the ostensibly criminal conduct. See Part I,\\n\\nbelow. Similarly undercutting the BIA’s analysis, the lesser boundaries of the\\n\\nstate statute as applied to one significant category of prosecutions are unclear\\n\\neven to the state adjudicators: as New York trial courts have repeatedly\\n\\ncommented, “[t]here is no clear consensus among New York cases regarding the\\n\\nsufficiency of an accusatory instrument charging Endangering the Welfare of a\\n\\nChild regarding leaving a child alone at home or in a vehicle.” People v. Hot, 2018\\n\\nWL 652480, at *2, 94 N.Y.S.3d 539 (Crim. Ct. 2018).\\n\\n\\n In my view, these facts, supported by reliable data about how often the\\n\\nstate prosecutes the crime and obtains guilty pleas that are punished by non‐\\n\\ncarceral sentences, take the state crime significantly out of alignment with the\\n\\nINA’s definition of child abuse. They demonstrate that, for immigration law\\n\\npurposes, the crimes are not categorically equivalent.\\n\\n\\n Relying primarily on published New York state appellate decisions, the\\n\\nmajority declines to consider the full spectrum of publicly available data and\\n\\nevidence of prosecutions under the statute. But we need not be so restricted: the\\n\\ndata and the lower court decisions are largely in the public record, and the texts\\n\\nof those decisions that are nominally “unreported” are nonetheless publicly\\n\\n\\n 3\\n\\navailable. Even if Matthews may not have presented these precise data and court\\n\\ndecisions to the BIA, in assessing the “realistic probability” of prosecution under\\n\\nthe statute as we apply the categorical approach, our panel may and indeed must\\n\\nconsider such public data that reflects the reach of the statute as it is actually\\n\\napplied. These data and decisions paint a picture of prosecutions and guilty\\n\\npleas showing that the statute’s broad and ambiguous language is enforced in a\\n\\nfar more expansive, flexible, and subjective fashion than the reported case law\\n\\nmight lead one to expect. To overlook this material is to rely on a flawed\\n\\nfoundation in concluding that, as prosecuted, New York misdemeanor “child\\n\\nendangerment” is equivalent to the INA’s definition of “child abuse.”\\n\\n\\n The results of the equation are troubling: to adopt the BIA’s conclusion of\\n\\ncategorical equivalence in 2019, and to apply that conclusion retroactively, is to\\n\\nimpose consequences on guilty pleas entered years ago that were then\\n\\nunimaginable for a non‐citizen defendant. See generally Obeya v. Sessions, 884 F.3d\\n\\n442 (2d Cir. 2018); Lugo v. Holder, 783 F.3d 119 (2d Cir. 2015). To be sure, the\\n\\ncharged crime of some who were subject to such prosecutions under § 260.10(1)\\n\\nlikely fell in the heartland of the generic INA definition of “child abuse.” In such\\n\\ncases, that separation from even one’s own children may be the consequence of a\\n\\nguilty plea is no surprise; rather, it is envisioned and may be required by both\\n\\ncriminal and family law. But the conclusion seems unavoidable that, for those\\n\\nwhose charged endangerment of a child posed more attenuated, limited, or\\n\\nuncertain risks—those whose alleged neglect was leaving a sleeping child home\\n\\nalone briefly, for example; perhaps even for Matthews—the calculus of entering\\n\\na guilty plea would surely have been significantly altered had the accused\\n\\n 4\\n\\nparents known that doing so could mean risking the loss of the right to live with\\n\\ntheir own children in the United States. Although the majority’s opinion does not\\n\\nhold that the BIA may apply its ruling retroactively in all cases, today’s decision\\n\\nmeans that those parents will need to live with fear of that new risk.\\n\\n\\n Aggravating these circumstances yet further, under the INA, individuals\\n\\nconvicted of a crime of “child abuse” are categorically ineligible for the\\n\\ncancellation of removal that is otherwise available to non‐permanent residents. 8\\n\\nU.S.C. § 1229b(b)(1)(C). This discretionary form of relief requires the petitioner to\\n\\nshow that removal would effect “exceptional and extremely unusual hardship”\\n\\nto a U.S. citizen‐ or lawful permanent resident‐ child (or other qualifying\\n\\nrelative). Id. § 1229b(b)(1)(D). Today’s holding means that some individuals who\\n\\npleaded guilty to New York misdemeanor endangerment of a child, and who are\\n\\nalso able to prove that separation would cause “exceptional and extremely\\n\\nunusual hardship” to that same child, would be unable even to seek\\n\\ndiscretionary relief. I see no reason to conclude from the INA’s language or\\n\\nhistory that Congress intended that result.\\n\\n\\n The majority’s affirmance of the BIA’s erroneous conclusion also opens the\\n\\ndoor to consequences that are fundamentally at odds with Congress’s stated aim\\n\\nin enacting the immigration portions of the Violence Against Women Act\\n\\n(“VAWA”). These authorize immigration courts to provide discretionary relief\\n\\nfrom removal for individuals who have been “battered or subjected to extreme\\n\\ncruelty” by a U.S. citizen or lawful permanent resident. 8 U.S.C.\\n\\n§ 1229b(b)(2)(A)(i). But individuals convicted of a crime falling within the INA\\n\\n\\n 5\\n\\ndefinition of “child abuse” are ineligible for cancellation of removal under these\\n\\n“battered spouse or child” provisions. Id. § 1229b(b)(2)(A)(iv). This effect, too,\\n\\nsuggests the error of the agency’s analysis.\\n\\n\\n The majority thus errs, in my view, by denying Matthews’s petition.\\n\\n\\n I.\\n\\n\\n Gerard Matthews became a lawful permanent resident of the United States\\n\\nin 1989, having emigrated to this country from Ireland.1 A.R. 97. For some period\\n\\nof his residency, he has worked as a carpenter; he has consistently paid his taxes.\\n\\nId. He has been married to a U.S. citizen since 2001. Id.\\n\\n\\n In 2016, the BIA entered a removal order against him based primarily on\\n\\nhis convictions in 2002 and 2003 under the New York misdemeanor child\\n\\nendangerment statute, NYPL § 260.10(1).2 As relevant here, § 260.10(1) proscribes\\n\\na “knowing[] act[] [done] in a manner likely to be injurious to the physical,\\n\\nmental or moral welfare of a child less than seventeen years old.” For his part,\\n\\nMatthews’s unhappy predicate acts were exposing himself on public streets in\\n\\nthe proximity of minors, in 2002 and 2003. Matthews, himself a victim of child\\n\\nabuse during his youth in Ireland and who has been convicted of public\\n\\n\\n1These facts are taken from the April 7, 2016 order of the Immigration Judge finding\\nMatthews removable.\\n\\n2A prior removal order was entered against him in 2011 based on convictions that he\\nsustained in the 1990s for public lewdness, a violation of NYPL § 245.00. The order was\\nrescinded after he successfully challenged it. See Matthews v. Holder, 590 Fed. App’x 75\\n(2d Cir. 2015).\\n 6\\n\\nlewdness on other occasions not involving minors, has sought and undergone\\n\\ntreatment for his underlying disorder. A.R. 98–99.\\n\\n\\n To prevail on his petition for review, Matthews must prove that § 260.10(1)\\n\\ncriminalizes conduct falling outside the INA’s definition of a “crime of child\\n\\nabuse, child neglect, or child abandonment”—for present purposes, the operative\\n\\nphrase in the INA. 8 U.S.C. § 1227(a)(2)(E)(i).3 He may do so by demonstrating a\\n\\n“realistic probability . . . that the State would apply its statute to conduct that\\n\\nfalls outside the generic definition,” and pointing to “other cases in which the\\n\\nstate courts in fact did apply the statute in the special (nongeneric) manner.”\\n\\nGonzales v. Duenas‐Alvarez, 549 U.S. 183, 193 (2007). I believe that Matthews has\\n\\nmade that showing.\\n\\n\\n A. Defining the Generic INA Offense\\n\\n\\n Determining whether NYPL § 260.10(1) criminalizes conduct beyond the\\n\\ngeneric INA offense of child abuse requires that we first identify that generic\\n\\ndefinition.\\n\\n\\n The BIA has not made the task a simple one: its understanding of the\\n\\n“generic offense” has changed significantly over the past two decades. In the late\\n\\n1990s, the BIA focused on acts of “cruelty” to children, construing the INA\\n\\nphrase to cover “[a]ny form of cruelty to a child’s physical, moral or mental well‐\\n\\nbeing.” In re Rodriguez‐Rodriguez, 22 I. & N. Dec. 991, 996 (1999). In 2008, in Matter\\n\\n3Section 237(a)(2)(E)(i) of the INA is codified at 8 U.S.C. § 1227(a)(2)(E)(i). For the\\nreader’s convenience, I refer to 8 U.S.C. § 1227(a)(2)(E)(i), the codified section, instead of\\nthe section number in the enacted bill.\\n 7\\n\\nof Velazquez‐Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008), the agency meaningfully\\n\\nbroadened its operative definition in several respects, holding that it covered not\\n\\nonly “intentional, knowing, [or] reckless” conduct, but “criminally negligent\\n\\nact[s] or omission[s]” as well.4 Its 2008 decision appeared to emphasize the sexual\\n\\nmistreatment of children and strongly suggested that some quantum of actual\\n\\nharm or injury to a child was required:\\n\\n\\n At a minimum, this definition encompasses convictions for\\n offenses involving the infliction on a child of physical harm, even\\n if slight; mental or emotional harm, including acts injurious to\\n morals; sexual abuse, including direct acts of sexual contact, but\\n also including acts that induce (or omissions that permit) a child to\\n engage in prostitution, pornography, or other sexually explicit\\n conduct; as well as any act that involves the use or exploitation of\\n a child as an object of sexual gratification or as a tool in the\\n commission of serious crimes, such as drug trafficking.\\n\\nId.\\n\\n\\n Two years after Velazquez‐Herrera was decided, in Matter of Soram, 25 I. &\\n\\nN. Dec. 378 (BIA 2010), the agency announced that the statutory definition that it\\n\\n4The BIA’s discussion in Rodriguez‐Rodriguez was dictum. Nevertheless, the agency\\ncited its “cruelty” formulation in several non‐precedential decisions preceding\\nVelazquez‐Herrera. See, e.g., In re Pacheco Fregozo, 2005 WL 698590, at *1 (BIA 2005); In re\\nMaltez‐Salazar, 2005 WL 952489, at *1 (BIA 2005); In re Manzano‐Hernandez, 2005 WL\\n698392 at *2 (BIA 2005).\\n\\nIn turn, several Circuit courts deferred to the formulation stated in Rodriguez‐Rodriguez,\\nand this Court, in a footnote, suggested that it provided the operative definition. See\\nOchieng v. Mukasey, 520 F.3d 1110, 1114–15 (10th Cir. 2008) (deferring to Rodriguez‐\\nRodriguez); Loeza‐Dominguez v. Gonzales, 428 F.3d 1156, 1158 (8th Cir. 2005) (same);\\nNguyen v. Chertoff, 501 F.3d 107, 114 n.9 (2d Cir. 2007) (noting Rodriguez‐Rodriguez\\ndefinition).\\n 8\\n\\nwill apply is not limited to “those [offenses] requiring proof of actual harm or\\n\\ninjury to a child,” id. at 381 (emphasis added), but includes those in which the\\n\\nconduct created “a reasonable probability that the child’s life or health will be\\n\\nendangered,” id. at 384. Five years later, in Florez v. Holder, we accorded Chevron\\n\\ndeference to that expansive construction of the INA and held that a state child\\n\\nendangerment statute will be held categorically to match the INA’s generic\\n\\ndefinition if “it requires, as an element of the crime, a sufficiently high risk of\\n\\nharm to a child.” 779 F.3d 207, 212 (2d Cir. 2015).\\n\\n\\n In 2016, in Matter of Mendoza Osorio, 26 I. & N. Dec. 703 (BIA 2016), the BIA\\n\\nacknowledged that some state child endangerment statutes “do not require a\\n\\nsufficiently high risk of a harm to a child to meet the [INA’s generic] definition.”\\n\\nId. at 711. As an example, the agency cited a California law criminalizing\\n\\n“conduct that places a child ‘in a situation where his or her person or health may\\n\\nbe endangered,’” which the Ninth Circuit described as “punish[ing] ‘conduct\\n\\nthat creates only the bare potential for nonserious harm to a child.’” Id. (quoting\\n\\nFregozo v. Holder, 576 F.3d 1030, 1038 (9th Cir. 2009)). Since then, the BIA has not\\n\\nspelled out what level of risk, of what type of harm, will satisfy the generic INA\\n\\ndefinition.\\n\\n\\n Even before its decisions in Soram and Mendoza Osorio, we pointed out\\n\\n(albeit in a non‐precedential order), that the agency’s standards for the level and\\n\\ntype of risk required by the INA’s generic definition of “child abuse” have been\\n\\nevolving and expanding; its limits remain unclear. Guzman v. Holder, 340 F.\\n\\nApp’x 679 (2d Cir. 2009) (summary order); see also Martinez‐Cedillo v. Sessions, 896\\n\\n\\n 9\\n\\nF.3d 979, 999 (9th Cir. 2018) (Wardlaw, J., dissenting) (outlining history of BIA’s\\n\\nchanging position and opining that Board’s failure “to define the precise level of\\n\\nrisk required” divorces its definition from statutory text and renders its\\n\\ndefinition “judicially unadministrable and overly vague”).5 Although the\\n\\ndefinitional task admittedly is not an easy one, the BIA neither articulates the\\n\\nquantum of risk required by the generic crime nor addresses the functional\\n\\nrelationship between the gravity of the risk posed and likelihood of the risk’s\\n\\nrealization: a reasonable person might expect that the lower the harm presented\\n\\nby certain conduct, the higher the likelihood need be of its occurrence to create\\n\\ncriminal liability. For example, while it is easy to imagine all kinds of harms,\\n\\nincluding mortal harm, that could arise from leaving a sleeping four‐year‐old\\n\\nchild alone in an apartment for fifteen minutes while a parent runs to a\\n\\nneighboring store for milk, the likely harm seems minimal: this is a risk that some\\n\\nreasonable and caring parents will run if pressed by circumstances.\\n\\n\\n What is clear is that the BIA has deemed that the level of risk was adequate\\n\\nin the Colorado statute considered in Soram to meet the generic INA child abuse\\n\\ndefinition—a “reasonable probability that the child’s life or health will be\\n\\nendangered”—but inadequate in the California statute considered in Fregozo—a\\n\\nchild’s “person or health may be endangered.” Recognizing the haziness of this\\n\\nconception, one of our sister Circuits has recently concluded that a conviction\\n\\n\\n5The Ninth Circuit’s decision in Martinez‐Cedillo and Judge Wardlaw’s dissent in that\\ncase were withdrawn pending en banc review. Martinez‐Cedillo v. Barr, 918 F.3d 601 (9th\\nCir. 2019). The appeal was recently dismissed altogether as moot in light of the\\npetitioner’s death. Martinez‐Cedillo v. Barr, No. 14‐71742, 2019 WL 2136113 (9th Cir. May\\n16, 2019). I cite to Judge Wardlaw’s observations for their persuasive value alone.\\n 10\\n\\nunder a Pennsylvania child endangerment statute that “merely requires conduct\\n\\nthat could threaten a child’s welfare” does not amount to a crime of child abuse\\n\\nunder the INA’s generic definition. Zhi Fei Liao v. Attorney Gen., 910 F.3d 714, 722\\n\\n(3d Cir. 2018) (internal quotation marks omitted) (emphasis added).\\n\\n\\n With this background, I turn briefly to the text of the relevant New York\\n\\nlaw. As noted above, NYPL § 260.10(1) provides that a defendant is guilty of\\n\\nmisdemeanor child endangerment when “[h]e or she knowingly acts in a manner\\n\\nlikely to be injurious to the physical, mental or moral welfare of a child.” Unlike\\n\\nthe California statute at issue in Fregozo, § 260.10(1) by its terms criminalizes only\\n\\nconduct that is “likely” to create a physical, mental, or moral injury. In Florez, the\\n\\npetitioner did not contest the point; accordingly, we assumed without deciding\\n\\nthat the New York statute was coextensive with the federal definition, 779 F.3d at\\n\\n209, and therefore that the risk envisioned as a predicate to criminal liability was\\n\\n“sufficiently high”—a pivotal phrase whose ambiguity is obvious.\\n\\n\\n Consequently, we must determine whether, as evidenced by actual\\n\\nprosecutions and convictions, we nonetheless discern a “realistic probability”\\n\\nthat New York convicts individuals for conduct generating risks of harm of a\\n\\nlikelihood or severity below the federal threshold. See Hylton v. Sessions, 897 F.3d\\n\\n57, 64 (2d Cir. 2018) (realistic probability inquiry necessary where “the elements\\n\\nof the state statute alone do not provide sufficient guidance on its application”). I\\n\\ntherefore next address this test, and my objections to the majority’s application of\\n\\nit.\\n\\n\\n\\n\\n 11\\n\\n B. The Majority’s Application of the “Realistic Probability”\\n Test\\n\\n As the majority observes, the New York Court of Appeals has ruled that a\\n\\nconviction under § 260.10(1) requires that a defendant have acted “with an\\n\\nawareness of the potential for harm,” and “that the harm was likely to occur, and\\n\\nnot merely possible.” People v. Hitchcock, 98 N.Y.2d 586, 590–91 (2002).6 Matthews\\n\\nand his amici, however, point to numerous New York prosecutions in which the\\n\\nidentified risk of harm seems indeed to have been “merely possible.” Further,\\n\\nNew York courts appear to be divided on the likelihood of harm that the\\n\\nprosecution needs to show to secure a conviction. In my view, these prosecutions\\n\\nand the related convictions demonstrate a “realistic probability” that § 260.10(1),\\n\\nas applied, sweeps more broadly than does the INA’s generic definition of a\\n\\ncrime of child abuse.\\n\\n\\n 1) The “Home Alone” Cases and N.Y. Court Rulings on Motions\\n to Dismiss for Facial Insufficiency\\n\\n The main category cited by Matthews and amici is the “home alone”\\n\\ncases—in which a defendant is charged with violating § 260.10(1) for having left\\n\\na child unattended for some period of time. For example, in People v. Reyes, a\\n\\n\\n\\n6The majority’s application of the “realistic probability” test is largely consistent with\\nthat of the BIA in Mendoza Osorio, 26 I. & N. Dec. 703, where the agency rejected similar\\narguments raised by the respondent and held that § 260.10(1) was categorically a “crime\\nof child abuse” under the INA. Id. at 712. Because the BIA has “no expertise in\\nconstruing . . . state criminal statutes,” however, the majority rightly subjected the BIA’s\\ninterpretation of § 260.10(1) to de novo review. See Gill v. I.N.S., 420 F.3d 82, 89 (2d Cir.\\n2005). Accordingly, I refer to the majority’s conclusions rather than the agency’s in this\\ndiscussion.\\n 12\\n\\ndefendant was prosecuted for “allegedly leaving her [sleeping] four year old\\n\\nchild in an apartment, unsupervised, for at least fifteen minutes.” 2008 WL\\n\\n3010044 at *1, 872 N.Y.S.2d 692 (Crim. Ct. 2008). The defendant moved to dismiss\\n\\nthe complaint as facially insufficient as a matter of law, arguing that it did not\\n\\n“allege facts sufficient to provide reasonable cause to believe that the defendant\\n\\ncommitted the offense charged.” Id. at *2. The trial court disagreed, expressing\\n\\nthe view that “[i]t is reasonable to imagine the wide range of harm that might\\n\\nbefall a four year old child left alone [awake] in an apartment,” but cautioning at\\n\\nthe same time that factual issues such as “the age of the child, the length of time\\n\\ninvolved, the maturity of the particular child, and the reason why the child was\\n\\nleft alone” were “particularly unsuitable for determination on motion, and\\n\\nexcept in the most extreme cases, are best reserved for trial.” Id. at *1, *3.\\n\\n\\n The majority reasonably proposes that, “if [Reyes] proceeded to trial, the\\n\\nprosecution would have been put to its burden to convince a jury that the\\n\\ndefendant’s conduct resulted in a likelihood of harm to her child and that the\\n\\ndefendant knew that her conduct was likely to result in injury to her child.” Maj.\\n\\nOp. at 30. Therefore, it follows, Reyes illustrates that “New York courts are\\n\\ncognizant of the line between ‘bad parenting’ and child endangerment, and\\n\\nprovide prosecutors and juries with guideposts for determining when the factual\\n\\ncircumstances of a case establish culpability . . . .” Id.\\n\\n\\n With respect, I must disagree with that conclusion. Although the Reyes\\n\\ncourt’s decision to commit the judgment to a jury is understandable, the\\n\\n“guideposts” that the majority sees in Reyes strike me as largely illusory. While\\n\\n\\n 13\\n\\nNew York state courts have published dispositions resolving motions to dismiss\\n\\ncriminal complaints brought under § 260.10(1), as happened in Reyes, the parties\\n\\nhave pointed to no judicial statements resolving a sufficiency challenge to a\\n\\ndefendant’s conviction on “home alone” charges under § 260.10(1), and I have\\n\\nidentified none. This leaves the actual guideposts available for prosecutors\\n\\nmaking charging decisions and for defendants making plea decisions in fact\\n\\nencased in fog.\\n\\n\\n This vagueness persists, but not because New York only rarely prosecutes\\n\\n“home alone” cases under § 260.10(1) or has only recently begun to do so.\\n\\nNumerous New York courts have found criminal misdemeanor complaints\\n\\nunder § 260.10(1) facially sufficient for prosecution on facts reminiscent of Reyes.\\n\\nSee, e.g., People v. Hot, 2018 WL 652480, 94 N.Y.S.3d 539 (Crim. Ct. 2018) (toddler\\n\\nleft sleeping in car while mother shopped nearby); People v. Fielden, 2015 WL\\n\\n4460568, 18 N.Y.S.3d 581 (Crim. Ct. 2015) (infant left awake in hotel room for one\\n\\nhour); People v. Eury, 2015 WL 135097, 7 N.Y.S.3d 244 (Crim. Ct. 2015) (four or\\n\\nfive children aged under ten left alone, with four asleep, in apartment, for at least\\n\\n40 minutes); People v. Gulab, 2009 WL 1309785, 886 N.Y.S.2d 68 (Crim. Ct. 2009)\\n\\n(two children ages five and ten home alone for two hours); People v. Fraser, 2008\\n\\nWL 4866334, 875 N.Y.S.2d 822 (Crim. Ct. 2008) (security officer saw infant child\\n\\nin stroller in an apartment building hallway; defendant stated that she was\\n\\n“down the hall watching”); People v. Watson, 700 N.Y.S.2d 651, 655 (Crim. Ct.\\n\\n1999) (seven‐year‐old child home alone awake for two‐and‐a‐half hours).7 As\\n\\n\\n7Worthy of observation in connection with VAWA, with the sole exception of Watson,\\nonly women were charged in these “home alone” cases.\\n 14\\n\\nlong ago as in 1997, in People v. Cenat, 671 N.Y.S.2d 578, 580 & n.2 (Crim. Ct.\\n\\n1997), a New York trial court observed that “[o]ver the past few years the\\n\\nCriminal Court has seen a flood of cases charging Endangering the Welfare of a\\n\\nChild for leaving children of various ages ‘home alone’” and reported at the time\\n\\nthat “[t]here are over 200 [child endangerment] cases pending currently, a\\n\\nsubstantial number of which allege ‘home alone’ type allegations.”\\n\\n\\n Despite the apparent frequency of prosecutions in “home alone” cases\\n\\nover an extended period, New York courts continue to express a range of\\n\\ninconsistent judicial views about legal sufficiency. See Eury, 2015 WL 135097 at *3\\n\\n(“[E]ven the simple question of whether [an] allegation that the defendant left a\\n\\nchild or children alone for a time—without any aggravating circumstance—is\\n\\nsufficient has produced conflicting results.”); Watson, 700 N.Y.S.2d at 655\\n\\n(recognizing a “divergence in judicial views on the matter”). Matthews and amici\\n\\nprovide a compelling and plausible explanation for the persistent haziness: such\\n\\ncases are overwhelmingly unlikely to go to trial (and, consequently, even less\\n\\nlikely to present a sufficiency challenge for appellate review). For example,\\n\\naccording to the New York State Division of Criminal Justice Services, and as\\n\\nreflected in the attached chart, in 2008—the year that Reyes was decided—4,851\\n\\npeople in the State were arrested for violating § 260.10(1). Approximately 33% of\\n\\n\\n\\n\\n 15\\n\\nthe resulting prosecutions were dismissed.8 Of the remaining cases,\\n\\napproximately 80% were resolved by guilty plea.9 Only forty‐two people\\n\\n(approximately 1.3% of those whose cases were not dismissed) went to trial. Of\\n\\nthese forty‐two, twenty were convicted and twenty‐two were acquitted. Put\\n\\nanother way: of convictions obtained under § 260.10(1) in the year 2008,\\n\\nover 99% were obtained by guilty plea, resulting in no articulation at all of any\\n\\n“guideposts.”\\n\\n\\n The reported data are similar for the other years in the dataset, which\\n\\ncovers from 1990 through 2015.10 The available statistics regarding these\\n\\nprosecutions thus suggest that, unless the complaint is dismissed as facially\\n\\ninsufficient, defendants in a § 260.10(1) prosecution go to trial in about 1% of\\n\\ncases and will in approximately 80% of cases plead guilty to the charge, with no\\n\\njudicial articulation of any limits on their misdemeanor crimes.\\n\\n\\n\\n\\n8The Government has not contested the accuracy of the statistics presented by amici,\\nwhich amici advise were obtained by amicus Immigrant Defense Project from the New\\nYork State government pursuant to a request for information under New York’s\\nFreedom of Information Law. Amici Br. 23 n.8. I see no reason why they should not be\\nsubject to judicial notice. See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a\\nfact that is not subject to reasonable dispute because it: . . . can be accurately and readily\\ndetermined from sources whose accuracy cannot reasonably be questioned.”)\\n\\n9 These numbers do not add up to 100% because 359 cases remained open without\\ndisposition; 132 cases were not prosecuted; and 148 cases in the chart were simply\\nlabeled “other,” without further specification.\\n\\n10The full database cited by amici is available at\\nhttps://www.immigrantdefenseproject.org/wp‐content/uploads/2016/06/DCJS‐EWOC‐\\ndata‐arrs‐dispos‐sents.pdf (last accessed June 3, 2019).\\n 16\\n\\n These dramatic figures should not be surprising, even apart from the well‐\\n\\nknown frequency of plea bargains in the criminal justice system: the data further\\n\\nshow that, in prosecutions under § 260.10(1) from 2000 to 2015, less than 20% of\\n\\nconvictions resulted in any term of imprisonment at all; 43% of convictions led\\n\\nonly to probation or a fine; and over 35% of convictions resulted in what the state\\n\\ncalls a “conditional discharge,” meaning a non‐carceral sentence to which certain\\n\\nconditions are attached. Amici Br. 10. Significant here, by statute, a “conditional\\n\\ndischarge” embodies a judicial finding that “neither the public interest nor the\\n\\nends of justice would be served by a sentence of imprisonment” or even by\\n\\nprobation. NYPL § 65.05(1)(a). When, in over one‐third of prosecutions brought\\n\\nunder the statute, the sentence for pleading guilty is of this type (and is\\n\\nunderstood to bear no immigration consequences), a defendant has little\\n\\nincentive to contest the charges or proceed to trial.\\n\\n\\n Despite these data, the majority’s approach appears to require Matthews to\\n\\nshow that a § 260.10(1) defendant charged with conduct outside the INA’s\\n\\ngeneric definition could be convicted at trial and have his conviction upheld on\\n\\nappellate review. Absent that appellate statement, the construction of the statute\\n\\nthat underlies his conviction has little import, the reasoning would go.\\n\\n\\n This approach is certainly defensible as a formal matter: after all, the New\\n\\nYork state courts, not its prosecutors (or the local federal courts), have the final\\n\\nword on the correct construction of New York laws. But the Supreme Court has\\n\\nnever described the “realistic probability” test in these terms, nor in my\\n\\nestimation does it make sense to require such a showing here. Rather, in Duenas‐\\n\\n\\n 17\\n\\nAlvarez, the Court required only a showing that “the State would apply its statute\\n\\nto conduct that falls outside the generic definition.” 549 U.S. at 193 (emphasis\\n\\nadded). More recently, in Moncrieffe, the Court required a showing that “the State\\n\\nactually prosecutes the relevant offense” in a fashion that is inconsistent with the\\n\\ngeneric offense. 569 U.S. at 206 (emphasis added). To import into the Court’s\\n\\n“realistic probability” test a requirement that the state appellate courts describe\\n\\nthe farthest contours of the state law’s application strikes me as both unworkable\\n\\nand inappropriate, particularly in the context of a misdemeanor crime, and\\n\\nwhere (as here) courts are unlikely ever to have the opportunity to do so. An\\n\\napproach that by definition focuses on only the 0.8% of convictions that are\\n\\nsecured following a jury trial (and the even smaller percentage that are\\n\\nsubsequently upheld on appellate review) will necessarily fail to grasp “the\\n\\nelements of the offense in practice.” Whyte v. Lynch, 807 F.3d 463, 469 (1st Cir.\\n\\n2015).\\n\\n\\n The Supreme Court has not as yet applied, and we are rarely, if ever,\\n\\ncalled upon to apply the “realistic probability” test to misdemeanor statutes that\\n\\ncriminalize conduct that is punished so leniently as the mine‐run of prosecutions\\n\\nunder § 260.10(1). But because the analysis that we undertake requires us to\\n\\nidentify “the least of the acts criminalized under the state statute,” Mellouli v.\\n\\nLynch, 135 S. Ct. 1980, 1986 (2015) (internal quotation marks omitted), and\\n\\nbecause the immigration consequences will be so severe, we must examine all\\n\\navailable and reliable evidence regarding related convictions to ensure the\\n\\naccuracy of the New York endangerment statute’s asserted match with the\\n\\ngeneric federal definition.\\n\\n 18\\n\\n If the allegations in Reyes, discussed above, were deemed sufficient to\\n\\nsurvive a motion to dismiss, the case suggests that some defendants (indeed,\\n\\nbased on the statistical evidence before us, possibly many defendants) have\\n\\npleaded guilty to similar offense conduct. The only remaining question, then, is\\n\\nwhether the conduct alleged in Reyes and similar “home alone” cases more\\n\\nclosely approximates conduct creating the “sufficiently high risk of harm to a\\n\\nchild” we required in Florez or the “bare potential for nonserious harm”\\n\\ndescribed by the Ninth Circuit in Fregozo and distinguished by the BIA in\\n\\nMendoza Osorio, 26 I. & N. Dec. at 711. Even drawing all factual inferences in\\n\\nfavor of the prosecution in these cases, in my view the nature of the allegations\\n\\npresented and the judicial comments elicited seem far more consistent with the\\n\\nspeculative “may be endangered” standard found wanting in Fregozo (or the\\n\\n“conduct that could threaten a child’s welfare” found similarly insufficient by\\n\\nthe Third Circuit in Liao, 910 F.3d at 722), than the “sufficiently high risk of harm\\n\\nto a child” that we demanded in Florez.11\\n\\n\\n11Tending to reinforce this conclusion, New York courts have accepted remarkably slim\\n“risk of harm” showings in some § 260.10(1) prosecutions. For example, in People v.\\nSimmons, 92 N.Y.2d 829 (1998), the New York Court of Appeals upheld the\\nendangerment conviction of a child care worker who “repeatedly direct[ed] vulgar\\nremarks of a sexual nature” at a two‐year‐old child. Id. at 830. On appeal, the defendant\\nchallenged the scant record evidence regarding the likelihood of harm inflicted on the\\nchild. Rejecting that challenge, the court explained that, “regardless of the child’s\\ncurrent level of understanding,” the jury needed no evidence on the issue of harm, but\\ncould rely on its “common human experience and commonsense understanding of the\\nnature of children” to conclude that the remarks were “likely to have caused the child\\nharm, and that defendant knew that her remarks were likely to cause the child to suffer\\nharm.” Id. at 831.\\n\\n\\n\\n 19\\n\\n For these reasons, I conclude that Matthews has carried his burden of\\n\\nshowing a “realistic probability” that New York prosecutes conduct under\\n\\n§ 260.10(1) that falls outside the INA’s generic definition of child abuse. I would\\n\\ngrant his petition for review on this basis.\\n\\n\\n 2) Import of the Charging Documents Presented by Amici\\n\\n\\n In similar vein, Matthews’s amici have presented several arrest reports,\\n\\ncomplaints, and misdemeanor informations—the authenticity of which the\\n\\nGovernment does not contest—as reflecting New York State decisions to charge\\n\\nvarious individuals with state child endangerment misdemeanor violations for\\n\\nconduct such as: (1) driving with a suspended license while a minor child is in\\n\\nthe car (Amici App. 2); (2) “yell[ing] and swing[ing] his backpack” in a store and\\n\\nknocking objects off shelves, thereby injuring a child (Amici App. 9–10); and (3)\\n\\n\\n\\n\\nJudge Titone observed in dissent that the prosecution itself had “put forth proof that the\\nyoung girl here did not understand appellant’s lewd questions,” and opined that the\\njury had “no evidentiary basis . . . to conclude that the young girl would likely be\\nharmed”; rather, the “evidence pointed only to the conclusion that the child here was\\nnothing more than a baby who was capable of mouthing the words ‘yes, yes’ but said\\nthis to ‘everything’ regardless of context or content.” Id. at 832 (Titone, J., dissenting).\\n\\nIn my view, the Simmons decision and cases of this ilk provide another persuasive\\nindication that state prosecutors apply NYPL § 260.10(1) outside the generic federal\\ndefinition.\\n\\n\\n\\n 20\\n\\nshoplifting while accompanied by children (Amici App. 12, 14, 16).12 None of the\\n\\ncharged conduct is commendable, to be sure, and under the “moral welfare”\\n\\nportion of the New York statute, prosecution may have been justifiable.\\n\\n\\n But the majority’s position must be that, absent any evidence that the\\n\\nallegations in the charging documents ever led to convictions or were upheld by\\n\\nstate courts as facially sufficient, these documents, too, do not suggest that\\n\\nindividuals in New York have a “realistic probability” of conviction under\\n\\n§ 260.10(1) for conduct falling outside the INA’s generic definition of “child\\n\\nabuse.” See Maj. Op. at 32–34. Such documents alone may not be sufficient to\\n\\ncarry Matthews’s burden, it is fair to say. But the broad range of conduct that\\n\\nthey reflect as warranting state criminal charges further suggests that the statute\\n\\n\\n\\n\\n12The majority accepts the government’s argument that we should not consider these\\ncharging documents because Matthews did not introduce them into the administrative\\nrecord below. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide the\\npetition only on the administrative record on which the order of removal is based.”).\\nBut introducing such documents into the record below would have been futile. By the\\ntime Matthews was ordered removed by the Immigration Judge in April 2016 based on\\nhis two aged § 260.10(1) convictions, the BIA had already decided in Mendoza Osorio\\nthat the New York statute was categorically a crime of child abuse. And in Mendoza\\nOsorio—a decision that we did not have the opportunity to review directly—the BIA\\nwas presented with, and refused to consider, similar charging documents. 26 I. & N.\\nDec. at 707 n.4. Although they were not incorporated into the administrative record, I\\nsee no unfairness or impropriety in considering their implications. The BIA was familiar\\nwith this public record evidence from the proceedings in the context of its Mendoza\\nOsorio decision, and the documents do not concern factual matters on which credibility\\nwas an issue or testimony appropriate.\\n\\n 21\\n\\nhas been used to charge conduct less than the generic INA definition of a crime\\n\\nof child abuse.13\\n\\n\\n In sum, the charging documents adduced by amici illustrate further that,\\n\\nin addition to the “home alone” cases discussed above, New York State pursues\\n\\nprosecutions and secures convictions under § 260.10(1) in situations that, while\\n\\ndoing no credit to the individuals convicted, “‘creat[e] only the bare potential for\\n\\nnonserious harm to a child.’” Mendoza Osorio, 26 I. & N. Dec. at 711 (quoting\\n\\nFregozo, 576 F.3d at 1038). This, too, reinforces the conclusion that Matthews has\\n\\ndemonstrated a “realistic probability” that the statute is more broadly applied\\n\\nthan the INA offense.\\n\\n\\n II.\\n\\n\\n Beyond its unduly constrained analysis of the realities of NYPL § 260.10(1),\\n\\nthe BIA’s holding that Matthews is removable suffers from another troubling\\n\\nflaw. The agency’s determination to apply its categorical equation of New York\\n\\nchild endangerment with the INA definition of “child abuse” retroactively to\\n\\nMatthews and to others, newly rendering them deportable, can be expected to\\n\\nhave a devastating effect on those who pleaded guilty to the New York\\n\\n\\n13Although it did not survive appellate review, one particular reported conviction also\\ntends to confirm the impression created by amici’s submissions that the statute is\\ncharged broadly and on occasion idiosyncratically. In this odd case, a horse‐farm owner\\nwas convicted after a bench trial of violating § 260.10(1) “after she injected a dog with a\\ntranquilizer in the presence of a child.” People v. Kanciper, 954 N.Y.S.2d 146, 147 (2d\\nDep’t 2012). The case history demonstrates that a prosecutor may charge (and secure\\nthe conviction of) an individual on allegations where the harm to the child is highly\\nspeculative.\\n 22\\n\\nmisdemeanor years ago, understanding then that the likely consequence would\\n\\nbe only probation or conditional discharge. The parties did not pursue the\\n\\nimplications of this observation in their briefs on appeal here. But the agency has\\n\\nnot proposed that its equation of New York law and the INA’s generic definition\\n\\nhas only prospective force, and its actions with regard to Matthews surely\\n\\ndemonstrate the contrary.\\n\\n\\n We recently re‐affirmed the following statement of five factors that we\\n\\n“weigh . . . to determine whether an agency may apply a new rule retroactively”:\\n\\n\\n (1) whether the case is one of first impression, (2) whether the new\\n rule presents an abrupt departure from well‐established practice or\\n merely attempts to fill a void in an unsettled area of law, (3) the\\n extent to which the party against whom the new rule is applied\\n relied on the former rule, (4) the degree of the burden which a\\n retroactive order places on a party, and (5) the statutory interest in\\n applying a new rule despite the reliance of a party on the old\\n standard.\\n\\nObeya v. Sessions, 884 F.3d 442, 445 (2d Cir. 2018) (quoting Lugo v. Holder, 783 F.3d\\n\\n119, 121 (2d Cir. 2015)). In Obeya, we also clarified that, “when conducting\\n\\nretroactivity analysis in the immigration context, we look to whether it would\\n\\nhave been reasonable for a criminal defendant to rely on the immigration rules in\\n\\neffect at the time that he or she entered a guilty plea.” Id. at 448; see also Velasquez‐\\n\\nGarcia v. Holder, 760 F.3d 571, 582 (7th Cir. 2014) (applying similar retroactivity\\n\\nanalysis). In the case of individuals who entered guilty pleas in New York under\\n\\n§ 260.10(1) before today—and especially those who did so before Soram was\\n\\ndecided—it is easy to conclude that they could have reasonably relied on the\\n\\n\\n 23\\n\\n“immigration rules in effect at the time,” in Obeya’s phrase, and expected no\\n\\nimmigration consequences at all from their guilty plea to misdemeanor child\\n\\nendangerment that garnered a sentence of probation or conditional discharge.\\n\\n\\n Here, as in Obeya, the first and fourth Lugo factors “are not seriously at\\n\\nissue in the case before us”; both favor Matthews. 884 F.3d at 445. As set forth in\\n\\nPart I, the interpretation of the INA’s generic definition of “child abuse” is not a\\n\\nmatter of first impression for the BIA, and the burden of retroactive\\n\\napplication—removal from the United States—is drastic. Accordingly, here, also\\n\\nas in Obeya, the “heart of this case rests with the second and third Lugo factors,”\\n\\nthat is, whether Soram (and Mendoza Osorio) marked “abrupt departure[s]” from\\n\\nthe BIA’s “well‐established practice,” and whether Matthews reasonably relied\\n\\non the “former rule.” Id.\\n\\n\\n Between 1999 and 2008, as observed in Part I, the BIA’s sole statement\\n\\nconcerning the generic federal definition was that it encompassed “[a]ny form of\\n\\ncruelty to a child’s physical, moral or mental well‐being.” Rodriguez‐Rodriguez, 22\\n\\nI. & N. Dec. at 996; see also Velazquez‐Herrera v. Gonzales, 466 F.3d 781, 783 (9th Cir.\\n\\n2006) (“The source Rodriguez‐Rodriguez consulted, Black’s Law Dictionary 405\\n\\n(8th ed. 2004), defines ‘cruelty’ as ‘[t]he intentional and malicious infliction of\\n\\nmental or physical suffering on a living creature.’”). Then, in 2008, the BIA\\n\\nlowered the requisite mens rea to criminal negligence. See Velazquez‐Herrera, 24 I.\\n\\n& N. Dec. at 511–12 n.13 (repudiating Rodriguez‐Rodriguez’s reliance on Black’s\\n\\nLaw Dictionary’s definition of “cruelty,” and holding that under “the weight of\\n\\nFederal and State authority in effect in 1996 . . . criminally negligent acts\\n\\n\\n 24\\n\\nsufficed”). But even Velazquez‐Herrera retained the suggestion that “the infliction\\n\\non a child of . . . harm, even if slight” was a necessary element of the generic\\n\\noffense. Id. at 512. Only in 2010, in Soram, did the BIA finally state its current\\n\\nview that “actual harm or injury to the child” was not required as an element of\\n\\nthe generic crime. 25 I. & N. Dec. at 381.\\n\\n\\n In this context, where the BIA has materially changed its interpretation of\\n\\nthe generic offense, the second Lugo factor—whether there has been an “abrupt\\n\\ndeparture”—weighs in favor of Matthews. Consequently, because “[t]here can be\\n\\nlittle doubt that, as a general matter, alien defendants considering whether to\\n\\nenter into a plea agreement are acutely aware of the immigration consequences\\n\\nof their convictions,” INS v. St. Cyr, 533 U.S. 289, 322 (2001), the third Lugo factor\\n\\nfavors Matthews as well. It is fair, then, to conclude that Matthews’s 2002 and\\n\\n2003 convictions should not render him deportable under the contemporaneous\\n\\nBIA interpretation, on which he could have reasonably relied.\\n\\n Accordingly, even if I agreed with the merits of the BIA’s recent alignment\\n\\nof § 260.10(1) and the generic federal definition, I would still hold that, under\\n\\nObeya and Lugo, this rule could not be applied retroactively to Matthews and\\n\\nthose similarly situated. I would grant his petition for review on this ground as\\n\\nwell. The majority does not address this question and its opinion should not\\n\\nforeclose other individuals from challenging the BIA’s retroactive application of\\n\\nits definition to them.\\n\\n\\n\\n\\n 25\\n\\n III.\\n\\n Even apart from retroactivity concerns, the implications of the BIA’s\\n\\ninterpretation of § 260.10(1) that the majority affirms here today reach well\\n\\nbeyond Matthews’s case. In addition to being at odds with the “realistic\\n\\nprobability” analysis, the holding leads to harsh results that I believe are unlikely\\n\\nto have been intended by Congress.\\n\\n\\n As the BIA recounted in Matter of Velazquez‐Herrera, when passing the\\n\\nstatute that added “a crime of child abuse, child neglect, or child abandonment”\\n\\nto the list of offenses rendering an individual deportable, Congress “clearly\\n\\nintended to single out those who have been convicted of maltreating or preying\\n\\nupon children.” 24 I. & N. Dec. at 509. We have been alerted to no basis for\\n\\nconcluding that, in so doing, Congress also intended to render deportable parents\\n\\nwho, in a possible violation of a state child endangerment statute and in a\\n\\ndisplay of bad judgment, leave their child alone briefly, commit minor offenses\\n\\nin the presence of a child, or engage in other conduct that might allow for the\\n\\npossibility of relatively minor harm befalling a child. Surely such acts fall outside\\n\\nof the general understanding of “child abuse,” even broadly interpreted.\\n\\n\\n Indeed, the BIA has adduced no evidence that Congress (in enacting 8\\n\\nU.S.C. § 1227(a)(2)(E)(i)), the New York legislature (in enacting § 260.10(1)), or\\n\\nthe New York judiciary (in leniently sentencing § 260.10(1) violations) desired or\\n\\neven recognized that permanent family separation could be triggered by such\\n\\nlapses in judgment in childrearing, as blameworthy as they may be. See Martinez‐\\n\\nCedillo, 896 F.3d at 1002 (Wardlaw, J., dissenting) (“It should not be lost on us\\n\\n 26\\n\\nthat, while we fault [Respondent] for endangering his son, we simultaneously\\n\\ncondone the separation of a family, exiling a father of two children who has\\n\\nresided in the United States lawfully for more than twenty‐five years. That\\n\\nCongress did not intend such a result is apparent from these facts.”).14\\n\\n\\n Paradoxically, it is children who will suffer harm under the agency’s\\n\\ninterpretation of § 260.10(1)—a law intended for their protection. In addition to\\n\\nsubjecting lawful permanent residents to deportation, under the agency’s rule,\\n\\nnon‐permanent residents become not only removable but also statutorily\\n\\nineligible for cancellation of removal because of such a conviction. See 8 U.S.C.\\n\\n§ 1229b(b)(1)(C) (excluding aliens “convicted of an offense under section . . .\\n\\n1227(a)(2)” from such relief). Even in cases where a non‐permanent resident can\\n\\notherwise prove that removal would result in exceptional and extremely unusual\\n\\nhardship to U.S. citizen or lawfully resident children, the agency’s position,\\n\\naffirmed by the majority, will compel the immigration courts to deny them relief.\\n\\nSee id. § 1229b(b)(1)(D); Matter of Monreal, 23 I. & N. Dec. 56, 62 (BIA 2001) (to\\n\\nqualify for such relief, “the hardship to an alien’s [children], if the alien is obliged\\n\\nto leave the United States, must be ‘substantially’ beyond the ordinary hardship\\n\\nthat would be expected when a close family member leaves this country”). It\\n\\nrequires no exercise of judicial imagination to conclude that a child will be\\n\\nharmed by being separated from a parent, who, even if imperfect, is generally\\n\\ncompetent and caring.\\n\\n\\n\\n\\n14 See note 5, supra, for Martinez‐Cedillo’s subsequent appellate history.\\n 27\\n\\n I am also concerned that another vulnerable group will be harmed by this\\n\\nresult as well—victims of domestic violence. Under the BIA’s interpretation, a\\n\\nconviction under § 260.10(1) will also render a noncitizen ineligible for\\n\\ncancellation of removal under the “battered spouse or child” provisions of\\n\\nVAWA. See 8 U.S.C. § 1229b(b)(2)(A)(iv) (excluding individuals deportable under\\n\\n“paragraphs . . . (2) through (4) of section 1227(a)” from relief). This provision\\n\\nallows an immigration court, subject to certain conditions, to grant cancellation\\n\\nof removal to individuals who have been “battered or subjected to extreme\\n\\ncruelty” by a spouse who is a U.S. citizen or lawful permanent resident. Id.\\n\\n§ 1229b(b)(2)(A). The statute’s text and legislative history offer strong signals that\\n\\nCongress intended VAWA’s immigration‐related provisions to serve as a safety\\n\\nvalve aimed at preventing victims of domestic violence who depend on a spouse\\n\\nfor immigration status from becoming trapped in violent relationships.15 It seems\\n\\nextremely unlikely that Congress intended that domestic violence victims\\n\\npreviously convicted of a minor child endangerment misdemeanor be barred\\n\\n\\n15The Report of the House Committee on the Judiciary accompanying the legislation\\nexplained:\\n\\n Domestic battery problems can become terribly exacerbated in marriages\\n where one spouse is not a citizen, and the non‐citizen[’]s legal status\\n depends on his or her marriage to the abuser. Current law fosters\\n domestic violence in such situations by placing full and complete control\\n of the alien spouse’s ability to gain permanent legal status in the hands\\n of the citizen or lawful permanent resident spouse. . . . Consequently, a\\n battered spouse may be deterred from taking action to protect himself or\\n herself, such as filing for a civil protection order, filing criminal charges,\\n or calling the police, because of the threat or fear of deportation.\\n\\nH. R. Rep. 103‐395 at 26, 1993 WL 484760 (1993).\\n 28\\n\\nfrom relief when it created VAWA’s immigration‐related remedies, years before\\n\\nthe BIA’s definition of a crime of “child abuse, child neglect, or child\\n\\nabandonment” expanded in Soram, in 2010, to reach its current capacious state.\\n\\n\\n In sum, the majority affirms an agency ruling that inflicts an array of\\n\\ntroubling collateral consequences on a broad class of non‐citizens. That Congress\\n\\nso intended, sub silentio, by making a crime of “child abuse” a removable offense\\n\\nstrikes me as implausible. These considerations, too, support the conclusion\\n\\nreached in Parts I and II that Matthews’s petition for review should be granted.\\n\\n\\n * * *\\n\\n\\n Our country’s immigration laws address the tension between promoting\\n\\npublic safety by removing non‐citizens who have violated our criminal laws in a\\n\\ndomestic setting, on one hand, and pursuing the “underlying intention . . .\\n\\nregarding the preservation of the family unit,” Nwozuzu v. Holder, 726 F.3d 323,\\n\\n332 (2d Cir. 2013) (quoting H.R. Rep. No. 82‐1365 (1952)), on the other. We have\\n\\nacknowledged that one of the law’s goals is “to keep families intact where\\n\\npossible.” Nwozuzu, 726 F.3d at 332; see also Ibarra v. Holder, 736 F.3d 903, 918 n.20\\n\\n(10th Cir. 2013) (declining to defer to the BIA’s ruling in Soram and declaring,\\n\\n“[O]ne of the purposes of the INA is ‘keeping families of United States citizens\\n\\nand immigrants united,’ not just deporting people.” (internal citation omitted)).\\n\\n\\n In its incorrect ruling that New York misdemeanor child endangerment\\n\\nlaw is equivalent to the INA’s generic definition of child abuse, the BIA ignores\\n\\nthe real‐world application of the New York statute. It also averts its eyes from the\\n\\n\\n 29\\n\\nreal‐world effect of its decision: the needless and potentially permanent\\n\\nseparation of children from their parents. Retroactive application of the agency’s\\n\\nruling will run afoul of the principles that we established in Lugo and Obeya. Its\\n\\nprospective application will inflict needless suffering on some of the most\\n\\nvulnerable members of our society.\\n\\n\\n For these reasons, I respectfully dissent.\\n\\n\\n\\n\\n 30\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4407674/\", \"author_raw\": \"CARNEY, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"HALL"},"judge2":{"kind":"string","value":"CARNEY"},"judge3":{"kind":"string","value":"KOELTL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":2,"string":"2"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4630421/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":1,"string":"1"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Gerard Patrick MATTHEWS, Petitioner, v. William P. BARR, United States Attorney General, Respondent.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-06-18\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n16‐3145\nMatthews v. Barr\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n August Term, 2017\n\n (Argued: May 9, 2018 Decided: June 18, 2019)\n\n Docket No. 16‐3145\n________________________________________________________________________\n\n GERARD PATRICK MATTHEWS,\n\n Petitioner,\n\n ‐ v. ‐\n\n WILLIAM P. BARR, United States Attorney General,\n\n Respondent.\n________________________________________________________________________\n\nBefore:\n HALL and CARNEY, Circuit Judges, KOELTL, District Judge.1\n\n Petitioner seeks review of a decision of the Board of Immigration Appeals,\naffirming a decision of an Immigration Judge that found Petitioner removable and\ndenied Petitioner’s applications for cancellation of removal and adjustment of\nstatus. The agency determined that Petitioner’s New York convictions for\nendangering the welfare of a child were crimes of child abuse, child neglect, or\nchild abandonment under the Immigration and Nationality Act, and denied relief\nfrom removal as a matter of discretion. Because we have previously upheld the\ndetermination of the Board of Immigration Appeals that child endangerment\noffenses fall within the Immigration and Nationality Act’s crime of child abuse\nprovision, and we agree that New York law—which criminalizes conduct that\n\n1Judge John G. Koeltl, of the United States District Court for the Southern District of New York,\nsitting by designation.\n\nposes a likelihood of physical, mental, or moral harm to a child—falls within the\nBIA’s definition, we DENY the petition.\n\n Petition for review DENIED.\n\n Judge Carney dissents in a separate opinion.\n\n\n\n DAVID J. ZIMMER, Goodwin Procter LLP, Boston,\n MA (William M. Jay, Goodwin Procter LLP,\n Washington, D.C.; Seymour W. James, Jr.,\n Attorney‐in‐Chief, Hasan Shafiqullah, Attorney‐in\n Charge, Ward J. Oliver, Supervising Attorney,\n Immigration Law Unit, The Legal Aid Society,\n New York, NY, on the brief), for Petitioner.\n\n SONG PARK, Senior Litigation Counsel, Office of\n Immigration Litigation, Civil Division (Chad A.\n Readler, Acting Assistant Attorney General, Cindy\n S. Ferrier, Assistant Director, on the brief), United\n States Department of Justice, Washington, D.C., for\n Respondent.\n\n ANDREW WACHTENHEIM, Immigrant Defense\n Project, New York, NY, for Amici Curiae Brooklyn\n Defender Services, Queens Law Associates,\n Neighborhood Defender Service of Harlem, The\n Bronx Defenders, Essex County Public Defender’s\n Office, Monroe County Public Defender’s Office,\n Immigrant Defense Project.\n\n\n\n\n 2\n\nHALL, CIRCUIT JUDGE:\n\n Petitioner Gerard Patrick Matthews seeks review of an August 2016 decision\n\nof the Board of Immigration Appeals (“BIA”), affirming an April 2016 decision of\n\nan Immigration Judge (“IJ”) that ordered Matthews removed to Ireland on the\n\nground that his convictions for endangering the welfare of a child under New York\n\nPenal Law (“NYPL”) § 260.10(1) made him removable under Immigration and\n\nNationality Act (“INA”) § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), which\n\nprovides that “[a]ny alien who at any time after admission is convicted of . . . a\n\ncrime of child abuse, child neglect, or child abandonment is deportable.”\n\nMatthews argues that he is not removable because the New York statute of\n\nconviction is not categorically a crime of child abuse under the INA. First, he\n\nargues that the INA’s definition of crime of child abuse requires that there be\n\nactual harm to a child, or at least a high risk of serious injury. He challenges the\n\nBIA’s definition, which encompasses state child endangerment offenses that\n\ninvolve a sufficiently high risk of physical, mental, or moral harm to a child.\n\nBecause we have deferred to the BIA’s definition as a reasonable interpretation of\n\nthe crime of child abuse provision in a precedential decision, Florez v. Holder, 779\n\nF.3d 207 (2d Cir. 2015), and we find no basis for departing from that decision, we\n\n\n\n 3\n\nreject Matthews’s first argument and continue to apply the BIA’s definition of\n\ncrime of child abuse. Second, Matthews argues that the New York child\n\nendangerment law, NYPL § 260.10(1), stretches even further than the BIA’s broad\n\ndefinition because the statute and New York courts’ interpretation of it allow for\n\nconvictions based on conduct that poses only a minimal risk of nonserious harm\n\nto a child. We reject this argument as well: NYPL § 260.10(1)’s text and New York\n\ncourt decisions applying the statute require proof of a knowing mental state and a\n\nlikelihood of harm, and Matthews has not shown a realistic probability of\n\nconviction for conduct that does not pose a likelihood of harm.\n\n We DENY the petition for review.\n\n BACKGROUND\n\n Petitioner Gerard Patrick Matthews is a native and citizen of Ireland who\n\nhas lived in the United States as a lawful permanent resident since 1989.\n\nMatthews, who was physically and sexually abused as a child, has a long history\n\nof alcoholism and has repeatedly exposed himself in public while intoxicated.\n\nBetween 1990 and 2011, these public exposure incidents resulted in at least nine\n\nconvictions for public lewdness and two convictions for endangering the welfare\n\n\n\n\n 4\n\nof a child under New York Penal Law (“NYPL”) § 260.10(1).2 Section § 260.10(1)\n\nprohibits, as relevant here, “knowingly act[ing] in a manner likely to be injurious\n\nto the physical, mental or moral welfare of a child less than seventeen years old.”\n\nMatthews was convicted in 2002 of violating NYPL § 260.10(1) and was sentenced\n\nto six months’ imprisonment. In 2003, he pleaded guilty to another NYPL\n\n§ 260.10(1) violation as well as a public lewdness charge under NYPL § 245.00 and\n\nwas sentenced to concurrent terms of imprisonment of one year and 90 days,\n\nrespectively. Matthews testified at his removal hearing that he never intentionally\n\ntargeted children when he engaged in publicly lewd behavior; rather, he targeted\n\nadults, and the child endangerment charges were tacked onto his public lewdness\n\ncharges because children happened to be present. However, the IJ did not credit\n\nMatthews’s accounts of the circumstances of these convictions because they were\n\nin stark contrast to the criminal complaints, which alleged that he targeted a nine‐\n\nyear‐old boy in one case and two teenage girls in the other.\n\n In 2011, the Department of Homeland Security placed Matthews in removal\n\nproceedings through service of a Notice to Appear (“NTA”). The NTA charged\n\nMatthews as removable on the ground that his New York convictions for\n\n\n2Matthews also has a 1995 conviction for third‐degree assault under NYPL § 120.00, for which he\nwas sentenced to three years’ probation. This conviction was not charged as a basis for removal.\n\n 5\n\nendangering the welfare of a child were crimes of child abuse, child neglect, or\n\nchild abandonment under 8 U.S.C. § 1227(a)(2)(E)(i). An IJ initially granted\n\nMatthews discretionary relief from removal, but the BIA overturned that ruling in\n\n2013. Matthews petitioned for review, and we remanded the case for the agency\n\nto explain fully its denial of relief. Matthews v. Holder, 590 F. App’x 75 (2d Cir.\n\n2015). We declined to consider Matthews’s then‐unexhausted argument that his\n\nconvictions for endangering the welfare of a child were not removable offenses\n\n(i.e., crimes of child abuse, child neglect, or child abandonment), but observed that\n\nMatthews could renew this challenge before the agency on remand. Id. at 77.\n\n On remand, the Government added an additional charge that Matthews\n\nwas removable for having been convicted of two crimes involving moral turpitude\n\n(“CIMTs”) based on the public lewdness convictions in 1990 and 1994. See INA\n\n§ 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) (“Any alien who at any time after\n\nadmission is convicted of two or more crimes involving moral turpitude, not\n\narising out of a single scheme of criminal misconduct . . . is deportable.”).\n\n In April 2016, the IJ denied all relief and ordered Matthews removed. No.\n\nA042 231 142 (Immig. Ct. N.Y. City Apr. 7, 2016). The IJ found that Matthews’s\n\npublic lewdness convictions were not CIMTs, but concluded that Matthews was\n\n\n\n 6\n\nremovable for crimes of child abuse, neglect, or abandonment based on his\n\nconvictions under NYPL § 260.10(1). The IJ relied on the BIA’s precedential\n\ndecision in Matter of Mendoza Osorio, 26 I. & N. Dec. 703 (B.I.A. 2016), which held\n\nthat a conviction for endangering the welfare of a child under NYPL § 260.10(1) is\n\na crime of child abuse, neglect, or abandonment under the INA. The IJ denied\n\nboth adjustment of status and cancellation of removal as a matter of discretion,\n\nreasoning that Matthews’s “several positive factors” (over twenty‐five years’\n\nresidence in the United States, a strong relationship with his U.S.‐citizen wife,\n\nwork history, and payment of taxes) were outweighed by his criminal history and\n\nlack of rehabilitation.\n\n In August 2016, the BIA dismissed Matthews’s appeal. In re Gerard Patrick\n\nMatthews, No. A042 231 142 (B.I.A. Aug. 30, 2016). The BIA agreed that Matthews\n\nwas removable, rejecting his argument that Mendoza Osorio misinterpreted the\n\nscope of New York’s law and holding that NYPL § 260.10(1) “requires a knowing\n\nact with a likelihood of harm to a child.” Certified Administrative Record (“CAR”)\n\nat 4. The BIA also agreed with the IJ that Matthews did not merit discretionary\n\nrelief. Id. at 5.\n\n\n\n\n 7\n\n Matthews, who is represented by pro bono counsel, timely petitioned for\n\nreview.\n\n DISCUSSION\n\n I. Standard of Review\n\n Where, as here, “the BIA has adopted the IJ’s reasoning and offered\n\nadditional commentary, we review the decision of the IJ as supplemented by the\n\nBIA.” Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137, 142 (2d Cir. 2008).\n\n“Whether a conviction qualifies as a removable offense under a stated provision\n\nof the INA is a question of law.” Mizrahi v. Gonzales, 492 F.3d 156, 157–58 (2d Cir.\n\n2007). We review the BIA’s construction of state criminal law de novo. Id. at 158.\n\n“To the extent the question requires us to construe a provision of the INA,\n\nhowever, because the administration of that statute is entrusted to the BIA, our\n\nreview follows the two‐step process outlined in Chevron, U.S.A, Inc. v. Natural Res.\n\nDef. Council, Inc., 467 U.S. 837 (1984).” Id.\n\n II. The BIA’s Definition of “Crime of Child Abuse”\n\n Matthews was ordered removed under 8 U.S.C. § 1227(a)(2)(E)(i), which\n\nprovides that, “[a]ny alien who at any time after admission is convicted of . . . a\n\ncrime of child abuse, child neglect, or child abandonment is deportable.” The\n\n\n\n 8\n\nstatute does not define crime of child abuse, neglect, or abandonment, but the BIA\n\nhas “interpret[ed] the term ‘crime of child abuse’ broadly to mean any offense\n\ninvolving an intentional, knowing, reckless, or criminally negligent act or\n\nomission that constitutes maltreatment of a child or that impairs a child’s physical\n\nor mental well‐being.” Matter of Velazquez‐Herrera, 24 I. & N. Dec. 503, 512 (B.I.A.\n\n2008). The BIA held that,\n\n At a minimum, this definition encompasses convictions for offenses\n involving the infliction on a child of physical harm, even if slight;\n mental or emotional harm, including acts injurious to morals; sexual\n abuse, including direct acts of sexual contact, but also including acts\n that induce (or omissions that permit) a child to engage in\n prostitution, pornography, or other sexually explicit conduct; as well\n as any act that involves the use or exploitation of a child as an object\n of sexual gratification or as a tool in the commission of serious crimes,\n such as drug trafficking.\n\nId. The BIA’s definition also covers child endangerment offenses where no actual\n\nharm or injury occurs, so long as the state statute requires a sufficient risk of harm\n\nto a child. Matter of Soram, 25 I. & N. Dec. 378, 381–83 (B.I.A. 2010). In Soram, the\n\nBIA held that a Colorado child endangerment statute that state courts had\n\ninterpreted to require a “reasonable probability” of injury to a child was\n\ncategorically a crime of child abuse, neglect, or abandonment. Id. at 385–86. The\n\nBIA noted that, given the wide degree of variation in state child endangerment\n\nstatutes, “a State‐by‐State analysis is appropriate to determine whether the risk of\n\n 9\n\nharm required by the endangerment‐type language in any given State statute is\n\nsufficient to bring an offense within the definition of ‘child abuse’ under the\n\n[INA].” Id. at 383.\n\n Importantly, this is not the first time we have reviewed the BIA’s conclusion\n\nthat a state child endangerment offense is a removable crime of child abuse,\n\nneglect, or abandonment under 8 U.S.C. § 1227(a)(2)(E)(i). In 2015, employing the\n\ntwo‐step Chevron framework,3 we found the phrase “crime of child abuse, child\n\nneglect, or child abandonment” to be ambiguous because it is not defined in the\n\nINA, and we deferred to the BIA’s conclusion in Soram that this phrase\n\nencompassed at least some child endangerment offenses. Florez, 779 F.3d at 211––\n\n14. We noted that in 1996, when Congress added the crime of child abuse\n\nprovision to the INA, at least nine states had criminal child abuse statutes that\n\ncovered endangerment without injury. Id. at 212. We suggested, however, that a\n\ndefinition that is not limited to crimes that pose a high enough risk of harm or\n\ninjury to a child may not be reasonable:\n\n Although the BIA’s definition of ‘a crime of child abuse’ is expansive,\n it is not unlimited. Soram confirms that a state child‐endangerment\n\n\n3Under Chevron, courts ask, first, whether a statute is ambiguous. If it is not ambiguous, courts\nmust apply the statute’s clear meaning. Second, if the statute is ambiguous, courts defer to a\npermissible interpretation of the statute by the administrative agency responsible for its\nenforcement. 467 U.S. at 842–43.\n\n 10\n\n statute qualifies as a ‘crime of child abuse’ under the INA only if it\n requires, as an element of the crime, a sufficiently high risk of harm to\n a child . . . this limitation ensures that the BIA’s treatment of state\n child‐endangerment statutes remains within the realm of reason.\n\nId. The BIA has agreed with this position. In Mendoza Osorio, the agency\n\n“recognize[d] that there are child endangerment statutes that do not require a\n\nsufficiently high risk of harm to a child to meet the definition of child abuse,\n\nneglect, or abandonment under the [INA].” 26 I. & N. Dec. at 711. As an example,\n\nthe BIA pointed out that a conviction for misdemeanor child endangerment in\n\nCalifornia is not a crime of child abuse under the INA because that statute\n\n“punishes ‘conduct that creates only the bare potential for nonserious harm to a\n\nchild.’” Id. (quoting Fregozo v. Holder, 576 F.3d 1030, 1037–38 (9th Cir. 2009)); see\n\nalso Cal. Penal Code § 273a(b) (“Any person who, under circumstances or\n\nconditions other than those likely to produce great bodily harm or death, . . .\n\nwillfully causes or permits that child to be placed in a situation where his or her\n\nperson or health may be endangered, is guilty of a misdemeanor.” (emphases\n\nadded)).\n\n Whether a New York misdemeanor conviction for endangering the welfare\n\nof a child is a crime of child abuse remains an open question of law in this Circuit.\n\nFlorez had conceded that NYPL § 260.10(1) fell within the BIA’s definition, and\n\n\n 11\n\ntherefore we did not need to decide the issue in that case. Florez, 779 F.3d at 209–\n\n10, 212.4 In Matthews’s case, the BIA followed Mendoza Osorio, a precedential\n\ndecision holding that NYPL § 260.10(1) is a crime of child abuse. 26 I. & N. Dec. at\n\n705–12. Focusing on the prong of the statute at issue here, “taking action that is\n\nlikely to be harmful to a child’s welfare,” the BIA concluded that a conviction\n\nunder the statute “requires a showing that the defendant knew that his actions\n\nwere likely to result in physical, mental, or moral harm to a child.” Id. at 705–06.\n\n“To act ‘knowingly’ under New York law, the defendant must have been ‘aware’\n\nof the nature of his conduct and of the fact that his actions had the potential for\n\nharm.” Id. at 706 (quoting People v. Johnson, 95 N.Y.2d 368, 372 (2000)). “There\n\nmust also be proof that the harm was ‘likely to occur, and not merely possible.’”\n\nId. (quoting People v. Hitchcock, 98 N.Y.2d 586, 591 (2002)). The BIA reasoned that\n\n§ 260.10(1) was categorically a crime of child abuse, neglect, or abandonment\n\nbecause a conviction required “a knowing mental state coupled with an act or acts\n\ncreating a likelihood of harm to a child.” Id. The BIA addressed several New York\n\ncases applying § 260.10(1) and noted that: (1) state courts regularly dismissed\n\n\n\n\n4In an unpublished decision that pre‐dated Soram, we expressed skepticism about whether NYPL\n§ 260.10(1) was a crime of child abuse, but we remanded for the BIA to define a “crime of child\nabuse” in the first instance. Guzman v. Holder, 340 F. App’x 679 (2d Cir. 2009) (summary order).\n\n 12\n\nendangerment charges or overturned convictions after determining that a\n\ndefendant’s conduct posed less than a likelihood of harm; and (2) the cases in\n\nwhich the New York courts upheld endangerment charges as facially sufficient, or\n\nupheld a § 260.10(1) conviction, involved factual circumstances that posed a\n\nlikelihood of physical, mental, or moral harm and thus fell within the BIA’s\n\ndefinition. Id. at 707–12. The BIA declined to consider redacted complaints and\n\ncharging documents in its interpretation of the scope of the New York law on the\n\nground that these documents were not accompanied by any proof that the charges\n\nled to a conviction. Id. at 707 n.4.\n\n III. Matthews’s Arguments on Appeal\n\n Matthews has two arguments. First, he challenges our decision in Florez and\n\nargues that we must revisit the Chevron issue in light of a recent Supreme Court\n\ndecision, Esquivel‐Quintana v. Sessions, 137 S. Ct. 1562 (2017), which declined to\n\nafford Chevron deference to the BIA’s interpretation of another INA provision\n\ninvolving “sexual abuse of a minor.” Second, he argues that NYPL § 260.10(1)\n\ndoes not fit within the broad definition of a crime of child abuse, neglect, or\n\nabandonment that we accepted in Florez because New York court decisions and\n\ncharging documents show that a conviction for endangering the welfare of a child\n\n\n\n 13\n\nunder NYPL § 260.10(1) requires only a slight chance of nonserious harm to a\n\nchild. We address these arguments in turn and conclude that both lack merit.\n\n A. Revisiting Florez\n\n “In our Circuit, panels are ‘bound by the decisions of prior panels until such\n\ntime as they are overruled either by an en banc panel of our Court or by the\n\nSupreme Court.’” United States v. Gill, 748 F.3d 491, 502 n.8 (2d Cir. 2014) (quoting\n\nUnited States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004)). However, a panel may\n\noverrule a prior decision if “there has been an intervening Supreme Court decision\n\nthat casts doubt on our controlling precedent.” Gelman v. Ashcroft, 372 F.3d 495,\n\n499 (2d Cir. 2004) (quoting Union of Needletrades, Indus. & Textile Emps. v. INS, 336\n\nF.3d 200, 210 (2d Cir. 2003)). Matthews argues that the Supreme Court’s 2017\n\ndecision in Esquivel‐Quintana casts doubt on Florez’s method of statutory\n\ninterpretation (the traditional two‐step Chevron analysis) and its conclusion that\n\nSoram’s definition of a crime of child abuse was a permissible construction of 8\n\nU.S.C. § 1227(a)(2)(E)(i).\n\n In Esquivel‐Quintana the Supreme Court interpreted 8 U.S.C.\n\n§ 1101(a)(43)(A), which covers the aggravated felony offense of “sexual abuse of a\n\nminor.” Esquivel‐Quintana, 137 S. Ct. at 1567. The issue in that case was whether\n\n\n\n 14\n\nstate statutory rape laws that defined a “minor” as a person under the age of\n\neighteen fell within the INA’s definition of sexual abuse of a minor. Id. at 1568.5\n\nThe Supreme Court held that they did not because the federal generic age of\n\nconsent in 1996 (when this INA provision was enacted) was sixteen. Id. at 1569–\n\n72. The Supreme Court looked to several different sources in reaching this\n\nconclusion. First, the structure of the INA—specifically, the fact that the sexual\n\nabuse of a minor offense was designated an “aggravated felony” and placed “in\n\nthe same subparagraph as murder and rape”—“suggest[ed] that sexual abuse of a\n\nminor encompasses only especially egregious felonies.” Id. at 1570 (internal\n\nquotation marks and citations omitted). Second, another provision of federal law,\n\n18 U.S.C. § 2243, that criminalized “sexual abuse of a minor or ward,” was limited\n\nto victims under age sixteen. Id. at 1570–71. The Court found it especially\n\ninstructive that Congress enacted 18 U.S.C. § 2243 “in the same omnibus law that\n\nadded sexual abuse of a minor to the INA.” Id. (citing Omnibus Consolidated\n\nAppropriations Act, 1997, §§ 121(7), 321, 110 Stat. 3009–31, 3009–627). Third, the\n\n\n\n\n5Esquivel‐Quintana had pleaded no contest to a California statute criminalizing “unlawful sexual\nintercourse with a minor who is more than three years younger than the perpetrator” and\ndefining a “minor” as “a person under the age of 18 years.” 137 S. Ct. at 1567 (quoting Cal. Penal\nCode § 261.5(c)). Thus, the minimum conduct criminalized under this statute would have been\nconsensual sexual intercourse between a seventeen‐year‐old and a twenty‐one‐year‐old. Id.\n\n 15\n\nCourt “look[ed] to state criminal codes for additional evidence about the generic\n\nmeaning of sexual abuse of a minor,” and found that “[a] significant majority of\n\njurisdictions thus set the age of consent at 16 for statutory rape offenses predicated\n\nexclusively on the age of the participants.” Id. at 1571. The Court only briefly\n\naddressed Chevron deference at the end of its decision. Id. at 1572. The\n\nGovernment urged that any ambiguity in the statute should be resolved in its favor\n\nunder Chevron, while Esquivel‐Quintana had argued that any ambiguity should\n\nbe construed in his favor under the rule of lenity. Id. The Court stated that there\n\nwas “no need to resolve whether the rule of lenity or Chevron receives priority in\n\nthis case because the statute, read in context, unambiguously forecloses the\n\nBoard’s interpretation. Therefore, neither the rule of lenity nor Chevron applies.”\n\nId.\n\n In Esquivel‐Quintana, the Supreme Court did not reject Chevron outright or\n\nmandate any particular approach to statutory interpretation. At most, the\n\nSupreme Court’s decision reminds courts to use all available tools of statutory\n\nconstruction in order to discern Congress’s intent before concluding that a\n\nstatutory term is ambiguous and deferring to the implementing agency’s\n\ninterpretation. Cf. Chevron, 467 U.S. at 842 (“If the intent of Congress is clear, that\n\n\n\n 16\n\nis the end of the matter.”); Mizrahi, 492 F.3d at 158 (“If the statutory language is\n\nambiguous, . . . we resort first to canons of statutory construction, and, if the\n\nstatutory meaning remains ambiguous, to legislative history, to see if these\n\ninterpretive clues clearly reveal Congress’s intent.” (internal quotation marks,\n\ncitations, and brackets omitted)).6 Because the Supreme Court’s holding in\n\nEsquivel‐Quintana was narrow and its decision did not relate to the INA’s crime of\n\nchild abuse provision or mandate any particular approach to statutory\n\ninterpretation, it does not cast doubt on Florez.7 Cf. Correa‐Diaz v. Sessions, 881 F.3d\n\n523, 528 (7th Cir.), cert. denied, 139 S. Ct. 224 (2018) (“[W]e do not believe Esquivel‐\n\nQuintana’s limited holding overruled all of this Court’s previous decisions\n\n\n\n6A June 2018 Supreme Court decision analyzing a different INA provision also concluded that\n“the Court need not resort to Chevron deference” if “Congress has supplied a clear and\nunambiguous answer to the interpretive question at hand.” Pereira v. Sessions, 138 S. Ct. 2105,\n2113 (2018). Justice Kennedy’s concurrence expressed concern that the decisions by the Courts of\nAppeals on that issue were too quick to defer to the BIA under Chevron, and were engaging in a\n“cursory analysis” rather than using ordinary tools of statutory construction to discern\nCongress’s intent. 138 S. Ct. at 2120 (Kennedy, J., concurring). Justice Kennedy suggested that\nthe Supreme Court “reconsider, in an appropriate case, the premises that underlie Chevron and\nhow courts have implemented that decision.” Id. at 2121. However, in the absence of such\nreconsideration, we remain bound by Chevron.\n7Matthews overemphasizes Esquivel‐Quintana’s survey of state criminal statutes, which was only\none of several sources the Supreme Court looked to in that case. See 137 S. Ct. at 1571 n.3 (agreeing\nwith the Government that “this sort of multijurisdictional analysis” is not required and stating\nthat “[i]n this case, state criminal codes aid our interpretation of ‘sexual abuse of a minor’ by\noffering useful context.”). Because the INA’s crime of child abuse provision is not an aggravated\nfelony (a designation that carries serious consequences such as barring most forms of relief from\nremoval), and there is no other provision of federal law that defines a crime of child abuse, a\nsignificant part of Esquivel‐Quintana’s statutory analysis is inapplicable to this case.\n\n 17\n\ndeferring to [the] BIA’s interpretation of ‘sexual abuse of a minor.’”). We conclude\n\nthat Florez remains binding, and for this reason, we continue to defer to the BIA’s\n\ndefinition of crime of child abuse, neglect, or abandonment as including child\n\nendangerment offenses that pose a sufficiently high level of risk of harm to a child.\n\nThe next question is whether New York’s child endangerment law fits within that\n\ndefinition.\n\n B. The Categorical Approach\n\n As noted above, the BIA and federal courts agree that state child\n\nendangerment statutes must require something more than a mere possibility of\n\nnonserious harm to qualify as a crime of child abuse, neglect, or abandonment\n\nunder the INA. See Florez, 779 F.3d at 212 (noting that the BIA’s definition “is not\n\nunlimited” and “requires, as an element of the crime, a sufficiently high risk of\n\nharm to a child”); Fregozo, 576 F.3d at 1037–38 (holding that California’s\n\nmisdemeanor child endangerment statute was not a crime of child abuse under\n\nthe INA because it did not require “any particular likelihood of harm to a child”);\n\nMendoza Osorio, 26 I. & N. Dec. at 711 (discussing California statute and agreeing\n\nthat it is not categorically a crime of child abuse). The next issue, then, is whether\n\nNew York’s child endangerment law requires a level of risk of harm to a child that\n\n\n\n 18\n\nis significant enough to qualify as a crime of child abuse, neglect, or abandonment\n\nunder the INA.8\n\n In determining whether NYPL § 260.10(1) is a crime of child abuse, we\n\nemploy the “categorical approach,” looking only to the text of NYPL § 260.10(1)\n\nand New York’s interpretation of that statute to determine whether there is a\n\ncategorical match with the BIA’s definition. Florez, 779 F.3d at 209–10. We use the\n\ncategorical approach whenever the relevant INA provision “makes aliens\n\nremovable based on the nature of their convictions, not based on their actual\n\nconduct.” Esquivel‐Quintana, 137 S. Ct. at 1567–68. The child abuse provision, 8\n\nU.S.C. § 1227(a)(2)(E)(i), like several other provisions of the INA, “premises\n\nremovability not on what an alien has done, or may have done, or is likely to do\n\nin the future (tempting as it may be to consider those factors), but on what he or\n\nshe has been formally convicted of in a court of law.” Gertsenshteyn, 544 F.3d at 145;\n\nsee also Velazquez‐Herrera, 24 I. & N. Dec. at 513 (discussing BIA’s application of the\n\ncategorical approach to § 1227(a)(2)(E)(i)).\n\n\n\n\n8We review the BIA’s interpretation of NYPL § 260.10(1) de novo, without according Chevron\ndeference, because state criminal law falls outside the BIA’s area of expertise. See Gill v. INS, 420\nF.3d 82, 89 (2d Cir. 2005).\n\n 19\n\n Under this categorical approach, “[a]n alien’s actual conduct is irrelevant to\n\nthe inquiry, as the adjudicator must ‘presume that the conviction rested upon\n\nnothing more than the least of the acts criminalized’ under the state statute.”\n\nMellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (quoting Moncrieffe v. Holder, 569 U.S.\n\n184, 190–91 (2013)). We must identify the least culpable conduct that is punishable\n\nunder NYPL § 260.10(1) and determine whether that conduct falls within the BIA’s\n\ndefinition of a crime of child abuse, neglect, or abandonment. However, the\n\nSupreme Court has cautioned that the categorical approach’s “focus on the\n\nminimum conduct criminalized by the state statute is not an invitation to apply\n\n‘legal imagination’ to the state offense; there must be a ‘realistic probability, not a\n\ntheoretical possibility, that the State would apply its statute to conduct that falls\n\noutside the [federal] definition of a crime.’” Moncrieffe, 569 U.S. at 191 (quoting\n\nGonzales v. Duenas‐Alvarez, 549 U.S. 183, 193 (2007)); see also United States v. Hill,\n\n890 F.3d 51, 59 (2d Cir. 2018).\n\n The Supreme Court first announced the realistic probability standard in\n\n2007 in Duenas‐Alvarez, 549 U.S. 183. Duenas‐Alvarez argued that his state statute\n\nof conviction criminalized acts outside the generic definition and thus was not\n\ncategorically a removable theft offense. Id. at 190–94. In rejecting this argument,\n\n\n\n 20\n\nthe Court shifted the burden of proof from the Government to Duenas‐Alvarez to\n\ndemonstrate that, despite the apparent categorical match between the state statute\n\nand the generic federal definition of theft, there was a realistic probability that the\n\nstate would apply the state statute to conduct outside the generic definition. Id. at\n\n193.\n\n In Moncrieffe, the Supreme Court again referenced the “realistic probability”\n\ncomponent of the categorical approach. 569 U.S. at 206. The Court held that a\n\nGeorgia statute criminalizing possession with intent to distribute marijuana was\n\nnot categorically an aggravated felony drug trafficking offense because it\n\ncriminalized conduct that was punishable as a misdemeanor as well as a felony\n\nunder federal law. More specifically, the Georgia statute made it a crime, inter alia,\n\nto possess with intent to distribute small amounts of marijuana, while federal law\n\nrequired a sale for the crime to qualify as a felony. Id. at 193–95. The Government\n\nargued that the Court’s holding would “frustrate the enforcement of other\n\naggravated felony provisions, like § 1101(a)(43)(C), which refers to a federal\n\nfirearms statute that contains an exception for ‘antique firearms.’” Id. at 205. The\n\nCourt rejected the Government’s argument, stating that, given that “Duenas‐\n\nAlvarez requires that there be ‘a realistic probability . . . that the State would apply\n\n\n\n 21\n\nits statute to conduct that falls outside the generic definition of a crime[,]’ [t]o\n\ndefeat the categorical comparison in this manner, a noncitizen would have to\n\ndemonstrate that the State actually prosecutes the relevant offense in cases\n\ninvolving antique firearms.” Id. at 205–06 (internal citation omitted).\n\n Other than in Duenas‐Alvarez and Moncrieffe, the Supreme Court has not\n\nexpanded or again discussed the “realistic probability” approach in the context of\n\ndetermining removability. Importantly, the Supreme Court has not yet\n\n“specif[ied] what type of evidence may be used to satisfy the ‘realistic probability’\n\nrequirement.” Nicanor‐Romero v. Mukasey, 523 F.3d 992, 1005 (9th Cir. 2008),\n\noverruled on other grounds by Marmolejo‐Campos v. Holder, 558 F.3d 903 (9th Cir.\n\n2009); see also Jean‐Louis v. Att’y Gen., 582 F.3d 462, 481–82 (3d Cir. 2009). Although\n\nit is the Government’s burden to prove removability by clear and convincing\n\nevidence, 8 U.S.C. § 1229a(c)(3)(A); Woodby v. INS, 385 U.S. 276, 277, 286 (1966),\n\nMoncrieffe and Duenas‐Alvarez suggest that it is a noncitizen’s burden to establish\n\na realistic probability of being convicted for conduct outside the federal definition,\n\nat least in cases where the state and federal statutes appear to be a categorical\n\nmatch. See also Hylton v. Sessions, 897 F.3d 57, 63 (2d Cir. 2018) (concluding that\n\nthe BIA erred in applying “realistic probability” test where statutes were not a\n\n\n\n 22\n\ncategorical match, but explaining that where there is a match, the noncitizen can\n\n“show a ‘realistic probability’ that ‘the State would apply its statute to conduct\n\nthat falls outside the generic definition of a crime.’” (quoting Duenas‐Alvarez, 549\n\nU.S. at 193)). Because we conclude, as set forth below, that the state and federal\n\nstatutes are a categorical match, Matthews has the burden to show that New York\n\napplies NYPL § 260.10(1) to conduct that falls outside the BIA’s definition of a\n\ncrime of child abuse.\n\n C. The BIA’s Definition of a Crime of Child Abuse is a Categorial\n Match with NYPL § 260.10(1)\n\n Section 260.10(1) criminalizes, as relevant here, “knowingly act[ing] in a\n\nmanner likely to be injurious to the physical, mental, or moral welfare of a child\n\nless than seventeen years old.” New York defines the requisite mens rea,\n\n“knowingly,” as follows: “A person acts knowingly with respect to conduct or to\n\na circumstance described by a statute defining an offense when he is aware that\n\nhis conduct is of such nature or that such circumstance exists.” NYPL § 15.05(2).\n\n“Likely” is defined as “probable,” “showing a strong tendency,” or “reasonably\n\nexpected.” Black’s Law Dictionary (10th ed. 2014). The New York Court of\n\nAppeals has interpreted NYPL § 260.10(1) as requiring both that the defendant\n\nacted “with an awareness of the potential for harm” and “that the harm was likely\n\n\n 23\n\nto occur, and not merely possible.” People v. Hitchcock, 98 N.Y.2d 586, 590–91 (2002)\n\n(emphasis added); see also People v. Johnson, 95 N.Y.2d 368, 372 (2000) (“The\n\nLegislature specifically recognized that behavior that was likely to produce harm\n\nto a child’s physical, mental or moral well‐being fell within its sweep as long as\n\nthe defendant was aware of its potential for harm to a child.”); People v. Simmons,\n\n92 N.Y.2d 829, 830 (1998) (“Actual harm to the child need not result for liability\n\nunder the statute to attach, it being sufficient that the defendant act in a manner\n\nwhich is likely to result in harm to the child, knowing of the likelihood of such\n\nharm coming to the child.”).\n\n The case law illustrates that although the question of whether a defendant’s\n\nconduct is likely to harm a child is highly “fact specific,” evidence of likely harm\n\nis required to convict a defendant under NYPL § 260.10(1). Johnson, 95 N.Y.2d at\n\n373. In Johnson, the Court of Appeals cited “social science and psychological\n\nstudies,” noting “the profound adverse effect on children who witness domestic\n\nviolence.” Id. at 372 n.*.\n\n In People v. Simmons, the defendant was charged with “repeatedly directing\n\nvulgar remarks of a sexual nature” to a child roughly two years old. 92 N.Y.2d at\n\n830. The New York Court of Appeals recognized that the “child was in the\n\n\n\n 24\n\nformative stages of speech and learning, had some verbal cognitive abilities and\n\nin fact reacted to defendant’s vulgar queries, by answering ‘yes.’” Id. Under these\n\ncircumstances, “[t]he jury therefore may reasonably have concluded that the\n\ntotality of defendant’s remarks, repeated to the child over a six‐week period at a\n\ncrucial stage in her intellectual and social development, would have combined to\n\ncreate a likelihood of harm, regardless of the child’s current level of understanding.”\n\nId. at 831 (emphasis added). The court recognized that jurors could “draw[] upon\n\ntheir common human experience and commonsense understanding of the nature\n\nof children” to conclude that the defendant’s “remarks were likely to have caused\n\nthe child harm.” Id. (emphasis added). Our own jurisprudence similarly allows\n\njurors to rely on common sense and experience to draw inferences such as whether\n\na defendant acted with criminal intent. See United States v. Anderson, 747 F.3d 51,\n\n70 (2d Cir. 2014) (“[A]lthough the government is not permitted to build a\n\nconviction on a house of cards, neither is a jury required to leave its common sense\n\nat the courthouse door: ‘Jurors are entitled, and routinely encouraged, to rely on\n\ntheir common sense and experience in drawing inferences.’” (quoting United States\n\nv. Huezo, 546 F.3d 174, 182 (2d Cir. 2008)).\n\n\n\n\n 25\n\n New York appellate courts have reversed NYPL § 260.10(1) convictions after\n\nfinding insufficient evidence or improper instructions regarding either a\n\ndefendant’s knowledge or an actual likelihood of physical, mental, or moral harm\n\nto a child. See People v. Hosue, 56 N.Y.S.3d 764, 767–68 (2d Dep’t 2017) (weight of\n\nevidence was against guilty verdict for attempted child endangerment where\n\ndefendant pushed his seven‐year‐old daughter’s mother during an altercation but\n\n“[t]here was no evidence of a history of domestic violence between the parties”);\n\nPeople v. Coveney, 21 N.Y.S.3d 523, 528–29 (2d Dep’t 2015) (vacating child\n\nendangerment conviction because there was no evidence of any nexus between\n\ndefendants’ conduct and a likelihood of harm to the complainant’s children);\n\nPeople v. Chase, 720 N.Y.S.2d 707, 709 (2d Dep’t 2000) (requiring a “true likelihood\n\nof injury which is not ‘speculative’” and finding that the specific circumstances of\n\ndefendant’s driving while intoxicated did not establish either a likelihood of harm\n\nor defendant’s knowledge beyond a reasonable doubt); People v. Simmons, 635\n\nN.Y.S.2d 373, 374 (4th Dep’t 1995) (“Because the degree of culpability required by\n\nthe statute is actual knowledge, it was reversible error to charge the jury that it\n\ncould find defendant guilty based upon what he should have known.”).\n\n\n\n\n 26\n\n As the BIA discussed in Mendoza Osorio, 26 I. & N. Dec. at 707 n.3, New York\n\ncriminal courts have also dismissed child endangerment charges as legally\n\ninsufficient in cases where the prosecution failed to allege a sufficient, non‐\n\nspeculative risk of injury to a child. See People v. Ventura, 801 N.Y.S.2d 241, 2005\n\nWL 735873, at *2 (Crim. Ct. 2005) (dismissing complaint as facially insufficient\n\nbecause defendant’s act of taking another’s cell phone and throwing it against a\n\nwall did not “pose[] a likelihood of either physical or mental harm to the eleven\n\nand fourteen year‐olds present”); People v. Grajales, 686 N.Y.S.2d 608, 610 (Crim.\n\nCt. 1999) (dismissing child endangerment counts for marijuana possession because\n\n“the potential harm to the child cannot be merely remote or speculative in\n\nnature”).\n\n This is not a situation, therefore, in which the state statute, on its face,\n\nstretches further than the BIA’s definition; instead, the state statute and the BIA’s\n\ndefinition appear to be a categorical match.9 Compare Mendoza Osorio, 26 I. & N.\n\nDec. at 706 (“These elements—a knowing mental state coupled with an act or acts\n\ncreating a likelihood of harm to a child—fit within our definition of a ‘crime of\n\n\n\n9 To the extent that Matthews takes issue with New York’s inclusion of “moral harm” against\nchildren, we note that the BIA’s definition also encompasses “convictions for offenses involving\n. . . mental or emotional harm, including acts injurious to morals.” Velazquez‐Herrera, 24 I. & N.\nDec. at 512.\n\n 27\n\nchild abuse, child neglect, or child abandonment.’”), with Mathis v. United States,\n\n136 S. Ct. 2243, 2251 (2016) (“[T]he elements of Mathis’s crime of conviction . . .\n\ncover a greater swath of conduct than the elements of the relevant [federal] offense\n\n. . . . Under our precedents, that undisputed disparity resolves this case.”), and\n\nHylton, 897 F.3d at 63 (“[T]he statutory language itself . . . creates the realistic\n\nprobability that a state would apply the statute to conduct beyond the generic\n\ndefinition.” (quoting Ramos v. U.S. Att’y Gen., 709 F.3d 1066, 1072 (11th Cir. 2013)).\n\n D. Matthews Has Not Demonstrated a Realistic Probability that the\n Statute is Applied More Broadly than the BIA’s Definition\n\n Where a statute is not facially overbroad, the realistic probability approach\n\nrequires a noncitizen to demonstrate “that the State actually prosecutes the\n\nrelevant offense in cases” that fall outside the federal definition. Moncrieffe, 569\n\nU.S. at 206. Matthews must “at least point to his own case or other cases in which\n\nthe state courts in fact did apply the statute in the special (nongeneric) manner for\n\nwhich he argues.” Duenas‐Alvarez, 549 U.S. at 193.\n\n Matthews does not argue that the facts underlying his convictions do not\n\nmatch the BIA’s definition of a crime of child abuse. Rather, he argues that New\n\nYork courts have imposed liability for child endangerment in situations that may\n\nbe illustrative of “bad parenting” or other “minor missteps,” but do not actually\n\n\n 28\n\npose a likelihood of physical, mental, or moral harm to a child. Petitioner’s Br. at\n\n50. He points to two categories of cases: “home alone” cases and cases involving\n\nthe commission of criminal activity, such as controlled substance use or\n\npossession, in the presence of children.\n\n For the “home alone” cases, Matthews and the dissent cite People v. Reyes, in\n\nwhich a New York criminal court denied a defendant’s motion to dismiss a child\n\nendangerment charge as facially insufficient. 872 N.Y.S.2d 692, 2008 WL 3010044\n\n(Crim. Ct. Aug. 6, 2008); see N.Y. Crim Proc. Law § 100.40(4)(b) (providing that a\n\nmisdemeanor complaint is sufficient on its face when its factual allegations\n\n“provide reasonable cause to believe that the defendant committed the offense\n\ncharged.”). In Reyes, the complaint alleged that a mother left her four‐year‐old\n\nchild home alone for about fifteen minutes in order to get groceries; although the\n\nmother stated that the child was asleep when she left and she remained within\n\nearshot, the police officer who found the child stated that the child was awake and\n\nopened the door for the officers, who were strangers to the child. 2008 WL\n\n3010044, at *1–2. The court determined that the allegations in the complaint made\n\nout a sufficient likelihood of harm, citing to a case where a four‐year‐old started a\n\nfire when left home alone for about ten minutes, and concluded that factual issues\n\n\n\n 29\n\nsuch as whether the child was asleep and whether the defendant remained within\n\nearshot were better left for trial. Id. at *3 & n.1. The court stated:\n\n We hold that the issue of whether there is some minimum time that a\n child must be left alone in order to hold a defendant liable under PL\n § 260.10(1) is ill‐suited for resolution on a motion to dismiss for facial\n insufficiency. Among the factors which would appear appropriate\n for consideration are the age of the child, the length of time involved,\n the maturity of the particular child, and the reason why the child was\n left alone.\n\nId. at *1. If the case proceeded to trial, the prosecution would have been put to its\n\nburden to convince a jury that the defendant’s conduct resulted in a likelihood of\n\nharm to her child and that the defendant knew that her conduct was likely to result\n\nin injury to her child. Reyes and other “home alone” cases illustrate that New York\n\ncourts are cognizant of the line between “bad parenting” and child endangerment,\n\nand provide prosecutors and juries with guideposts for determining when the\n\nfactual circumstances of a case establish culpability under NYPL § 260.10(1).10\n\n\n10Similarly, although New York criminal courts are somewhat divided on whether the possession\nand use of marijuana and other controlled substances pose a sufficient risk of harm to qualify as\nchild endangerment, the cases distinguish between situations in which children are actually\nexposed to controlled substances, and those in which the defendant made an effort to hide or\nconceal the illicit substances. Compare Grajales, 686 N.Y.S.2d at 609–10 (dismissing endangerment\ncharges on the basis that “the mere presence of mari[j]uana alone” in an apartment with children\npresent is not enough to show a likelihood of harm), with People v. Kennedy, 904 N.Y.S.2d 577, 579\n3rd Dep’t 2010) (affirming child endangerment conviction based on teenage daughters’ repeated\nexposure to cocaine residue and paraphernalia in defendant’s home). Matthews, moreover, has\nnot identified any case involving an actual child endangerment conviction that was based upon\nan overbroad application of the statute to conduct involving the use or possession of a controlled\n\n\n 30\n\n The dissent, by contrast, highlights Reyes and other decisions in which New\n\nYork trial courts upheld the sufficiency of criminal misdemeanor complaints\n\nbrought under Section 260.10(1) for the proposition that the state courts are\n\napplying the statute inconsistently and, accordingly, more broadly than the federal\n\ndefinition. While we appreciate the dissent’s concern that some statements by trial\n\ncourts may not correctly interpret the state statute, there is no question that the\n\nstatute, as interpreted by the New York Court of Appeals, is a categorical match\n\nwith the BIA’s definition, and there is no New York appellate decision cited by the\n\ndissent that has upheld a conviction that sweeps more broadly than the BIA\n\ndefinition. The dissent notes correctly that the Supreme Court has yet to articulate\n\nthe contours of the “realistic probability” test to argue that our analysis is not so\n\nlimited, but it is for this precise reason that we find ourselves constrained from\n\nreading these cases as contravening the interpretation espoused by New York’s\n\nhighest court.11\n\n\nsubstance. The only controlled substance case he relies on involved a trial court’s denial of a\nmotion to dismiss. See People v. Alvarez, 860 N.Y.S.2d 745 (Crim. Ct. 2008). In Alvarez, the court\nrelied on the “strong odor of mari[j]uana throughout the apartment,” which implied that the\ndefendant had been smoking marijuana while the children were present, as an aggravating factor\nthat distinguished the case from others involving the mere possession of marijuana. Id. at 747–\n49.\n11In Armed Career Criminal Act (“ACCA”) cases, moreover, which also employ the categorical\napproach and realistic probability test, the Supreme Court and other Courts of Appeals have\n\n\n 31\n\n For similar reasons, we decline to rely upon charging documents to alter our\n\nanalysis. Amici have submitted several redacted arrest reports, complaints, and\n\nmisdemeanor informations that charge defendants with violating NYPL\n\n§ 260.10(1) for conduct such as: driving with a suspended license with a child in\n\nthe car, shoplifting while caring for an infant or toddler, leaving a nine‐year‐old\n\nand sleeping five‐year‐old in a car for ten minutes with the windows open, yelling\n\nand knocking items from a shelf in the presence of two children, and smoking\n\nmarijuana in a public playground while children are playing. Matthews, amici,\n\nand the dissent argue that these charging documents show a realistic probability\n\nthat New York prosecutes conduct that only poses a minimal risk of harm to\n\nchildren.\n\n The Government does not contest the authenticity of these documents,\n\nalthough in Matthews’s case the IJ and BIA relied on Mendoza Osorio, a\n\n\n\n\nrecognized that federal courts are bound by the highest state court’s interpretations of state law.\nSee Johnson v. United States, 559 U.S. 133, 138 (2010) (holding that although the meaning of ACCA’s\nrequirement of “physical force” is a question of federal law, the Court was “bound by the Florida\nSupreme Courtʹs interpretation of state law, including its determination of the elements of” the\nFlorida battery statute at issue); United States v. Holloway, 630 F.3d 252, 259–60 (1st Cir. 2011)\n(citing Johnson for the same proposition); see also United States v. Southers, 866 F.3d 364, 368 (6th\nCir. 2017) (rejecting notion that defendant’s reliance on Tennessee intermediate appellate court\ndecisions could satisfy “realistic probability” test to the extent that those “decisions appl[ied] the\nTennessee robbery statute in a manner . . . inconsistent with Tennessee Supreme Court\nprecedent.”).\n\n 32\n\nprecedential case in which the BIA refused to consider charging documents\n\nwithout proof of a subsequent conviction, reasoning that “a judge or jury may\n\nhave found that the facts as charged were insufficient to support a conviction.” 26\n\nI. & N. Dec. at 707 n.4. The fact that Matthews did not submit these documents to\n\nthe IJ or BIA prevents us from reviewing them because in the immigration context,\n\nwe are strictly constrained to the administrative record. 8 U.S.C. § 1252(b)(4)(A)\n\n(“[T]he court of appeals shall decide the petition only on the administrative record\n\non which the order of removal is based.”).12\n\n Even if we could consider these charging documents, we are not convinced\n\nthat they would change the outcome of this case. On the one hand, we recognize\n\nthe concern expressed by Matthews, amici, and the dissent that prosecutors may\n\nbe overcharging conduct under the child endangerment statute, and that the vast\n\nmajority of child endangerment charges result in guilty pleas and minimal\n\nsentences. The dissent argues that we can consider these charging documents, in\n\n\n\n12We have taken judicial notice of material and undisputed changes in country conditions that\noccur between the BIA’s decision and our review, see Hoxhallari v. Gonzales, 468 F.3d 179, 185 n.5\n(2d Cir. 2006) (per curiam), but that exception does not apply here. And Matthews and amici have\nnot provided any information about the court proceedings in which these arrest reports and\nmisdemeanor charges were filed, such that we might take judicial notice of those proceedings.\nCf. Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (“[C]ourts routinely\ntake judicial notice of documents filed in other courts, . . . to establish the fact of such litigation\nand related filings.”).\n\n\n 33\n\ncombination with a high incidence of guilty pleas, to infer that defendants are\n\npleading guilty to charges that are broader than the BIA’s definition. Amici,\n\nhowever, have not submitted any evidence that these charging documents led to\n\nconvictions (whether through guilty pleas or trial), or that any court upheld the\n\nallegations in these documents as facially sufficient. Without specific evidence\n\nlinking charging documents to guilty pleas, we have no way of knowing the\n\ncircumstances of the individual offenses that caused the prosecutors to bring the\n\ncharges or the defendants to plead to those charges. Moreover, this is not a\n\nsituation where we are without guidance because, as we have previously\n\nexplained, New York’s highest court has clarified the least‐acts‐criminalized by\n\nNYPL § 260.10(1) and requires a likelihood of harm to a child to support a\n\nconviction. For this reason, we agree with the BIA’s decision in Mendoza Osorio\n\nand conclude that the charging documents and the cases Matthews and the dissent\n\npoint to are not enough to show a realistic probability that NYPL § 260.10(1) covers\n\nconduct that falls outside the BIA’s definition of a crime of child abuse.13\n\n\n13The dissent would grant Matthews’s petition on the additional and independent ground that\nthe BIA’s current definition of “child abuse” cannot be applied retroactively to Matthews’s 2002\nand 2003 state convictions. Counsel, however, has not raised this issue, and we therefore do not\nreach it. Nor do we foreclose the possibility that another petitioner might challenge an order of\nremoval premised on convictions that predated the BIA’s contemporaneous definition in a proper\ncase.\n\n\n 34\n\n CONCLUSION\n\n Because we hold that NYPL § 260.10(1) is a categorical match with the BIA’s\n\ndefinition of “crime of child abuse,” to which we owe Chevron deference, and\n\nbecause Matthews has not established a realistic probability that the statute\n\nencompasses conduct that stretches further than the BIA’s definition, we DENY\n\nthe petition for review.\n\n\n\n\nSimilarly, although we appreciate the policy concerns that Matthews, amici, and the dissent have\nthoughtfully highlighted—such as the risk of separating families or disqualifying domestic\nviolence victims from obtaining immigration relief—these concerns are not present in Matthews’s\ncase, and he has not presented evidence that such concerns have materialized in the context of\nNew York’s child endangerment law.\n\n 35\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Gerard Patrick MATTHEWS, Petitioner, v. William P. BARR, United States Attorney General, Respondent.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-06-18\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n16‐3145\\nMatthews v. Barr\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n August Term, 2017\\n\\n (Argued: May 9, 2018 Decided: June 18, 2019)\\n\\n Docket No. 16‐3145\\n________________________________________________________________________\\n\\n GERARD PATRICK MATTHEWS,\\n\\n Petitioner,\\n\\n ‐ v. ‐\\n\\n WILLIAM P. BARR, United States Attorney General,\\n\\n Respondent.\\n________________________________________________________________________\\n\\nBefore:\\n HALL and CARNEY, Circuit Judges, KOELTL, District Judge.1\\n\\n Petitioner seeks review of a decision of the Board of Immigration Appeals,\\naffirming a decision of an Immigration Judge that found Petitioner removable and\\ndenied Petitioner’s applications for cancellation of removal and adjustment of\\nstatus. The agency determined that Petitioner’s New York convictions for\\nendangering the welfare of a child were crimes of child abuse, child neglect, or\\nchild abandonment under the Immigration and Nationality Act, and denied relief\\nfrom removal as a matter of discretion. Because we have previously upheld the\\ndetermination of the Board of Immigration Appeals that child endangerment\\noffenses fall within the Immigration and Nationality Act’s crime of child abuse\\nprovision, and we agree that New York law—which criminalizes conduct that\\n\\n1Judge John G. Koeltl, of the United States District Court for the Southern District of New York,\\nsitting by designation.\\n\\nposes a likelihood of physical, mental, or moral harm to a child—falls within the\\nBIA’s definition, we DENY the petition.\\n\\n Petition for review DENIED.\\n\\n Judge Carney dissents in a separate opinion.\\n\\n\\n\\n DAVID J. ZIMMER, Goodwin Procter LLP, Boston,\\n MA (William M. Jay, Goodwin Procter LLP,\\n Washington, D.C.; Seymour W. James, Jr.,\\n Attorney‐in‐Chief, Hasan Shafiqullah, Attorney‐in\\n Charge, Ward J. Oliver, Supervising Attorney,\\n Immigration Law Unit, The Legal Aid Society,\\n New York, NY, on the brief), for Petitioner.\\n\\n SONG PARK, Senior Litigation Counsel, Office of\\n Immigration Litigation, Civil Division (Chad A.\\n Readler, Acting Assistant Attorney General, Cindy\\n S. Ferrier, Assistant Director, on the brief), United\\n States Department of Justice, Washington, D.C., for\\n Respondent.\\n\\n ANDREW WACHTENHEIM, Immigrant Defense\\n Project, New York, NY, for Amici Curiae Brooklyn\\n Defender Services, Queens Law Associates,\\n Neighborhood Defender Service of Harlem, The\\n Bronx Defenders, Essex County Public Defender’s\\n Office, Monroe County Public Defender’s Office,\\n Immigrant Defense Project.\\n\\n\\n\\n\\n 2\\n\\nHALL, CIRCUIT JUDGE:\\n\\n Petitioner Gerard Patrick Matthews seeks review of an August 2016 decision\\n\\nof the Board of Immigration Appeals (“BIA”), affirming an April 2016 decision of\\n\\nan Immigration Judge (“IJ”) that ordered Matthews removed to Ireland on the\\n\\nground that his convictions for endangering the welfare of a child under New York\\n\\nPenal Law (“NYPL”) § 260.10(1) made him removable under Immigration and\\n\\nNationality Act (“INA”) § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), which\\n\\nprovides that “[a]ny alien who at any time after admission is convicted of . . . a\\n\\ncrime of child abuse, child neglect, or child abandonment is deportable.”\\n\\nMatthews argues that he is not removable because the New York statute of\\n\\nconviction is not categorically a crime of child abuse under the INA. First, he\\n\\nargues that the INA’s definition of crime of child abuse requires that there be\\n\\nactual harm to a child, or at least a high risk of serious injury. He challenges the\\n\\nBIA’s definition, which encompasses state child endangerment offenses that\\n\\ninvolve a sufficiently high risk of physical, mental, or moral harm to a child.\\n\\nBecause we have deferred to the BIA’s definition as a reasonable interpretation of\\n\\nthe crime of child abuse provision in a precedential decision, Florez v. Holder, 779\\n\\nF.3d 207 (2d Cir. 2015), and we find no basis for departing from that decision, we\\n\\n\\n\\n 3\\n\\nreject Matthews’s first argument and continue to apply the BIA’s definition of\\n\\ncrime of child abuse. Second, Matthews argues that the New York child\\n\\nendangerment law, NYPL § 260.10(1), stretches even further than the BIA’s broad\\n\\ndefinition because the statute and New York courts’ interpretation of it allow for\\n\\nconvictions based on conduct that poses only a minimal risk of nonserious harm\\n\\nto a child. We reject this argument as well: NYPL § 260.10(1)’s text and New York\\n\\ncourt decisions applying the statute require proof of a knowing mental state and a\\n\\nlikelihood of harm, and Matthews has not shown a realistic probability of\\n\\nconviction for conduct that does not pose a likelihood of harm.\\n\\n We DENY the petition for review.\\n\\n BACKGROUND\\n\\n Petitioner Gerard Patrick Matthews is a native and citizen of Ireland who\\n\\nhas lived in the United States as a lawful permanent resident since 1989.\\n\\nMatthews, who was physically and sexually abused as a child, has a long history\\n\\nof alcoholism and has repeatedly exposed himself in public while intoxicated.\\n\\nBetween 1990 and 2011, these public exposure incidents resulted in at least nine\\n\\nconvictions for public lewdness and two convictions for endangering the welfare\\n\\n\\n\\n\\n 4\\n\\nof a child under New York Penal Law (“NYPL”) § 260.10(1).2 Section § 260.10(1)\\n\\nprohibits, as relevant here, “knowingly act[ing] in a manner likely to be injurious\\n\\nto the physical, mental or moral welfare of a child less than seventeen years old.”\\n\\nMatthews was convicted in 2002 of violating NYPL § 260.10(1) and was sentenced\\n\\nto six months’ imprisonment. In 2003, he pleaded guilty to another NYPL\\n\\n§ 260.10(1) violation as well as a public lewdness charge under NYPL § 245.00 and\\n\\nwas sentenced to concurrent terms of imprisonment of one year and 90 days,\\n\\nrespectively. Matthews testified at his removal hearing that he never intentionally\\n\\ntargeted children when he engaged in publicly lewd behavior; rather, he targeted\\n\\nadults, and the child endangerment charges were tacked onto his public lewdness\\n\\ncharges because children happened to be present. However, the IJ did not credit\\n\\nMatthews’s accounts of the circumstances of these convictions because they were\\n\\nin stark contrast to the criminal complaints, which alleged that he targeted a nine‐\\n\\nyear‐old boy in one case and two teenage girls in the other.\\n\\n In 2011, the Department of Homeland Security placed Matthews in removal\\n\\nproceedings through service of a Notice to Appear (“NTA”). The NTA charged\\n\\nMatthews as removable on the ground that his New York convictions for\\n\\n\\n2Matthews also has a 1995 conviction for third‐degree assault under NYPL § 120.00, for which he\\nwas sentenced to three years’ probation. This conviction was not charged as a basis for removal.\\n\\n 5\\n\\nendangering the welfare of a child were crimes of child abuse, child neglect, or\\n\\nchild abandonment under 8 U.S.C. § 1227(a)(2)(E)(i). An IJ initially granted\\n\\nMatthews discretionary relief from removal, but the BIA overturned that ruling in\\n\\n2013. Matthews petitioned for review, and we remanded the case for the agency\\n\\nto explain fully its denial of relief. Matthews v. Holder, 590 F. App’x 75 (2d Cir.\\n\\n2015). We declined to consider Matthews’s then‐unexhausted argument that his\\n\\nconvictions for endangering the welfare of a child were not removable offenses\\n\\n(i.e., crimes of child abuse, child neglect, or child abandonment), but observed that\\n\\nMatthews could renew this challenge before the agency on remand. Id. at 77.\\n\\n On remand, the Government added an additional charge that Matthews\\n\\nwas removable for having been convicted of two crimes involving moral turpitude\\n\\n(“CIMTs”) based on the public lewdness convictions in 1990 and 1994. See INA\\n\\n§ 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) (“Any alien who at any time after\\n\\nadmission is convicted of two or more crimes involving moral turpitude, not\\n\\narising out of a single scheme of criminal misconduct . . . is deportable.”).\\n\\n In April 2016, the IJ denied all relief and ordered Matthews removed. No.\\n\\nA042 231 142 (Immig. Ct. N.Y. City Apr. 7, 2016). The IJ found that Matthews’s\\n\\npublic lewdness convictions were not CIMTs, but concluded that Matthews was\\n\\n\\n\\n 6\\n\\nremovable for crimes of child abuse, neglect, or abandonment based on his\\n\\nconvictions under NYPL § 260.10(1). The IJ relied on the BIA’s precedential\\n\\ndecision in Matter of Mendoza Osorio, 26 I. & N. Dec. 703 (B.I.A. 2016), which held\\n\\nthat a conviction for endangering the welfare of a child under NYPL § 260.10(1) is\\n\\na crime of child abuse, neglect, or abandonment under the INA. The IJ denied\\n\\nboth adjustment of status and cancellation of removal as a matter of discretion,\\n\\nreasoning that Matthews’s “several positive factors” (over twenty‐five years’\\n\\nresidence in the United States, a strong relationship with his U.S.‐citizen wife,\\n\\nwork history, and payment of taxes) were outweighed by his criminal history and\\n\\nlack of rehabilitation.\\n\\n In August 2016, the BIA dismissed Matthews’s appeal. In re Gerard Patrick\\n\\nMatthews, No. A042 231 142 (B.I.A. Aug. 30, 2016). The BIA agreed that Matthews\\n\\nwas removable, rejecting his argument that Mendoza Osorio misinterpreted the\\n\\nscope of New York’s law and holding that NYPL § 260.10(1) “requires a knowing\\n\\nact with a likelihood of harm to a child.” Certified Administrative Record (“CAR”)\\n\\nat 4. The BIA also agreed with the IJ that Matthews did not merit discretionary\\n\\nrelief. Id. at 5.\\n\\n\\n\\n\\n 7\\n\\n Matthews, who is represented by pro bono counsel, timely petitioned for\\n\\nreview.\\n\\n DISCUSSION\\n\\n I. Standard of Review\\n\\n Where, as here, “the BIA has adopted the IJ’s reasoning and offered\\n\\nadditional commentary, we review the decision of the IJ as supplemented by the\\n\\nBIA.” Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137, 142 (2d Cir. 2008).\\n\\n“Whether a conviction qualifies as a removable offense under a stated provision\\n\\nof the INA is a question of law.” Mizrahi v. Gonzales, 492 F.3d 156, 157–58 (2d Cir.\\n\\n2007). We review the BIA’s construction of state criminal law de novo. Id. at 158.\\n\\n“To the extent the question requires us to construe a provision of the INA,\\n\\nhowever, because the administration of that statute is entrusted to the BIA, our\\n\\nreview follows the two‐step process outlined in Chevron, U.S.A, Inc. v. Natural Res.\\n\\nDef. Council, Inc., 467 U.S. 837 (1984).” Id.\\n\\n II. The BIA’s Definition of “Crime of Child Abuse”\\n\\n Matthews was ordered removed under 8 U.S.C. § 1227(a)(2)(E)(i), which\\n\\nprovides that, “[a]ny alien who at any time after admission is convicted of . . . a\\n\\ncrime of child abuse, child neglect, or child abandonment is deportable.” The\\n\\n\\n\\n 8\\n\\nstatute does not define crime of child abuse, neglect, or abandonment, but the BIA\\n\\nhas “interpret[ed] the term ‘crime of child abuse’ broadly to mean any offense\\n\\ninvolving an intentional, knowing, reckless, or criminally negligent act or\\n\\nomission that constitutes maltreatment of a child or that impairs a child’s physical\\n\\nor mental well‐being.” Matter of Velazquez‐Herrera, 24 I. & N. Dec. 503, 512 (B.I.A.\\n\\n2008). The BIA held that,\\n\\n At a minimum, this definition encompasses convictions for offenses\\n involving the infliction on a child of physical harm, even if slight;\\n mental or emotional harm, including acts injurious to morals; sexual\\n abuse, including direct acts of sexual contact, but also including acts\\n that induce (or omissions that permit) a child to engage in\\n prostitution, pornography, or other sexually explicit conduct; as well\\n as any act that involves the use or exploitation of a child as an object\\n of sexual gratification or as a tool in the commission of serious crimes,\\n such as drug trafficking.\\n\\nId. The BIA’s definition also covers child endangerment offenses where no actual\\n\\nharm or injury occurs, so long as the state statute requires a sufficient risk of harm\\n\\nto a child. Matter of Soram, 25 I. & N. Dec. 378, 381–83 (B.I.A. 2010). In Soram, the\\n\\nBIA held that a Colorado child endangerment statute that state courts had\\n\\ninterpreted to require a “reasonable probability” of injury to a child was\\n\\ncategorically a crime of child abuse, neglect, or abandonment. Id. at 385–86. The\\n\\nBIA noted that, given the wide degree of variation in state child endangerment\\n\\nstatutes, “a State‐by‐State analysis is appropriate to determine whether the risk of\\n\\n 9\\n\\nharm required by the endangerment‐type language in any given State statute is\\n\\nsufficient to bring an offense within the definition of ‘child abuse’ under the\\n\\n[INA].” Id. at 383.\\n\\n Importantly, this is not the first time we have reviewed the BIA’s conclusion\\n\\nthat a state child endangerment offense is a removable crime of child abuse,\\n\\nneglect, or abandonment under 8 U.S.C. § 1227(a)(2)(E)(i). In 2015, employing the\\n\\ntwo‐step Chevron framework,3 we found the phrase “crime of child abuse, child\\n\\nneglect, or child abandonment” to be ambiguous because it is not defined in the\\n\\nINA, and we deferred to the BIA’s conclusion in Soram that this phrase\\n\\nencompassed at least some child endangerment offenses. Florez, 779 F.3d at 211––\\n\\n14. We noted that in 1996, when Congress added the crime of child abuse\\n\\nprovision to the INA, at least nine states had criminal child abuse statutes that\\n\\ncovered endangerment without injury. Id. at 212. We suggested, however, that a\\n\\ndefinition that is not limited to crimes that pose a high enough risk of harm or\\n\\ninjury to a child may not be reasonable:\\n\\n Although the BIA’s definition of ‘a crime of child abuse’ is expansive,\\n it is not unlimited. Soram confirms that a state child‐endangerment\\n\\n\\n3Under Chevron, courts ask, first, whether a statute is ambiguous. If it is not ambiguous, courts\\nmust apply the statute’s clear meaning. Second, if the statute is ambiguous, courts defer to a\\npermissible interpretation of the statute by the administrative agency responsible for its\\nenforcement. 467 U.S. at 842–43.\\n\\n 10\\n\\n statute qualifies as a ‘crime of child abuse’ under the INA only if it\\n requires, as an element of the crime, a sufficiently high risk of harm to\\n a child . . . this limitation ensures that the BIA’s treatment of state\\n child‐endangerment statutes remains within the realm of reason.\\n\\nId. The BIA has agreed with this position. In Mendoza Osorio, the agency\\n\\n“recognize[d] that there are child endangerment statutes that do not require a\\n\\nsufficiently high risk of harm to a child to meet the definition of child abuse,\\n\\nneglect, or abandonment under the [INA].” 26 I. & N. Dec. at 711. As an example,\\n\\nthe BIA pointed out that a conviction for misdemeanor child endangerment in\\n\\nCalifornia is not a crime of child abuse under the INA because that statute\\n\\n“punishes ‘conduct that creates only the bare potential for nonserious harm to a\\n\\nchild.’” Id. (quoting Fregozo v. Holder, 576 F.3d 1030, 1037–38 (9th Cir. 2009)); see\\n\\nalso Cal. Penal Code § 273a(b) (“Any person who, under circumstances or\\n\\nconditions other than those likely to produce great bodily harm or death, . . .\\n\\nwillfully causes or permits that child to be placed in a situation where his or her\\n\\nperson or health may be endangered, is guilty of a misdemeanor.” (emphases\\n\\nadded)).\\n\\n Whether a New York misdemeanor conviction for endangering the welfare\\n\\nof a child is a crime of child abuse remains an open question of law in this Circuit.\\n\\nFlorez had conceded that NYPL § 260.10(1) fell within the BIA’s definition, and\\n\\n\\n 11\\n\\ntherefore we did not need to decide the issue in that case. Florez, 779 F.3d at 209–\\n\\n10, 212.4 In Matthews’s case, the BIA followed Mendoza Osorio, a precedential\\n\\ndecision holding that NYPL § 260.10(1) is a crime of child abuse. 26 I. & N. Dec. at\\n\\n705–12. Focusing on the prong of the statute at issue here, “taking action that is\\n\\nlikely to be harmful to a child’s welfare,” the BIA concluded that a conviction\\n\\nunder the statute “requires a showing that the defendant knew that his actions\\n\\nwere likely to result in physical, mental, or moral harm to a child.” Id. at 705–06.\\n\\n“To act ‘knowingly’ under New York law, the defendant must have been ‘aware’\\n\\nof the nature of his conduct and of the fact that his actions had the potential for\\n\\nharm.” Id. at 706 (quoting People v. Johnson, 95 N.Y.2d 368, 372 (2000)). “There\\n\\nmust also be proof that the harm was ‘likely to occur, and not merely possible.’”\\n\\nId. (quoting People v. Hitchcock, 98 N.Y.2d 586, 591 (2002)). The BIA reasoned that\\n\\n§ 260.10(1) was categorically a crime of child abuse, neglect, or abandonment\\n\\nbecause a conviction required “a knowing mental state coupled with an act or acts\\n\\ncreating a likelihood of harm to a child.” Id. The BIA addressed several New York\\n\\ncases applying § 260.10(1) and noted that: (1) state courts regularly dismissed\\n\\n\\n\\n\\n4In an unpublished decision that pre‐dated Soram, we expressed skepticism about whether NYPL\\n§ 260.10(1) was a crime of child abuse, but we remanded for the BIA to define a “crime of child\\nabuse” in the first instance. Guzman v. Holder, 340 F. App’x 679 (2d Cir. 2009) (summary order).\\n\\n 12\\n\\nendangerment charges or overturned convictions after determining that a\\n\\ndefendant’s conduct posed less than a likelihood of harm; and (2) the cases in\\n\\nwhich the New York courts upheld endangerment charges as facially sufficient, or\\n\\nupheld a § 260.10(1) conviction, involved factual circumstances that posed a\\n\\nlikelihood of physical, mental, or moral harm and thus fell within the BIA’s\\n\\ndefinition. Id. at 707–12. The BIA declined to consider redacted complaints and\\n\\ncharging documents in its interpretation of the scope of the New York law on the\\n\\nground that these documents were not accompanied by any proof that the charges\\n\\nled to a conviction. Id. at 707 n.4.\\n\\n III. Matthews’s Arguments on Appeal\\n\\n Matthews has two arguments. First, he challenges our decision in Florez and\\n\\nargues that we must revisit the Chevron issue in light of a recent Supreme Court\\n\\ndecision, Esquivel‐Quintana v. Sessions, 137 S. Ct. 1562 (2017), which declined to\\n\\nafford Chevron deference to the BIA’s interpretation of another INA provision\\n\\ninvolving “sexual abuse of a minor.” Second, he argues that NYPL § 260.10(1)\\n\\ndoes not fit within the broad definition of a crime of child abuse, neglect, or\\n\\nabandonment that we accepted in Florez because New York court decisions and\\n\\ncharging documents show that a conviction for endangering the welfare of a child\\n\\n\\n\\n 13\\n\\nunder NYPL § 260.10(1) requires only a slight chance of nonserious harm to a\\n\\nchild. We address these arguments in turn and conclude that both lack merit.\\n\\n A. Revisiting Florez\\n\\n “In our Circuit, panels are ‘bound by the decisions of prior panels until such\\n\\ntime as they are overruled either by an en banc panel of our Court or by the\\n\\nSupreme Court.’” United States v. Gill, 748 F.3d 491, 502 n.8 (2d Cir. 2014) (quoting\\n\\nUnited States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004)). However, a panel may\\n\\noverrule a prior decision if “there has been an intervening Supreme Court decision\\n\\nthat casts doubt on our controlling precedent.” Gelman v. Ashcroft, 372 F.3d 495,\\n\\n499 (2d Cir. 2004) (quoting Union of Needletrades, Indus. & Textile Emps. v. INS, 336\\n\\nF.3d 200, 210 (2d Cir. 2003)). Matthews argues that the Supreme Court’s 2017\\n\\ndecision in Esquivel‐Quintana casts doubt on Florez’s method of statutory\\n\\ninterpretation (the traditional two‐step Chevron analysis) and its conclusion that\\n\\nSoram’s definition of a crime of child abuse was a permissible construction of 8\\n\\nU.S.C. § 1227(a)(2)(E)(i).\\n\\n In Esquivel‐Quintana the Supreme Court interpreted 8 U.S.C.\\n\\n§ 1101(a)(43)(A), which covers the aggravated felony offense of “sexual abuse of a\\n\\nminor.” Esquivel‐Quintana, 137 S. Ct. at 1567. The issue in that case was whether\\n\\n\\n\\n 14\\n\\nstate statutory rape laws that defined a “minor” as a person under the age of\\n\\neighteen fell within the INA’s definition of sexual abuse of a minor. Id. at 1568.5\\n\\nThe Supreme Court held that they did not because the federal generic age of\\n\\nconsent in 1996 (when this INA provision was enacted) was sixteen. Id. at 1569–\\n\\n72. The Supreme Court looked to several different sources in reaching this\\n\\nconclusion. First, the structure of the INA—specifically, the fact that the sexual\\n\\nabuse of a minor offense was designated an “aggravated felony” and placed “in\\n\\nthe same subparagraph as murder and rape”—“suggest[ed] that sexual abuse of a\\n\\nminor encompasses only especially egregious felonies.” Id. at 1570 (internal\\n\\nquotation marks and citations omitted). Second, another provision of federal law,\\n\\n18 U.S.C. § 2243, that criminalized “sexual abuse of a minor or ward,” was limited\\n\\nto victims under age sixteen. Id. at 1570–71. The Court found it especially\\n\\ninstructive that Congress enacted 18 U.S.C. § 2243 “in the same omnibus law that\\n\\nadded sexual abuse of a minor to the INA.” Id. (citing Omnibus Consolidated\\n\\nAppropriations Act, 1997, §§ 121(7), 321, 110 Stat. 3009–31, 3009–627). Third, the\\n\\n\\n\\n\\n5Esquivel‐Quintana had pleaded no contest to a California statute criminalizing “unlawful sexual\\nintercourse with a minor who is more than three years younger than the perpetrator” and\\ndefining a “minor” as “a person under the age of 18 years.” 137 S. Ct. at 1567 (quoting Cal. Penal\\nCode § 261.5(c)). Thus, the minimum conduct criminalized under this statute would have been\\nconsensual sexual intercourse between a seventeen‐year‐old and a twenty‐one‐year‐old. Id.\\n\\n 15\\n\\nCourt “look[ed] to state criminal codes for additional evidence about the generic\\n\\nmeaning of sexual abuse of a minor,” and found that “[a] significant majority of\\n\\njurisdictions thus set the age of consent at 16 for statutory rape offenses predicated\\n\\nexclusively on the age of the participants.” Id. at 1571. The Court only briefly\\n\\naddressed Chevron deference at the end of its decision. Id. at 1572. The\\n\\nGovernment urged that any ambiguity in the statute should be resolved in its favor\\n\\nunder Chevron, while Esquivel‐Quintana had argued that any ambiguity should\\n\\nbe construed in his favor under the rule of lenity. Id. The Court stated that there\\n\\nwas “no need to resolve whether the rule of lenity or Chevron receives priority in\\n\\nthis case because the statute, read in context, unambiguously forecloses the\\n\\nBoard’s interpretation. Therefore, neither the rule of lenity nor Chevron applies.”\\n\\nId.\\n\\n In Esquivel‐Quintana, the Supreme Court did not reject Chevron outright or\\n\\nmandate any particular approach to statutory interpretation. At most, the\\n\\nSupreme Court’s decision reminds courts to use all available tools of statutory\\n\\nconstruction in order to discern Congress’s intent before concluding that a\\n\\nstatutory term is ambiguous and deferring to the implementing agency’s\\n\\ninterpretation. Cf. Chevron, 467 U.S. at 842 (“If the intent of Congress is clear, that\\n\\n\\n\\n 16\\n\\nis the end of the matter.”); Mizrahi, 492 F.3d at 158 (“If the statutory language is\\n\\nambiguous, . . . we resort first to canons of statutory construction, and, if the\\n\\nstatutory meaning remains ambiguous, to legislative history, to see if these\\n\\ninterpretive clues clearly reveal Congress’s intent.” (internal quotation marks,\\n\\ncitations, and brackets omitted)).6 Because the Supreme Court’s holding in\\n\\nEsquivel‐Quintana was narrow and its decision did not relate to the INA’s crime of\\n\\nchild abuse provision or mandate any particular approach to statutory\\n\\ninterpretation, it does not cast doubt on Florez.7 Cf. Correa‐Diaz v. Sessions, 881 F.3d\\n\\n523, 528 (7th Cir.), cert. denied, 139 S. Ct. 224 (2018) (“[W]e do not believe Esquivel‐\\n\\nQuintana’s limited holding overruled all of this Court’s previous decisions\\n\\n\\n\\n6A June 2018 Supreme Court decision analyzing a different INA provision also concluded that\\n“the Court need not resort to Chevron deference” if “Congress has supplied a clear and\\nunambiguous answer to the interpretive question at hand.” Pereira v. Sessions, 138 S. Ct. 2105,\\n2113 (2018). Justice Kennedy’s concurrence expressed concern that the decisions by the Courts of\\nAppeals on that issue were too quick to defer to the BIA under Chevron, and were engaging in a\\n“cursory analysis” rather than using ordinary tools of statutory construction to discern\\nCongress’s intent. 138 S. Ct. at 2120 (Kennedy, J., concurring). Justice Kennedy suggested that\\nthe Supreme Court “reconsider, in an appropriate case, the premises that underlie Chevron and\\nhow courts have implemented that decision.” Id. at 2121. However, in the absence of such\\nreconsideration, we remain bound by Chevron.\\n7Matthews overemphasizes Esquivel‐Quintana’s survey of state criminal statutes, which was only\\none of several sources the Supreme Court looked to in that case. See 137 S. Ct. at 1571 n.3 (agreeing\\nwith the Government that “this sort of multijurisdictional analysis” is not required and stating\\nthat “[i]n this case, state criminal codes aid our interpretation of ‘sexual abuse of a minor’ by\\noffering useful context.”). Because the INA’s crime of child abuse provision is not an aggravated\\nfelony (a designation that carries serious consequences such as barring most forms of relief from\\nremoval), and there is no other provision of federal law that defines a crime of child abuse, a\\nsignificant part of Esquivel‐Quintana’s statutory analysis is inapplicable to this case.\\n\\n 17\\n\\ndeferring to [the] BIA’s interpretation of ‘sexual abuse of a minor.’”). We conclude\\n\\nthat Florez remains binding, and for this reason, we continue to defer to the BIA’s\\n\\ndefinition of crime of child abuse, neglect, or abandonment as including child\\n\\nendangerment offenses that pose a sufficiently high level of risk of harm to a child.\\n\\nThe next question is whether New York’s child endangerment law fits within that\\n\\ndefinition.\\n\\n B. The Categorical Approach\\n\\n As noted above, the BIA and federal courts agree that state child\\n\\nendangerment statutes must require something more than a mere possibility of\\n\\nnonserious harm to qualify as a crime of child abuse, neglect, or abandonment\\n\\nunder the INA. See Florez, 779 F.3d at 212 (noting that the BIA’s definition “is not\\n\\nunlimited” and “requires, as an element of the crime, a sufficiently high risk of\\n\\nharm to a child”); Fregozo, 576 F.3d at 1037–38 (holding that California’s\\n\\nmisdemeanor child endangerment statute was not a crime of child abuse under\\n\\nthe INA because it did not require “any particular likelihood of harm to a child”);\\n\\nMendoza Osorio, 26 I. & N. Dec. at 711 (discussing California statute and agreeing\\n\\nthat it is not categorically a crime of child abuse). The next issue, then, is whether\\n\\nNew York’s child endangerment law requires a level of risk of harm to a child that\\n\\n\\n\\n 18\\n\\nis significant enough to qualify as a crime of child abuse, neglect, or abandonment\\n\\nunder the INA.8\\n\\n In determining whether NYPL § 260.10(1) is a crime of child abuse, we\\n\\nemploy the “categorical approach,” looking only to the text of NYPL § 260.10(1)\\n\\nand New York’s interpretation of that statute to determine whether there is a\\n\\ncategorical match with the BIA’s definition. Florez, 779 F.3d at 209–10. We use the\\n\\ncategorical approach whenever the relevant INA provision “makes aliens\\n\\nremovable based on the nature of their convictions, not based on their actual\\n\\nconduct.” Esquivel‐Quintana, 137 S. Ct. at 1567–68. The child abuse provision, 8\\n\\nU.S.C. § 1227(a)(2)(E)(i), like several other provisions of the INA, “premises\\n\\nremovability not on what an alien has done, or may have done, or is likely to do\\n\\nin the future (tempting as it may be to consider those factors), but on what he or\\n\\nshe has been formally convicted of in a court of law.” Gertsenshteyn, 544 F.3d at 145;\\n\\nsee also Velazquez‐Herrera, 24 I. & N. Dec. at 513 (discussing BIA’s application of the\\n\\ncategorical approach to § 1227(a)(2)(E)(i)).\\n\\n\\n\\n\\n8We review the BIA’s interpretation of NYPL § 260.10(1) de novo, without according Chevron\\ndeference, because state criminal law falls outside the BIA’s area of expertise. See Gill v. INS, 420\\nF.3d 82, 89 (2d Cir. 2005).\\n\\n 19\\n\\n Under this categorical approach, “[a]n alien’s actual conduct is irrelevant to\\n\\nthe inquiry, as the adjudicator must ‘presume that the conviction rested upon\\n\\nnothing more than the least of the acts criminalized’ under the state statute.”\\n\\nMellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (quoting Moncrieffe v. Holder, 569 U.S.\\n\\n184, 190–91 (2013)). We must identify the least culpable conduct that is punishable\\n\\nunder NYPL § 260.10(1) and determine whether that conduct falls within the BIA’s\\n\\ndefinition of a crime of child abuse, neglect, or abandonment. However, the\\n\\nSupreme Court has cautioned that the categorical approach’s “focus on the\\n\\nminimum conduct criminalized by the state statute is not an invitation to apply\\n\\n‘legal imagination’ to the state offense; there must be a ‘realistic probability, not a\\n\\ntheoretical possibility, that the State would apply its statute to conduct that falls\\n\\noutside the [federal] definition of a crime.’” Moncrieffe, 569 U.S. at 191 (quoting\\n\\nGonzales v. Duenas‐Alvarez, 549 U.S. 183, 193 (2007)); see also United States v. Hill,\\n\\n890 F.3d 51, 59 (2d Cir. 2018).\\n\\n The Supreme Court first announced the realistic probability standard in\\n\\n2007 in Duenas‐Alvarez, 549 U.S. 183. Duenas‐Alvarez argued that his state statute\\n\\nof conviction criminalized acts outside the generic definition and thus was not\\n\\ncategorically a removable theft offense. Id. at 190–94. In rejecting this argument,\\n\\n\\n\\n 20\\n\\nthe Court shifted the burden of proof from the Government to Duenas‐Alvarez to\\n\\ndemonstrate that, despite the apparent categorical match between the state statute\\n\\nand the generic federal definition of theft, there was a realistic probability that the\\n\\nstate would apply the state statute to conduct outside the generic definition. Id. at\\n\\n193.\\n\\n In Moncrieffe, the Supreme Court again referenced the “realistic probability”\\n\\ncomponent of the categorical approach. 569 U.S. at 206. The Court held that a\\n\\nGeorgia statute criminalizing possession with intent to distribute marijuana was\\n\\nnot categorically an aggravated felony drug trafficking offense because it\\n\\ncriminalized conduct that was punishable as a misdemeanor as well as a felony\\n\\nunder federal law. More specifically, the Georgia statute made it a crime, inter alia,\\n\\nto possess with intent to distribute small amounts of marijuana, while federal law\\n\\nrequired a sale for the crime to qualify as a felony. Id. at 193–95. The Government\\n\\nargued that the Court’s holding would “frustrate the enforcement of other\\n\\naggravated felony provisions, like § 1101(a)(43)(C), which refers to a federal\\n\\nfirearms statute that contains an exception for ‘antique firearms.’” Id. at 205. The\\n\\nCourt rejected the Government’s argument, stating that, given that “Duenas‐\\n\\nAlvarez requires that there be ‘a realistic probability . . . that the State would apply\\n\\n\\n\\n 21\\n\\nits statute to conduct that falls outside the generic definition of a crime[,]’ [t]o\\n\\ndefeat the categorical comparison in this manner, a noncitizen would have to\\n\\ndemonstrate that the State actually prosecutes the relevant offense in cases\\n\\ninvolving antique firearms.” Id. at 205–06 (internal citation omitted).\\n\\n Other than in Duenas‐Alvarez and Moncrieffe, the Supreme Court has not\\n\\nexpanded or again discussed the “realistic probability” approach in the context of\\n\\ndetermining removability. Importantly, the Supreme Court has not yet\\n\\n“specif[ied] what type of evidence may be used to satisfy the ‘realistic probability’\\n\\nrequirement.” Nicanor‐Romero v. Mukasey, 523 F.3d 992, 1005 (9th Cir. 2008),\\n\\noverruled on other grounds by Marmolejo‐Campos v. Holder, 558 F.3d 903 (9th Cir.\\n\\n2009); see also Jean‐Louis v. Att’y Gen., 582 F.3d 462, 481–82 (3d Cir. 2009). Although\\n\\nit is the Government’s burden to prove removability by clear and convincing\\n\\nevidence, 8 U.S.C. § 1229a(c)(3)(A); Woodby v. INS, 385 U.S. 276, 277, 286 (1966),\\n\\nMoncrieffe and Duenas‐Alvarez suggest that it is a noncitizen’s burden to establish\\n\\na realistic probability of being convicted for conduct outside the federal definition,\\n\\nat least in cases where the state and federal statutes appear to be a categorical\\n\\nmatch. See also Hylton v. Sessions, 897 F.3d 57, 63 (2d Cir. 2018) (concluding that\\n\\nthe BIA erred in applying “realistic probability” test where statutes were not a\\n\\n\\n\\n 22\\n\\ncategorical match, but explaining that where there is a match, the noncitizen can\\n\\n“show a ‘realistic probability’ that ‘the State would apply its statute to conduct\\n\\nthat falls outside the generic definition of a crime.’” (quoting Duenas‐Alvarez, 549\\n\\nU.S. at 193)). Because we conclude, as set forth below, that the state and federal\\n\\nstatutes are a categorical match, Matthews has the burden to show that New York\\n\\napplies NYPL § 260.10(1) to conduct that falls outside the BIA’s definition of a\\n\\ncrime of child abuse.\\n\\n C. The BIA’s Definition of a Crime of Child Abuse is a Categorial\\n Match with NYPL § 260.10(1)\\n\\n Section 260.10(1) criminalizes, as relevant here, “knowingly act[ing] in a\\n\\nmanner likely to be injurious to the physical, mental, or moral welfare of a child\\n\\nless than seventeen years old.” New York defines the requisite mens rea,\\n\\n“knowingly,” as follows: “A person acts knowingly with respect to conduct or to\\n\\na circumstance described by a statute defining an offense when he is aware that\\n\\nhis conduct is of such nature or that such circumstance exists.” NYPL § 15.05(2).\\n\\n“Likely” is defined as “probable,” “showing a strong tendency,” or “reasonably\\n\\nexpected.” Black’s Law Dictionary (10th ed. 2014). The New York Court of\\n\\nAppeals has interpreted NYPL § 260.10(1) as requiring both that the defendant\\n\\nacted “with an awareness of the potential for harm” and “that the harm was likely\\n\\n\\n 23\\n\\nto occur, and not merely possible.” People v. Hitchcock, 98 N.Y.2d 586, 590–91 (2002)\\n\\n(emphasis added); see also People v. Johnson, 95 N.Y.2d 368, 372 (2000) (“The\\n\\nLegislature specifically recognized that behavior that was likely to produce harm\\n\\nto a child’s physical, mental or moral well‐being fell within its sweep as long as\\n\\nthe defendant was aware of its potential for harm to a child.”); People v. Simmons,\\n\\n92 N.Y.2d 829, 830 (1998) (“Actual harm to the child need not result for liability\\n\\nunder the statute to attach, it being sufficient that the defendant act in a manner\\n\\nwhich is likely to result in harm to the child, knowing of the likelihood of such\\n\\nharm coming to the child.”).\\n\\n The case law illustrates that although the question of whether a defendant’s\\n\\nconduct is likely to harm a child is highly “fact specific,” evidence of likely harm\\n\\nis required to convict a defendant under NYPL § 260.10(1). Johnson, 95 N.Y.2d at\\n\\n373. In Johnson, the Court of Appeals cited “social science and psychological\\n\\nstudies,” noting “the profound adverse effect on children who witness domestic\\n\\nviolence.” Id. at 372 n.*.\\n\\n In People v. Simmons, the defendant was charged with “repeatedly directing\\n\\nvulgar remarks of a sexual nature” to a child roughly two years old. 92 N.Y.2d at\\n\\n830. The New York Court of Appeals recognized that the “child was in the\\n\\n\\n\\n 24\\n\\nformative stages of speech and learning, had some verbal cognitive abilities and\\n\\nin fact reacted to defendant’s vulgar queries, by answering ‘yes.’” Id. Under these\\n\\ncircumstances, “[t]he jury therefore may reasonably have concluded that the\\n\\ntotality of defendant’s remarks, repeated to the child over a six‐week period at a\\n\\ncrucial stage in her intellectual and social development, would have combined to\\n\\ncreate a likelihood of harm, regardless of the child’s current level of understanding.”\\n\\nId. at 831 (emphasis added). The court recognized that jurors could “draw[] upon\\n\\ntheir common human experience and commonsense understanding of the nature\\n\\nof children” to conclude that the defendant’s “remarks were likely to have caused\\n\\nthe child harm.” Id. (emphasis added). Our own jurisprudence similarly allows\\n\\njurors to rely on common sense and experience to draw inferences such as whether\\n\\na defendant acted with criminal intent. See United States v. Anderson, 747 F.3d 51,\\n\\n70 (2d Cir. 2014) (“[A]lthough the government is not permitted to build a\\n\\nconviction on a house of cards, neither is a jury required to leave its common sense\\n\\nat the courthouse door: ‘Jurors are entitled, and routinely encouraged, to rely on\\n\\ntheir common sense and experience in drawing inferences.’” (quoting United States\\n\\nv. Huezo, 546 F.3d 174, 182 (2d Cir. 2008)).\\n\\n\\n\\n\\n 25\\n\\n New York appellate courts have reversed NYPL § 260.10(1) convictions after\\n\\nfinding insufficient evidence or improper instructions regarding either a\\n\\ndefendant’s knowledge or an actual likelihood of physical, mental, or moral harm\\n\\nto a child. See People v. Hosue, 56 N.Y.S.3d 764, 767–68 (2d Dep’t 2017) (weight of\\n\\nevidence was against guilty verdict for attempted child endangerment where\\n\\ndefendant pushed his seven‐year‐old daughter’s mother during an altercation but\\n\\n“[t]here was no evidence of a history of domestic violence between the parties”);\\n\\nPeople v. Coveney, 21 N.Y.S.3d 523, 528–29 (2d Dep’t 2015) (vacating child\\n\\nendangerment conviction because there was no evidence of any nexus between\\n\\ndefendants’ conduct and a likelihood of harm to the complainant’s children);\\n\\nPeople v. Chase, 720 N.Y.S.2d 707, 709 (2d Dep’t 2000) (requiring a “true likelihood\\n\\nof injury which is not ‘speculative’” and finding that the specific circumstances of\\n\\ndefendant’s driving while intoxicated did not establish either a likelihood of harm\\n\\nor defendant’s knowledge beyond a reasonable doubt); People v. Simmons, 635\\n\\nN.Y.S.2d 373, 374 (4th Dep’t 1995) (“Because the degree of culpability required by\\n\\nthe statute is actual knowledge, it was reversible error to charge the jury that it\\n\\ncould find defendant guilty based upon what he should have known.”).\\n\\n\\n\\n\\n 26\\n\\n As the BIA discussed in Mendoza Osorio, 26 I. & N. Dec. at 707 n.3, New York\\n\\ncriminal courts have also dismissed child endangerment charges as legally\\n\\ninsufficient in cases where the prosecution failed to allege a sufficient, non‐\\n\\nspeculative risk of injury to a child. See People v. Ventura, 801 N.Y.S.2d 241, 2005\\n\\nWL 735873, at *2 (Crim. Ct. 2005) (dismissing complaint as facially insufficient\\n\\nbecause defendant’s act of taking another’s cell phone and throwing it against a\\n\\nwall did not “pose[] a likelihood of either physical or mental harm to the eleven\\n\\nand fourteen year‐olds present”); People v. Grajales, 686 N.Y.S.2d 608, 610 (Crim.\\n\\nCt. 1999) (dismissing child endangerment counts for marijuana possession because\\n\\n“the potential harm to the child cannot be merely remote or speculative in\\n\\nnature”).\\n\\n This is not a situation, therefore, in which the state statute, on its face,\\n\\nstretches further than the BIA’s definition; instead, the state statute and the BIA’s\\n\\ndefinition appear to be a categorical match.9 Compare Mendoza Osorio, 26 I. & N.\\n\\nDec. at 706 (“These elements—a knowing mental state coupled with an act or acts\\n\\ncreating a likelihood of harm to a child—fit within our definition of a ‘crime of\\n\\n\\n\\n9 To the extent that Matthews takes issue with New York’s inclusion of “moral harm” against\\nchildren, we note that the BIA’s definition also encompasses “convictions for offenses involving\\n. . . mental or emotional harm, including acts injurious to morals.” Velazquez‐Herrera, 24 I. & N.\\nDec. at 512.\\n\\n 27\\n\\nchild abuse, child neglect, or child abandonment.’”), with Mathis v. United States,\\n\\n136 S. Ct. 2243, 2251 (2016) (“[T]he elements of Mathis’s crime of conviction . . .\\n\\ncover a greater swath of conduct than the elements of the relevant [federal] offense\\n\\n. . . . Under our precedents, that undisputed disparity resolves this case.”), and\\n\\nHylton, 897 F.3d at 63 (“[T]he statutory language itself . . . creates the realistic\\n\\nprobability that a state would apply the statute to conduct beyond the generic\\n\\ndefinition.” (quoting Ramos v. U.S. Att’y Gen., 709 F.3d 1066, 1072 (11th Cir. 2013)).\\n\\n D. Matthews Has Not Demonstrated a Realistic Probability that the\\n Statute is Applied More Broadly than the BIA’s Definition\\n\\n Where a statute is not facially overbroad, the realistic probability approach\\n\\nrequires a noncitizen to demonstrate “that the State actually prosecutes the\\n\\nrelevant offense in cases” that fall outside the federal definition. Moncrieffe, 569\\n\\nU.S. at 206. Matthews must “at least point to his own case or other cases in which\\n\\nthe state courts in fact did apply the statute in the special (nongeneric) manner for\\n\\nwhich he argues.” Duenas‐Alvarez, 549 U.S. at 193.\\n\\n Matthews does not argue that the facts underlying his convictions do not\\n\\nmatch the BIA’s definition of a crime of child abuse. Rather, he argues that New\\n\\nYork courts have imposed liability for child endangerment in situations that may\\n\\nbe illustrative of “bad parenting” or other “minor missteps,” but do not actually\\n\\n\\n 28\\n\\npose a likelihood of physical, mental, or moral harm to a child. Petitioner’s Br. at\\n\\n50. He points to two categories of cases: “home alone” cases and cases involving\\n\\nthe commission of criminal activity, such as controlled substance use or\\n\\npossession, in the presence of children.\\n\\n For the “home alone” cases, Matthews and the dissent cite People v. Reyes, in\\n\\nwhich a New York criminal court denied a defendant’s motion to dismiss a child\\n\\nendangerment charge as facially insufficient. 872 N.Y.S.2d 692, 2008 WL 3010044\\n\\n(Crim. Ct. Aug. 6, 2008); see N.Y. Crim Proc. Law § 100.40(4)(b) (providing that a\\n\\nmisdemeanor complaint is sufficient on its face when its factual allegations\\n\\n“provide reasonable cause to believe that the defendant committed the offense\\n\\ncharged.”). In Reyes, the complaint alleged that a mother left her four‐year‐old\\n\\nchild home alone for about fifteen minutes in order to get groceries; although the\\n\\nmother stated that the child was asleep when she left and she remained within\\n\\nearshot, the police officer who found the child stated that the child was awake and\\n\\nopened the door for the officers, who were strangers to the child. 2008 WL\\n\\n3010044, at *1–2. The court determined that the allegations in the complaint made\\n\\nout a sufficient likelihood of harm, citing to a case where a four‐year‐old started a\\n\\nfire when left home alone for about ten minutes, and concluded that factual issues\\n\\n\\n\\n 29\\n\\nsuch as whether the child was asleep and whether the defendant remained within\\n\\nearshot were better left for trial. Id. at *3 & n.1. The court stated:\\n\\n We hold that the issue of whether there is some minimum time that a\\n child must be left alone in order to hold a defendant liable under PL\\n § 260.10(1) is ill‐suited for resolution on a motion to dismiss for facial\\n insufficiency. Among the factors which would appear appropriate\\n for consideration are the age of the child, the length of time involved,\\n the maturity of the particular child, and the reason why the child was\\n left alone.\\n\\nId. at *1. If the case proceeded to trial, the prosecution would have been put to its\\n\\nburden to convince a jury that the defendant’s conduct resulted in a likelihood of\\n\\nharm to her child and that the defendant knew that her conduct was likely to result\\n\\nin injury to her child. Reyes and other “home alone” cases illustrate that New York\\n\\ncourts are cognizant of the line between “bad parenting” and child endangerment,\\n\\nand provide prosecutors and juries with guideposts for determining when the\\n\\nfactual circumstances of a case establish culpability under NYPL § 260.10(1).10\\n\\n\\n10Similarly, although New York criminal courts are somewhat divided on whether the possession\\nand use of marijuana and other controlled substances pose a sufficient risk of harm to qualify as\\nchild endangerment, the cases distinguish between situations in which children are actually\\nexposed to controlled substances, and those in which the defendant made an effort to hide or\\nconceal the illicit substances. Compare Grajales, 686 N.Y.S.2d at 609–10 (dismissing endangerment\\ncharges on the basis that “the mere presence of mari[j]uana alone” in an apartment with children\\npresent is not enough to show a likelihood of harm), with People v. Kennedy, 904 N.Y.S.2d 577, 579\\n3rd Dep’t 2010) (affirming child endangerment conviction based on teenage daughters’ repeated\\nexposure to cocaine residue and paraphernalia in defendant’s home). Matthews, moreover, has\\nnot identified any case involving an actual child endangerment conviction that was based upon\\nan overbroad application of the statute to conduct involving the use or possession of a controlled\\n\\n\\n 30\\n\\n The dissent, by contrast, highlights Reyes and other decisions in which New\\n\\nYork trial courts upheld the sufficiency of criminal misdemeanor complaints\\n\\nbrought under Section 260.10(1) for the proposition that the state courts are\\n\\napplying the statute inconsistently and, accordingly, more broadly than the federal\\n\\ndefinition. While we appreciate the dissent’s concern that some statements by trial\\n\\ncourts may not correctly interpret the state statute, there is no question that the\\n\\nstatute, as interpreted by the New York Court of Appeals, is a categorical match\\n\\nwith the BIA’s definition, and there is no New York appellate decision cited by the\\n\\ndissent that has upheld a conviction that sweeps more broadly than the BIA\\n\\ndefinition. The dissent notes correctly that the Supreme Court has yet to articulate\\n\\nthe contours of the “realistic probability” test to argue that our analysis is not so\\n\\nlimited, but it is for this precise reason that we find ourselves constrained from\\n\\nreading these cases as contravening the interpretation espoused by New York’s\\n\\nhighest court.11\\n\\n\\nsubstance. The only controlled substance case he relies on involved a trial court’s denial of a\\nmotion to dismiss. See People v. Alvarez, 860 N.Y.S.2d 745 (Crim. Ct. 2008). In Alvarez, the court\\nrelied on the “strong odor of mari[j]uana throughout the apartment,” which implied that the\\ndefendant had been smoking marijuana while the children were present, as an aggravating factor\\nthat distinguished the case from others involving the mere possession of marijuana. Id. at 747–\\n49.\\n11In Armed Career Criminal Act (“ACCA”) cases, moreover, which also employ the categorical\\napproach and realistic probability test, the Supreme Court and other Courts of Appeals have\\n\\n\\n 31\\n\\n For similar reasons, we decline to rely upon charging documents to alter our\\n\\nanalysis. Amici have submitted several redacted arrest reports, complaints, and\\n\\nmisdemeanor informations that charge defendants with violating NYPL\\n\\n§ 260.10(1) for conduct such as: driving with a suspended license with a child in\\n\\nthe car, shoplifting while caring for an infant or toddler, leaving a nine‐year‐old\\n\\nand sleeping five‐year‐old in a car for ten minutes with the windows open, yelling\\n\\nand knocking items from a shelf in the presence of two children, and smoking\\n\\nmarijuana in a public playground while children are playing. Matthews, amici,\\n\\nand the dissent argue that these charging documents show a realistic probability\\n\\nthat New York prosecutes conduct that only poses a minimal risk of harm to\\n\\nchildren.\\n\\n The Government does not contest the authenticity of these documents,\\n\\nalthough in Matthews’s case the IJ and BIA relied on Mendoza Osorio, a\\n\\n\\n\\n\\nrecognized that federal courts are bound by the highest state court’s interpretations of state law.\\nSee Johnson v. United States, 559 U.S. 133, 138 (2010) (holding that although the meaning of ACCA’s\\nrequirement of “physical force” is a question of federal law, the Court was “bound by the Florida\\nSupreme Courtʹs interpretation of state law, including its determination of the elements of” the\\nFlorida battery statute at issue); United States v. Holloway, 630 F.3d 252, 259–60 (1st Cir. 2011)\\n(citing Johnson for the same proposition); see also United States v. Southers, 866 F.3d 364, 368 (6th\\nCir. 2017) (rejecting notion that defendant’s reliance on Tennessee intermediate appellate court\\ndecisions could satisfy “realistic probability” test to the extent that those “decisions appl[ied] the\\nTennessee robbery statute in a manner . . . inconsistent with Tennessee Supreme Court\\nprecedent.”).\\n\\n 32\\n\\nprecedential case in which the BIA refused to consider charging documents\\n\\nwithout proof of a subsequent conviction, reasoning that “a judge or jury may\\n\\nhave found that the facts as charged were insufficient to support a conviction.” 26\\n\\nI. & N. Dec. at 707 n.4. The fact that Matthews did not submit these documents to\\n\\nthe IJ or BIA prevents us from reviewing them because in the immigration context,\\n\\nwe are strictly constrained to the administrative record. 8 U.S.C. § 1252(b)(4)(A)\\n\\n(“[T]he court of appeals shall decide the petition only on the administrative record\\n\\non which the order of removal is based.”).12\\n\\n Even if we could consider these charging documents, we are not convinced\\n\\nthat they would change the outcome of this case. On the one hand, we recognize\\n\\nthe concern expressed by Matthews, amici, and the dissent that prosecutors may\\n\\nbe overcharging conduct under the child endangerment statute, and that the vast\\n\\nmajority of child endangerment charges result in guilty pleas and minimal\\n\\nsentences. The dissent argues that we can consider these charging documents, in\\n\\n\\n\\n12We have taken judicial notice of material and undisputed changes in country conditions that\\noccur between the BIA’s decision and our review, see Hoxhallari v. Gonzales, 468 F.3d 179, 185 n.5\\n(2d Cir. 2006) (per curiam), but that exception does not apply here. And Matthews and amici have\\nnot provided any information about the court proceedings in which these arrest reports and\\nmisdemeanor charges were filed, such that we might take judicial notice of those proceedings.\\nCf. Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (“[C]ourts routinely\\ntake judicial notice of documents filed in other courts, . . . to establish the fact of such litigation\\nand related filings.”).\\n\\n\\n 33\\n\\ncombination with a high incidence of guilty pleas, to infer that defendants are\\n\\npleading guilty to charges that are broader than the BIA’s definition. Amici,\\n\\nhowever, have not submitted any evidence that these charging documents led to\\n\\nconvictions (whether through guilty pleas or trial), or that any court upheld the\\n\\nallegations in these documents as facially sufficient. Without specific evidence\\n\\nlinking charging documents to guilty pleas, we have no way of knowing the\\n\\ncircumstances of the individual offenses that caused the prosecutors to bring the\\n\\ncharges or the defendants to plead to those charges. Moreover, this is not a\\n\\nsituation where we are without guidance because, as we have previously\\n\\nexplained, New York’s highest court has clarified the least‐acts‐criminalized by\\n\\nNYPL § 260.10(1) and requires a likelihood of harm to a child to support a\\n\\nconviction. For this reason, we agree with the BIA’s decision in Mendoza Osorio\\n\\nand conclude that the charging documents and the cases Matthews and the dissent\\n\\npoint to are not enough to show a realistic probability that NYPL § 260.10(1) covers\\n\\nconduct that falls outside the BIA’s definition of a crime of child abuse.13\\n\\n\\n13The dissent would grant Matthews’s petition on the additional and independent ground that\\nthe BIA’s current definition of “child abuse” cannot be applied retroactively to Matthews’s 2002\\nand 2003 state convictions. Counsel, however, has not raised this issue, and we therefore do not\\nreach it. Nor do we foreclose the possibility that another petitioner might challenge an order of\\nremoval premised on convictions that predated the BIA’s contemporaneous definition in a proper\\ncase.\\n\\n\\n 34\\n\\n CONCLUSION\\n\\n Because we hold that NYPL § 260.10(1) is a categorical match with the BIA’s\\n\\ndefinition of “crime of child abuse,” to which we owe Chevron deference, and\\n\\nbecause Matthews has not established a realistic probability that the statute\\n\\nencompasses conduct that stretches further than the BIA’s definition, we DENY\\n\\nthe petition for review.\\n\\n\\n\\n\\nSimilarly, although we appreciate the policy concerns that Matthews, amici, and the dissent have\\nthoughtfully highlighted—such as the risk of separating families or disqualifying domestic\\nviolence victims from obtaining immigration relief—these concerns are not present in Matthews’s\\ncase, and he has not presented evidence that such concerns have materialized in the context of\\nNew York’s child endangerment law.\\n\\n 35\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2398,"cells":{"id":{"kind":"number","value":4632223,"string":"4,632,223"},"name":{"kind":"string","value":"Tullie HYMAN, Petitioner-Appellee, v. William D. BROWN, Superintendent, Respondent-Appellant"},"name_abbreviation":{"kind":"string","value":"Hyman v. Brown"},"decision_date":{"kind":"string","value":"2019-06-24"},"docket_number":{"kind":"string","value":"16-2723-pr; August Term 2017"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Jacobs, Raggi, Droney\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888785/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888786/\", \"author_raw\": \"\"}, {\"author\": \"REENA RAGGI, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"16‐2723‐pr\\nHyman v. Brown\\n\\n\\n In the\\n United States Court of Appeals\\n for the Second Circuit\\n\\n\\n AUGUST TERM 2017\\n\\n No. 16‐2723‐pr\\n\\n TULLIE HYMAN,\\n Petitioner‐Appellee,\\n\\n v.\\n\\n WILLIAM D. BROWN, Superintendent,\\n Respondent‐Appellant,\\n\\n\\n\\n On Appeal from the United States District Court\\n for the Eastern District of New York\\n\\n\\n\\n ARGUED: NOVEMBER 29, 2017\\n DECIDED: JUNE 24, 2019\\n\\n\\n\\nBefore: JACOBS, RAGGI, and DRONEY, Circuit Judges.\\n ________________\\n\\n\\n On appeal from a judgment of the United States District Court\\nfor the Eastern District of New York (Dearie, J.) granting habeas\\ncorpus relief from a state murder conviction, see 28 U.S.C. § 2254,\\nrespondent challenges the district court’s determinations that (1)\\npetitioner made the gateway showing of actual innocence necessary\\n\\nfor merits review of his procedurally barred claim of ineffective\\nassistance of counsel, and (2) the state court’s rejection of that Sixth\\nAmendment claim was an unreasonable application of clearly\\nestablished Supreme Court precedent. For reasons stated herein, we\\nreject the gateway determination and, therefore, dismiss without\\naddressing the barred Sixth Amendment claim.\\n\\n Judgment REVERSED and Petition DISMISSED.\\n\\n Judge Jacobs concurs in a separate opinion.\\n\\n\\n\\n\\n RANJANA C. PIPLANI, Assistant District\\n Attorney (John M. Castellano, Assistant\\n District Attorney, on the brief), Kew Gardens,\\n New York, for Richard A. Brown, District\\n Attorney, Queens County, for Respondent‐\\n Appellant.\\n\\n GLENN A. GARBER (Rebecca E. Freedman, on\\n the brief), The Exoneration Initiative, New\\n York, New York, for Petitioner‐Appellee.\\n\\n\\nREENA RAGGI, Circuit Judge:\\n\\n Respondent William Brown appeals from a judgment entered\\non July 13, 2016, in the United States District Court for the Eastern\\nDistrict of New York (Raymond J. Dearie, Judge), which, pursuant to\\n28 U.S.C. § 2254, grants petitioner Tullie Hyman relief from a New\\nYork State judgment convicting him of, among other crimes, the\\nsecond‐degree depraved indifference murder of Maria Medina, the\\ninnocent victim of a gunfight bullet gone astray. See Hyman v. Brown,\\n197 F. Supp. 3d 413 (E.D.N.Y. 2016). The district court concluded that\\n\\n\\n 2\\n\\nHyman’s conviction had been obtained in violation of the Sixth\\nAmendment right to effective assistance of counsel because, as the\\nresult of a conflict of interest grounded in a fee dispute with a private\\ninvestigator, counsel failed to call the investigator as a witness at\\nHyman’s trial, where he could have offered evidence to impeach the\\nprosecution’s lead identification witness. See id. at 464–66.\\n\\n When Hyman earlier presented this constitutional claim in a\\ncollateral state challenge to conviction, a New York court rejected it\\non a state procedural ground, as well as on the merits. See People v.\\nHyman, No. 1787/00 (Sup. Ct. Queens Cty. Aug. 4, 2009) (reproduced\\nin App’x 3285–95). The independent procedural ruling erected a bar\\nto federal habeas review that Hyman concedes he cannot overcome\\nby showing good cause to excuse his procedural failure and ensuing\\nprejudice. See House v. Bell, 547 U.S. 518, 536 (2006) (collecting cases\\ndiscussing “cause and prejudice” exception to procedural bar).\\nNevertheless, the law affords another narrow “gateway” to merits\\nreview of defaulted claims for habeas petitioners who can make\\ncredible and compelling showings of actual innocence. Id. at 538. The\\ndistrict court found that Hyman satisfied this demanding standard\\nand, thus, reached the merits of his Sixth Amendment claim. See\\nHyman v. Brown, 197 F. Supp. 3d at 463. Respondent here challenges\\nboth this gateway finding and the district court’s identification of\\nSixth Amendment error.\\n\\n On de novo review of petitioner’s actual innocence claim, see\\nRivas v. Fischer, 687 F.3d 514, 543 (2d Cir. 2012) (stating that actual\\ninnocence determination presents “mixed question of law and fact”\\nreviewed de novo), we conclude that Hyman has not carried his\\ngateway burden. Accordingly, we vacate the challenged judgment\\nand order Hyman’s habeas petition dismissed.\\n\\n\\n\\n 3\\n\\n BACKGROUND\\n\\n In reviewing a gateway claim of actual innocence, a court\\n“must consider all [record] evidence, old and new, incriminating and\\nexculpatory, without regard to whether it would necessarily be\\nadmitted under rules of admissibility that would govern at trial.”\\nHouse v. Bell, 547 U.S. at 538 (internal quotation marks omitted). Our\\nbackground discussion is, therefore, necessarily lengthy.\\n\\nI. Overview\\n\\n On the evening of March 10, 2000, Maria Medina was\\nperforming volunteer “tenant patrol” duty in the lobby of 1540\\nHassock Street, the Queens apartment building where she resided\\nwithin the Redfern public housing project.1 At approximately 7:00\\np.m., a shootout erupted in the street in front of that building (“March\\n10 shootout”). Within minutes, more than thirty bullets were fired\\nfrom at least four different weapons. One of these bullets entered the\\nlobby and killed Ms. Medina.\\n\\n New York State charged four persons with crimes relating to\\nthe March 10 shootout: Jonathan Whitmore and Derek Harris, who\\nwere thought to have been shooting from the fence and walkway\\nadjoining 1540 Hassock Street toward the street; and Osimba Rabsatt\\nand petitioner Tullie Hyman, who were thought to have been\\nshooting from the street toward the building. Only Rabsatt and\\nHyman stood trial. Whitmore and Harris each pleaded guilty to\\n\\n\\n\\n\\n1 Tenant patrol is a program whereby residents of public housing volunteer to provide\\nservices, such as signing in visitors, to enhance the security of their homes. See Trial Tr. at\\n779–80; see also Engagement, N.Y.C. PUB. HOUS. AUTH., https://www1.nyc.gov/site/ny‐\\ncha/residents/getting‐involved‐as‐a‐resident.page (last visited June 21, 2019).\\n\\n\\n 4\\n\\ncriminal possession of a weapon and were sentenced to respective\\nprison terms of seven years and two years.\\n\\n At the Rabsatt‐Hyman trial, the prosecution’s theory was that,\\non the night of March 10, these two men drove to 1540 Hassock Street\\nin a red Acura (Rabsatt) and a green Mazda (Hyman), double‐parked\\nthe cars across from 1540 Hassock Street—with their passenger sides\\ntoward the middle of the street and facing 1540—and proceeded to\\nengage in a gunfight with Whitmore and Harris. Rabsatt successfully\\nchallenged this theory by offering alibi evidence placing him\\nelsewhere at the time of the gunfight. The jury acquitted him on all\\ncounts. Not so Hyman, who did not dispute being at the shootout in\\na green Mazda, but who maintained that he was an unarmed victim\\nof, rather than a participant in, the gunfight. Finding otherwise, the\\njury returned a guilty verdict against Hyman for second‐degree\\ndepraved indifference murder, see N.Y. Penal Law § 125.25(2);\\ncriminal possession of a weapon in both the second and third degrees,\\nsee id. §§ 265.03(1), (2); and first‐degree reckless endangerment, see id.\\n§ 120.25.2 Sentenced to a total prison term of 21 years to life for these\\ncrimes,3 Hyman began serving his sentence in June 2002, and\\nremained incarcerated until October 2016, when he was released\\npursuant to the July 2016 habeas judgment granting such relief unless\\nthe state took substantial steps to retry Hyman within 90 days. Failing\\nto procure a stay of that order, the state released Hyman and timely\\nappealed.\\n\\n\\n2 The jury acquitted Hyman on one count: the second‐degree attempted murder of\\nJonathan Whitmore. See N.Y. Penal Law §§ 110.00, 125.25.\\n\\n3 The state court sentenced Hyman to concurrent prison terms of 21 years to life for second‐\\ndegree depraved indifference murder, 15 years for criminal possession of a weapon in the\\nsecond degree, seven years for criminal possession of a weapon in the third degree, and\\ntwo to six years for reckless endangerment.\\n\\n\\n 5\\n\\nII. State Proceedings\\n\\n A. Trial\\n\\n 1. Trial Evidence\\n\\n To secure Hyman’s conviction, the state offered evidence\\ngenerally falling into three categories: (1) Hyman’s own statements to\\nthe authorities, (2) eyewitness accounts of the shootout, and (3)\\nforensic evidence of the crime scene. Hyman offered no evidence in\\ndefense.\\n\\n Hyman’s Statements\\n\\n i. March 11, 2000\\n\\n On March 11, 2000, upon learning that police were looking for\\nhim in connection with the prior night’s shootout, Hyman voluntarily\\nsurrendered himself at the 113th precinct in Queens, New York.\\nWaiving his Miranda rights, Hyman admitted being present during\\nthe shootout, but denied firing a weapon. To the contrary, he\\nreported being unarmed when he went to 1540 Hassock Street to pick\\nup his girlfriend, Shakina Harris4 and, there, was ambushed by men\\nshooting at him. Hyman then gave police a sworn statement, which\\na detective read to the jury as follows:\\n\\n On Friday [i.e., March 10, 2000] when I [i.e., Hyman] came\\n home from court Shakina called me and we were going\\n to meet later 8:00 or 9:00. I would pick her up at her\\n building, the last one. I drove down the street, the one\\n way and pulled up behind a white civic. I put [on] my\\n hazard indicators, took the car out of gear, put it in\\n neutral and pulled the emergency brake up.\\n\\n4 Shakina Harris is the sister of Derek Harris, one of the charged shooters in the case.\\n\\n\\n 6\\n\\n I looked over by the stores and the building. No one was\\n there. Dark station wagon was backing across from me.\\n Then I heard three or four shots. I looked in my door\\n mirror and saw two guys coming up behind me from the\\n sidewalk firing. I got low in the car. I tried to put the car\\n in gear but it stalled out. I got it back on. I saw two guys\\n get out of the wagon and they were firing in my angle. I\\n got the car in reverse and went around the civic. I made\\n a left at the light and went to my brother’s house and told\\n him what happened. Grabbed some clothes. Called my\\n girlfriend and left.\\n\\nTrial Tr. at 1388–89.\\n\\n ii. March 12, 2000\\n\\n The following day, Hyman again waived his Miranda rights\\nand told police that he had driven to 1540 Hassock Street on March\\n10 in a red Acura. After Hyman stopped the car, two men emerged\\nfrom the car parked behind his and began shooting at him. Other\\npersons also fired at Hyman from the side of his car before he fled the\\nscene.\\n\\n Approximately two hours later, and after Hyman spoke with\\nhis mother, he revised his account, telling police that he had not\\ndriven to Hassock Street in a red Acura, although he had driven such\\na car in the recent past. Rather, he had driven to Hassock Street in a\\ngreen Mazda that he “just recently bought.” Id. at 870.5\\n\\n\\n\\n\\n5Police recovered the green Mazda from Hyman’s aunt’s garage. They elsewhere located\\na red Acura linked to Hyman by papers found therein, specifically, a benefits card and a\\ncourt summons in his name.\\n\\n\\n 7\\n\\n iii. June 8, 2000\\n\\n On June 8, 2000, Hyman testified before a grand jury,\\nmaintaining that he went to 1540 Hassock Street on March 10 to pick\\nup his girlfriend; that he was unarmed; that after he parked, he “heard\\nmultiple shots coming from the back of [his] car,” id. at 1725; that four\\npeople fired at him, “two from the left side and two from the right\\nside,” id. at 1731; and that, in the course of the shooting, the glass from\\nthe “passenger side window” of his car “popped in [his] face,” id. at\\n1734. Hyman also testified that he had driven to Hassock Street by\\nhimself in a green Mazda MX6, not in a red Acura. He acknowledged\\nthat, before acquiring the green Mazda, he had driven a red Acura,\\nbut he said that car was not at the shootout scene. Hyman also denied\\nknowing Jonathan Whitmore, threatening him, or recognizing him at\\nthe shootout scene.\\n\\n Eyewitness Testimony\\n\\n While Hyman’s own statements thus established his presence\\nat the March 10 shootout as the sole occupant of a green Mazda, the\\nstate relied on four eyewitnesses—Margaret Contreras, Lynn Burton,\\nDeborah McCoy, and Shaquana Ellis—to establish that Hyman was\\nnot an unarmed ambush victim but a shooting participant in the\\ngunfire exchange. Each woman testified to seeing gunshots fired\\nfrom, or by the occupant of, the green Mazda, but only Ellis would\\nspecifically identify Hyman as that shooter. Her recantation of that\\nidentification is the basis for Hyman’s actual innocence claim.\\n\\n i. Margaret Contreras\\n\\n Margaret Contreras testified that she was on tenant patrol with\\nMaria Medina and Shereda Freeman on March 10, 2000, when she\\n\\n\\n\\n 8\\n\\nheard several gunshots, one of which struck Medina.6 As she and\\nFreeman pulled the injured Medina toward the elevator, Contreras\\nsaw, through the lobby door, a “dark greenish” car parked in the\\nstreet. Id. at 1038. The car’s window was down, and Contreras there\\nsaw “something silverish” that “looked like a gun but it was like a\\nflash.” Id. Contreras acknowledged that she did not mention the car\\nor any gunfire flash in her initial police interview, explaining that\\n“[n]o one ever asked” about “what happened outside of the\\nbuilding.” Id. at 1096. She explained that she disclosed these facts\\nwhen prosecutors showed her a photograph of a car—Hyman’s green\\nMazda—and asked if she had ever seen it. She told them it looked\\nlike the car outside her building on March 10 and then recounted\\nwhat she had seen. Contreras testified that things were happening\\n“really fast” on the night of the shootout, id. at 1040, and that her focus\\nwas on getting Medina to safety rather than on trying to “see\\nsomething” outside, id. at 1049. Nevertheless, she did not waver in\\nher testimony to seeing a flash of gunfire coming from the window of\\nthe dark green car parked outside her building on March 10.\\n\\n Although Contreras had never told prosecutors that she could\\nidentify anyone involved in the shootout, on cross‐examination she\\nstated for the first time that, on the evening of March 10, she had seen\\nWhitmore, her neighbor, enter 1540 Hassock Street carrying a gun.\\nLater that night, Whitmore knocked on Contreras’s door and told her\\nthat he was “very sorry about all this stuff that happened.” Id. at 1084.\\nContreras stated that she had not previously told anyone about seeing\\nWhitmore because she was worried for her 16‐year‐old son.\\n\\n\\n\\n\\n6Shereda Freeman would also testify at trial, but only to her efforts to assist Maria Medina.\\nShe offered no evidence about the shootout.\\n\\n\\n 9\\n\\nContreras was, in fact, moved out of her building soon after the March\\n10 shootout.\\n\\n ii. Lynn Burton\\n\\n Lynn Burton testified that she was in the bedroom of her third‐\\nfloor apartment at 1540 Hassock Street when she heard gunfire erupt\\non the evening of March 10. From a window of her apartment facing\\nthe street, Burton saw three cars double‐parked in front of the\\nFriendly market across the street: “a green jeep, a red color car with\\ndark tinted windows,” and “behind that . . . a dark colored car.” Id.\\nat 1594. Burton initially told police the last car was a black or dark\\nAltima, but, subsequently, and at trial, she identified the “dark\\ncolored car” as Hyman’s green Mazda.7 Burton testified that she saw\\n“shots being fired” from “the red vehicle and the dark colored vehicle\\nthat was behind the red vehicle,” but that she did not see who fired\\nthem. Id. at 1594–95. What she saw “was some fire coming out of a\\nwindow.” Id. at 1628. Burton did not see anyone standing near or\\nleaning out of the cars. Nor did she see Whitmore, whom she knew\\nwell because his mother lived at 1540 Hassock Street.\\n\\n iii. Deborah McCoy\\n\\n Deborah McCoy resided in a building across from 1540\\nHassock Street. She testified that after hearing gunshots on the\\nevening of March 10, she ran to the kitchen window of her seventh‐\\nfloor apartment, from where she saw a red Acura parked in front of\\nwhat she initially described as a “black” car, but which she\\nsubsequently stated looked like Hyman’s dark green Mazda as\\n\\n7 Specifically, Burton was shown two photographs in evidence of the green Mazda that\\nHyman admitted to driving to 1540 Hassock Street on March 10 and that police recovered\\nfrom his aunt’s garage. Burton testified that it looked like the car from which she had seen\\nshots fired on March 10.\\n\\n\\n 10\\n\\ndepicted in police photographs. Id. at 1783. McCoy testified that\\nshots “first came from the cars.” Id. at 1813. She identified one\\nshooter, standing near the driver’s side of the red car, as Osimba\\nRabsatt, whom McCoy knew from high school. She saw another\\nman—whom she could not identify—get out of the dark car, fire a\\ngun, and then get back into the car. McCoy testified that she also saw\\nWhitmore and Harris shooting toward the cars as they ran along a\\nwalkway toward the entry of 1540 Hassock Street. McCoy knew\\nWhitmore because she is his sister’s godmother and Whitmore’s\\nmother is godmother to McCoy’s son. McCoy telephoned 911 to\\nreport the shootout, but did not then mention any participants by\\nname.8\\n\\n iv. Shaquana Ellis\\n\\n Shaquana Ellis testified that, at the time of the March 10\\nshootout, she was standing in the third‐floor hallway of 1540 Hassock\\nStreet with two friends, Amanda Benitez and Shaquana Delain.\\nThrough a hallway window, Ellis saw two cars pull up to the\\nbuilding: a red Acura with tinted windows and a green Mazda. After\\nthe cars “sat there” for a while, Ellis saw “Tullie,” i.e., Hyman,\\n“hanging out the . . . window, from the passenger side” of the green\\ncar, “just fir[ing] off” gunshots. Id. at 1550–51. Ellis testified that she\\nnever actually saw a gun; rather, she saw about five flashes of light,\\nwhich looked like “fire, like red come out of the gun,” coming from\\nHyman’s direction. Id. at 1553. Ellis stated that she did not see\\nWhitmore, Harris, or anyone else at the shootout scene.\\n\\n\\n\\n\\n8The jury heard that nine 911 calls reported the shootout. Five calls did so generally. One\\ncaller reported a man with a gun in front of the building. Two callers (one of whom placed\\ntwo calls) identified Whitmore as a shootout participant.\\n\\n\\n 11\\n\\n Ellis admitted not reporting these events to the police when\\nfirst interviewed. At that time, she told authorities she had not seen\\nthe shooting at all. Ellis, nevertheless, denied telling friends or a\\nprivate investigator that she had not seen the shootout. She also\\ndenied that Whitmore had paid her to incriminate Hyman, although\\nshe acknowledged that Whitmore had corresponded with her from\\nprison.\\n\\n Forensic Evidence\\n\\n Within twenty minutes of the March 10 shootout, police had\\nsecured the area in front of 1540 Hassock Street and started to collect\\nevidence. Much of the ballistic evidence gathered indicated that\\nbullets were fired not only at, but also from, Hyman’s green Mazda.\\n\\n The recovery of four discharged .45 caliber shell casings and\\nfourteen discharged 9mm shell casings from the middle of Hassock\\nStreet indicated gunshots fired in that vicinity, which was consistent\\nwith the location of cars double‐parked there on March 10, including\\nHyman’s green Mazda. Meanwhile, twelve discharged .380 caliber\\nshell casings were recovered from the fence and walkway bordering\\nthe front of 1540 Hassock Street. This corresponded to Deborah\\nMcCoy’s account of Whitmore and Harris firing gunshots at the\\nparked cars as the two men ran toward the building.\\n\\n Police matched most of these shell casings to firearms\\nrecovered at the scene. Specifically, six of the twelve .380 caliber shell\\ncasings—i.e., casings for bullets fired from 1540 Hassock Street—were\\nmatched to a .380 caliber handgun found on the rear lawn of the\\nbuilding. Whitmore would later admit firing that gun during the\\nMarch 10 shootout. The other six .380 caliber casings went\\nunmatched. Meanwhile, all recovered .45 caliber and 9mm casings—\\n\\n\\n 12\\n\\ni.e., casings for bullets fired from the vicinity of the double‐parked\\ncars—were matched to a .45 caliber handgun and an Intratech 9mm\\nsemiautomatic pistol found inside the spare tire wheel well of\\nWhitmore’s Ford Taurus.9 At trial, the prosecution took the position\\nthat the bullet that killed Ms. Medina came from one of these two\\nguns, which had been fired toward 1540 Hassock Street by Hyman\\nand Rabsatt.10 To explain how guns fired by Hyman and Rabsatt\\nwound up in Whitmore’s car, the prosecution suggested that\\nsomeone might have planted them there to divert attention from\\nHyman and Rabsatt. Finally, no ballistic evidence was matched to\\nanother 9mm handgun, found broken into eight parts in a trash\\ncompactor inside 1540 Hassock Street.\\n\\n Police further discovered that bullets had penetrated the door\\nand rear lobby of 1540 Hassock Street. The height of some bullet\\nholes—1’10” and 1’5.75” above ground level—was consistent with\\nshots being fired toward the building from the window level of a car\\nin the street. Bullet marks were also found in a second‐floor\\napartment of 1540 Hassock Street, the Friendly market across the\\nstreet, and three parked cars.\\n\\n Meanwhile, when police subsequently recovered Hyman’s\\ngreen Mazda, they saw bullet damage concentrated on the vehicle’s\\nfront hood, front passenger door, and right rear bumper, which was\\nconsistent with bullets fired from the direction of 1540 Hassock Street.\\nThere was no bullet damage to the car’s rear area or to its left side,\\n\\n\\n\\n\\n9Police had secured that car in the vicinity of 1540 Hassock Street on March 10, but did not\\nsearch it until a few weeks later.\\n\\n10 Apparently, the state did not test the bullet killing Ms. Medina to confirm this theory.\\n\\n\\n 13\\n\\nalthough Hyman had claimed that assailants had fired at him from\\nthe rear and from both sides of the vehicle.\\n\\n Forensic examination also determined that the Mazda’s front\\npassenger window was open during the shootout—as some\\neyewitnesses had reported—because the shattered window was\\ninside the door’s window track and there was a bullet hole in the door\\nbelow the track.\\n\\n B. Conviction and Direct Appeal\\n\\n After the jury found Hyman guilty, and the case proceeded to\\nsentencing, Hyman’s counsel advised the court that a defense private\\ninvestigator, Kevin Hinkson, had procured a statement from Amanda\\nBenitez that impeached Shaquana Ellis’s trial testimony about\\nwitnessing the March 10 shootout. Construing the disclosure as a\\nrequest for adjournment of sentence in anticipation of a formal\\nmotion to vacate the verdict as required by N.Y. Crim. Proc. Law\\n§ 330.30, the trial court declined to grant such relief in light of two\\nprior adjournments of sentence. Thus, on May 15, 2002, it sentenced\\nHyman to a total of 21‐years‐to‐life imprisonment.\\n\\n Hyman unsuccessfully appealed his conviction, first to the\\nAppellate Division, which unanimously affirmed, see People v. Hyman,\\n15 A.D.3d 417, 788 N.Y.S.2d 863 (2d Dep’t 2005), and then to the New\\nYork Court of Appeals, which denied review, see People v. Hyman, 4\\nN.Y.3d 854 (2005).\\n\\n\\n\\n\\n 14\\n\\n C. Collateral Challenges to Conviction\\n\\n 1. First § 440 Motion\\n\\n On April 28, 2005, Hyman moved for collateral relief pursuant\\nto N.Y. Crim. Proc. Law § 440, seeking DNA testing of the 9mm\\nhandgun recovered from Whitmore’s car. The state court denied the\\nmotion, concluding that Hyman failed to show that DNA testing\\nwould have resulted in a favorable verdict. See People v. Hyman, 51\\nA.D.3d 689, 863 N.Y.S.2d 240 (2d Dep’t 2008), denying leave to appeal,\\n10 N.Y.3d 960 (2008).\\n\\n 2. Second § 440 Motion\\n\\n On July 7, 2008, Hyman filed a second § 440 motion based on\\n(1) newly discovered evidence, specifically, Ellis’s recantation of her\\ntrial testimony; and (2) ineffective assistance of counsel in failing to\\ncall investigator Hinkson as a trial witness to impeach Ellis. Various\\naffidavits were offered to support the motion.\\n\\n a. Kevin Hinkson\\n\\n Investigator Hinkson stated that, in anticipation of Hyman’s\\ntrial, he had inspected the third‐floor hallway at 1540 Hassock Street\\nand determined that it would have been “impossible” for Ellis “to\\nobserve the events of the shooting” from windows therein. Second\\n440, Exh. Q. Hinkson reported providing defense counsel with\\nphotographs and a video recording of the hallway supporting this\\nopinion.11 Also prior to trial, Hinkson provided counsel with an\\nunsigned statement from Amanda Benitez in which she admitted\\n\\n11Only photocopies of Hinkson’s photographs were attached to his § 440 affidavit, the\\noriginal photos and videotape having been lost. Although the copies are dark, they appear\\nto show that the street area where the shootout occurred could be seen from the third‐floor\\nhallway window.\\n\\n\\n 15\\n\\nthat, contrary to what she had told police and to what Ellis had\\ntestified at trial, Benitez and Ellis had not been at a third‐floor\\nwindow of 1540 Hassock Street at the time of the March 10 shootout.\\n\\n Hinkson stated that trial counsel never discussed any of this\\nevidence with him and never sought his testimony at Hyman’s trial.\\nHinkson further stated that he has never been paid for his services on\\nHyman’s case. While trial counsel told him that Hyman’s family\\nwould pay Hinkson directly, Hyman’s father told Hinkson that he\\nhad given counsel $2,500 to pay the investigator.12\\n\\n b. Amanda Benitez\\n\\n On March 21, 2002—approximately a week after the jury found\\nHyman guilty—Benitez swore to the statement she had earlier given\\nHinkson, and Hyman offered that sworn statement in support of his\\nsecond § 440 motion. Therein, Benitez admitted that she had not seen\\nthe March 10 shootout from the third‐floor hallway window of 1540\\nHassock Street. She stated that she arrived at the building only after\\npolice were already at the scene. Benitez then went to “Donald’s”\\nthird‐floor apartment, where Shaquana Ellis, Shaquana Delain, and\\nothers had already gathered. Second 440, Exh. J. They stayed in the\\napartment “all night because the police would not let us out.” Id.\\nWhen police came to speak with them the next morning,\\n\\n Shaquana Ellis pulled me [i.e., Benitez] aside and told me\\n to lie to the police and tell them I saw what happened.\\n Shaquana told me a story to tell the police about my\\n seeing Tully [Hyman] shooting a gun at Jonathan\\n [Whitmore]. Shaquana Ellis was a friend of Jonathan\\n\\n\\n12In a sworn affidavit, Hyman’s father, James Sanders, stated that he was “positive” he\\nhad given trial counsel $2,500 to pay for a private investigator, although trial counsel\\nclaimed never to have received that money. Second 440, Exh. P.\\n\\n\\n 16\\n\\n Whitmore and Jonathan’s friends. I never did see Tully\\n that night because I was not there when everything\\n happened. . . . I told the police I was not there when it\\n happened and that I did not know anything. The police\\n kept telling me that I did see what happened and if I did\\n not tell them, I would be arrested. . . . I told them the story\\n Shaquana had told me to say and they wrote it down.\\n\\nId.\\n\\n c. Stacey Manning\\n\\n In another affidavit, Ellis’s friend, Stacey Manning, recounted\\nthat, in the summer of 2002, Ellis told Manning that “she [i.e., Ellis]\\ndidn’t see who was shooting” during the March 10 gunfight, but she\\nfalsely testified in order “to help her cousin’s baby’s father, a guy\\nnamed Jonathan Whitmore.” Second 440, Exh. T. Manning said Ellis\\nprofessed fear that authorities “w[ould] lock her up” if she now said\\nthat she had lied. Id.\\n\\n d. Irwin Blye\\n\\n Irwin Blye, a private investigator retained in connection with\\nHyman’s § 440 motion, submitted an affidavit stating that, on\\nSeptember 7, 2005, he conducted an audiotaped interview with\\nShaquana Ellis who admitted that she had not seen the March 10\\nshootout. Ellis said she was inside an apartment when she heard—\\nbut did not see—the shooting occur. Ellis stated that she testified to\\nseeing Hyman firing a gun because she had been threatened by\\n“people from the neighborhood.” Second 440, Exh. U. She said that\\nsomeone called her home, told her what had happened, and what she\\nshould tell police. See Hyman v. Brown, 197 F. Supp. 3d at 439. Ellis\\ntold Blye that she had admitted not seeing the shootout to Amanda\\n\\n\\n\\n 17\\n\\nBenitez.13 She did not withdraw her statement to the police for fear\\nof prosecution, but she felt “‘real bad’ because Mr. Hyman does not\\ndeserve to be in jail.” Second 440, Exh. U.\\n\\n e. Robert DiDio\\n\\n Hyman’s § 440 counsel, Robert DiDio, filed an affirmation\\nstating that Ellis had confirmed to him what she had told Blye, i.e.,\\nthat she had not witnessed the March 10 shootout. Ellis refused,\\nhowever, to sign an affidavit to that effect and was evading a private\\ndetective trying to locate her.\\n\\n f. Ruling\\n\\n The state court denied Hyman’s second § 440 motion, rejecting\\nhis newly discovered evidence claim on the ground that Ellis had not\\nprovided a sworn recantation of her trial testimony as required by\\nN.Y. Crim. Proc. Law § 440.30(1)(a). The court declined to pursue the\\nmatter at a hearing because Ellis then resided outside the court’s\\njurisdiction and, thus, could not be compelled to appear. As for\\nHyman’s ineffective assistance claim, the court concluded that\\nHyman had defaulted the point by not raising it on direct appeal\\ndespite a record basis to do so. See id. § 440.10(2)(c). In any event,\\nthe court rejected the claim on the merits, finding that Hinkson’s\\naffidavit did not convincingly establish that he had viewed the correct\\n\\n\\n\\n\\n13Ellis’s claim that it was in a threatening phone call to her home that she was told what to\\ntell police is at odds with Benitez’s claim that Ellis told her falsely to report seeing the\\nshooting on the morning of March 11 before these women had been able to leave 1540\\nHassock Street. See supra at 16. Ellis’s claim that she lied because she was threatened is\\nalso at odds with Manning’s report that Ellis told her she did so because Whitmore was\\nthe father of her cousin’s baby. See supra at 17.\\n\\n\\n\\n 18\\n\\nlocations in challenging Ellis’s viewpoint, and that counsel’s decision\\nto forgo Hinkson’s testimony may have been strategic in any event.\\n\\n 3. Coram Nobis Motion\\n\\n Hyman thereafter moved for coram nobis relief, claiming the\\nineffective assistance of appellate counsel. The state court rejected the\\nclaim on the merits. See People v. Hyman, 73 A.D.3d 1211, 900 N.Y.S.2d\\n918 (2d Dep’t 2010), denying leave to appeal, 15 N.Y.3d 806 (2010).\\n\\nIII. Federal Habeas Proceeding\\n\\n On August 26, 2010, Hyman filed the instant § 2254 petition pro\\nse, raising eight grounds for vacating his state conviction. The district\\ncourt appointed counsel, who pursued only two claims: the\\nineffectiveness of trial counsel and actual innocence. Counsel\\nmaintained that Hyman’s conviction had been obtained in violation\\nof the Sixth Amendment because his trial attorney had operated\\nunder a conflict of interest grounded in a fee dispute with investigator\\nHinkson, which resulted in the attorney not calling Hinkson as a trial\\nwitness to impeach Shaquana Ellis’s identification. Recognizing that\\nthis Sixth Amendment claim was barred from federal review because\\nthe state court had rejected it, in the first instance, on a state\\nprocedural ground, and conceding that Hyman could not excuse the\\ndefault through a showing of good cause and prejudice, counsel\\nattempted to lift the bar by making a gateway showing of Hyman’s\\nactual innocence. See Schlup v. Delo, 513 U.S. 298, 314–15 (1995).\\n\\n To make this gateway showing, and to demonstrate a Sixth\\nAmendment violation, Hyman relied both on evidence proffered in\\nsupport of his second § 440 motion (already discussed supra at 15–18)\\nand on evidence developed at a three‐day hearing conducted by the\\ndistrict court in December 2015 and January 2016.\\n\\n 19\\n\\n A. Hyman’s Habeas Hearing Evidence\\n\\n 1. Shaquana Ellis\\n\\n With the benefit of both court‐appointed counsel and a promise\\nfrom the Queens District Attorney not to prosecute her for perjury at\\nHyman’s trial, Ellis testified in the district court that she did not\\nwitness the March 10 shootout and, thus, lied in testifying that she\\nhad at Hyman’s trial. Ellis stated that, on March 10, she was outside\\n1540 Hassock Street when she saw Hyman pull up to that building in\\na green car, but she did not see him carrying or firing a gun. When\\nshe heard gunshots, Ellis ran into the building, going to Apartment\\n3A, where she saw Amanda Benitez and Shaquana Delain. Ellis said\\nthat her trial testimony, professing to have been with these women at\\nthe hallway window when the shooting occurred, was untrue. The\\nonly thing she saw from the hallway window on the night of March\\n10 was the lights of emergency vehicles responding to the shooting.\\n\\n Ellis stated that she falsely testified to witnessing the shooting\\nbecause “my life and my family life was threatened.” Habeas Hearing\\nTr. at 36. Ellis explained that, as she was walking home alone at\\napproximately 2:00 a.m. on March 11, an unknown individual, who\\n“had a hoodie and a bandana around [his] face,” exited a vehicle that\\nhad pulled up beside her and pointed a gun at her face. Id. The man\\ntold Ellis that if she “didn’t go and point Tullie out in a lineup, that\\nthey were going to come kill [her] and [her] family.” Id. The hooded\\nindividual, along with the car’s driver, instructed Ellis to tell police\\nthat there were red and green cars at the shootout. Ellis said that she\\nherself fabricated the detail about seeing flashes coming from\\nHyman’s hands to make her account “convincing.” Id. at 72.\\n\\n\\n\\n\\n 20\\n\\n The district court, whose opinion carefully details\\ninconsistencies and implausibilities in Ellis’s testimony, found her to\\nbe a “facile liar” and observed that “several features of [her]\\ntestimony were effectively undermined on cross‐examination,”\\nnotably, her account of the threat she claimed to have received the\\nnight of the shooting. Hyman v. Brown, 197 F. Supp. 3d at 445, 461.\\nNevertheless, the court concluded that the “critical admission” that\\nshe had not seen the shootout or Hyman firing a weapon, “rings very\\ntrue,” a conclusion reinforced by “other” corroborating evidence and\\nby the state’s failure to “impugn[] Ellis’s motive for recanting.” Id. at\\n461 (emphasis in original).\\n\\n 2. Amanda Benitez\\n\\n Amanda Benitez testified that neither she nor Ellis arrived at\\n1540 Hassock Street until after the shooting was over and police\\nalready had secured the crime scene. Benitez did not speak with Ellis\\nuntil the morning after the shooting, when Ellis said that her\\nboyfriend, Shah, wanted Ellis and Benitez to tell police “that Tullie\\n[Hyman] was the shooter,” Habeas Hearing Tr. at 132, that the cars\\ninvolved were green and red, and that Hyman “was hanging out the\\ncar shooting,” id. at 136. Ellis said she was going to tell this story\\nbecause she did not want Shah to go to jail, which led Benitez to think\\nthat Shah might have been involved in the shootout.14 Benitez told\\nEllis she did not want to give this story, and when police interviewed\\nBenitez, she stated that she did not know anything about the shooting\\nbecause she did not see it. Only after police insisted that she must\\nknow something, did Benitez tell the story Ellis had given her, making\\nclear that she had no personal knowledge of events, but was reporting\\n\\n14 This is the third motive identified for Ellis’s false testimony in the state trial, Ellis herself\\nascribing it to death threats and Manning reporting Ellis’s wish to help Whitmore, the\\nfather of her cousin’s baby.\\n\\n\\n 21\\n\\nonly what she had heard. Benitez claimed that a disclaimer to this\\neffect was written at the top of her police statement when she signed\\nit, even though no such statement appeared on the signed document\\noffered into evidence at the hearing.\\n\\n The district court observed that while, “[i]n many respects,\\nBenitez exuded credibility,” her testimony was “problematic” in its\\n“selective disavowals” of certain prior statements and the “patent\\nincredibility” of her claim to have signed a statement for the police\\ncontaining a now‐missing disclaimer. Hyman v. Brown, 197 F. Supp.\\n3d at 462. On balance, the district court concluded that Benitez’s\\n“hearing testimony reliably support[ed] the narrow point for which it\\nwas offered, [i.e.,] as independent proof that Ellis was not present\\nduring the shooting and thus as corroboration of the basic premise of\\nthe recant.” Id.\\n\\n 3. Shaquana Delain\\n\\n Shaquana Delain, who had grown up with Ellis and Benitez,\\ntestified that, on the night of March 10, 2000, she was not with Ellis\\nand Benitez in the third‐floor hallway as Ellis had testified at trial.\\nRather, Delain was inside an apartment at 1540 Hassock Street. She\\nheard no gunshots and learned about the shootout only when a\\nbuilding resident told her about it. The district court found Delain’s\\ntestimony wholly believable. See id. at 452.\\n\\n 4. Kevin Hinkson\\n\\n Finally, the district court heard Kevin Hinkson testify to why\\nhe concluded it would have been impossible for anyone to have\\nwitnessed the shootout from the third‐floor hallway. The court\\nobserved that this testimony “essentially track[ed] the substance of\\n[Hinkson’s] 440 affidavits” and did not “add materially to the actual\\n\\n 22\\n\\ninnocence analysis.” Id. The court did, however, rely on Hinkson’s\\ntestimony in addressing the merits of Hyman’s Sixth Amendment\\nclaim.\\n\\n B. Respondent’s Evidence\\n\\n In rebuttal, respondent offered evidence developed during the\\nMedina murder investigation but not introduced at trial, specifically,\\nstatements inculpating Hyman by shooter Jonathan Whitmore and\\neyewitness Joseph Howard.15\\n\\n 1. Jonathan Whitmore\\n\\n In a written statement to the police dated March 11, 2000,\\nWhitmore admitted firing gunshots at Hyman the prior evening, but\\ncharacterized his actions as defensive. Whitmore stated that he had\\nbeen afraid of Hyman for some weeks after a friend told him about a\\nnote left on another friend’s car stating, “I hope you[‘re] bulletproof,”\\nsigned, “red Ac.” Habeas Exh. G‐14a. Although Whitmore never saw\\nthe note, he interpreted it as a threat to himself, understanding “red\\nAc” to refer to Hyman’s red Acura and believing that Hyman was\\nupset by Whitmore “trying to talk to his girl.” Id.\\n\\n In a videotaped interview the same day, Whitmore stated that\\nhe had never met Hyman, but knew that he had owned a red Acura\\nand recently acquired a green Mazda MX6. In the weeks before the\\nshootout, Whitmore’s friends told him that Hyman was driving\\naround 1540 Hassock Street looking for Whitmore. Although he\\ninitially tried to hide whenever he saw the red Acura, Whitmore\\neventually decided to protect himself and, toward that end, placed a\\n\\n\\n15Whitmore’s statements were held inadmissible at the Hyman‐Rabsatt trial pursuant to\\nBruton v. United States, 391 U.S. 123 (1968).\\n\\n\\n 23\\n\\n.380 caliber gun inside a box, inside a bag, just over the fence in front\\nof 1540 Hassock Street.\\n\\n Whitmore stated that, on the evening of March 10, 2000, he was\\noutside 1540 Hassock Street, talking with Shaquana Delain and\\n“Kim,” when he saw a red Acura and green Mazda MX6 arrive at the\\nbuilding, “the green car in front and the red car [] behind it.” Habeas\\nExh. K at 9. As Whitmore told the women to run inside, Hyman and\\nanother person began firing at Whitmore through the open front\\npassenger window of the green car. Whitmore did not see what guns\\nthe men were using and, therefore, “[c]ouldn’t say this was a 9mm or\\nthat was a .45.” Id. at 23. What he did see was Hyman’s face and arm\\nextending out of the window, then lights and sparks. Whitmore\\nretrieved his own gun and “just blast[ed] back,” emptying a seven‐\\nshot clip. Id. at 10. Running inside the building as he fired, Whitmore\\nwent to his mother’s apartment and threw the gun out a window.\\n\\n The district court found Whitmore’s accounts “generalized,\\nunsubstantiated[,] . . . [and] patently incredible.” Hyman v. Brown, 197\\nF. Supp. 3d at 456. It observed that Whitmore “fail[ed] to offer any\\nplausible basis” for interpreting the note as “a threat to him,” much\\nless one requiring him to arm himself for a gunfight. Id. at 458.\\nFurther, his “self‐serving” statements were in “stark conflict” with\\nother evidence as well as the prosecution’s trial theory. Id. For\\nexample, Whitmore placed himself in the company of two women\\nwhen the shooting began, making no mention of Derek Harris, whom\\nthe prosecution had portrayed as his confederate in the shootout.16\\nAlso, Whitmore’s placement of the green Mazda ahead of the red\\n\\n16As recounted supra at 22, the district court found Shaquana Delain credible in testifying\\nthat she was inside an apartment at 1540 Hassock Street when the March 10 shootout\\noccurred.\\n\\n\\n\\n 24\\n\\nAcura conflicted with trial testimony from Ellis, Burton, and McCoy,\\nwhich placed the cars in reverse order. And his professed sighting of\\ntwo persons in the Mazda was at odds with Ellis’s trial testimony,\\nwhich placed Hyman alone in the vehicle. Finally, the district court\\nthought it more than mere coincidence that Whitmore, in disavowing\\nknowledge of the type of guns fired from the cars, mentioned the\\ncaliber of two guns actually used and later found in his car. Thus, the\\ndistrict court concluded that “the prosecution’s resort to Whitmore’s\\nstatement at the gateway hearing as a sort of smoking gun” rebutting\\nHyman’s actual innocence claim “is difficult to explain; if introduced\\nto rational jurors, their reaction would have to be an even further loss\\nof confidence in the overall investigation.” Id.17\\n\\n 2. Joseph Howard\\n\\n On March 11, 2000, Joseph Howard told police that he was\\nwalking out of 1540 Hassock Street shortly after 7:00 p.m. the previous\\nnight when he saw a red, four‐door Acura with tinted windows stop\\noutside the building approximately 20 feet from him. Howard saw\\nthree African‐American men in the vehicle, one of whom exited the\\npassenger side and began shooting what appeared to be a .45 caliber\\nor 9mm handgun.\\n\\n\\n\\n17The conclusion is not ineluctable. The car‐order discrepancy seems of little import to\\nWhitmore’s credibility as there is no question that he viewed the shootout and Hyman\\nhimself admits that he was at the scene in his green Mazda. Further, because Ellis now\\nadmits that she did not see the shootout, her testimony cannot impeach Whitmore or\\nanyone else. Nevertheless, Hyman himself stated that he was alone in the green Mazda at\\nthe shootout, not with another person as Whitmore recalled. But Hyman’s admission\\ncorroborates Whitmore, at least to the extent he placed Hyman in the green Mazda at the\\nshootout. And if Burton’s and McCoy’s testimony as to the cars’ order casts doubt on\\nWhitmore’s recollection as to that fact, these witnesses support Whitmore’s identification\\nof Hyman as a shooter: Burton, because she saw gun flashes coming from the green car,\\nand McCoy because she saw gunshots fired by a person who briefly exited the green car.\\nSee supra at 10–11.\\n\\n\\n 25\\n\\n In a second interview four days later, Howard stated that he\\nwas actually at a nearby bus stop, approximately 50 feet from the red\\nAcura, when he saw two men exit the car. Howard heard twenty to\\nthirty gunshots exchanged. He then saw the two gunmen return to\\nthe Acura, which sped away.\\n\\n From a photo array—no longer available for review at the\\nhabeas hearing—Howard identified Hyman as one of the March 10\\nshooters. In neither interview did Howard mention seeing a green\\ncar. Rather, he reported seeing a black jeep with tinted windows\\nfollowing directly behind the Acura, as if the two cars were together.\\nBut he did not state that he saw any gunshots fired from or by persons\\nin that car.\\n\\n The district court concluded that “no rational factfinder would\\nassign significant weight to” Howard’s statements because, despite\\nhis photo‐array identification of Hyman as one of the shooters, “his\\nstory conflicts too materially with Ellis’s for a jury to accept a\\nprosecutor’s decision to offer both his and her accounts.” Id. at 459.18\\nThe court further observed that “the dark car Howard says he saw\\nbehind the red Acura was a Jeep, which cannot plausibly be confused\\nwith a green Mazda MX6, a sports car.” Id.19 In any event, the district\\ncourt noted that respondent could not offer “a definite reason” for not\\ncalling Howard as a trial witness, reporting only that he was “‘very,\\nvery difficult to find at the time of the investigation and not very\\ncooperative.’” Id. at 458 (quoting Habeas Hearing Tr. at 5–6).\\n\\n\\n\\n18 Whatever concerns Howard’s account might raise, inconsistency with Ellis’s trial\\ntestimony would not appear to be one of them once the district court credited her\\ntestimony that she had not, in fact, seen the March 10 shootout.\\n\\n19 Hyman himself reported seeing a Jeep on Hassock Street at the time of shootout, and his\\nstatements leave no doubt as to the presence of his green Mazda.\\n\\n\\n 26\\n\\n C. The District Court’s Ruling\\n\\n 1. Actual Innocence\\n\\n In a 91‐page opinion reviewing the above evidence in detail, the\\ndistrict court ruled that Hyman had made the gateway showing of\\nactual innocence necessary to lift the procedural bar to habeas review\\nof his Sixth Amendment claim. Insofar as the gateway standard\\nrequired Hyman to adduce credible new evidence of innocence, the\\ndistrict court ruled that he carried that burden simply through the\\nManning, Blye, and Sanders affidavits offered in support of his\\nsecond § 440 motion. See id. at 461. Each of those affidavits cast doubt\\non Shaquana Ellis’s trial testimony professing to have witnessed the\\nMarch 10 shootout. In any event, Hyman carried his burden through\\nfurther new evidence: the hearing testimony of Ellis, Benitez, and\\nDelain, the first two of whom were credible, if not in whole, at least\\non the “narrow” proposition that Ellis was not present during the\\nshooting and, thus, could not identify Hyman as a participant. Id. at\\n462.\\n\\n The district court ruled that this new evidence made a\\ncompelling showing of innocence because “unless Ellis’s [trial]\\ntestimony was believable, there was essentially no case against\\nHyman.” Id. The district court further concluded that Ellis’s recant\\n“would likely breathe new life into the defense theory that she and\\nother witnesses may have slanted their accounts to promote the\\ntheme that Whitmore was the victim.” Id. at 463. Thus, the district\\ncourt concluded that the new evidence made it “‘more likely than\\nnot’” that “‘any reasonable juror would have a reasonable doubt’\\nabout Hyman’s guilt.” Id. at 462 (quoting House v. Bell, 547 U.S. at\\n538).\\n\\n\\n\\n 27\\n\\n 2. Sixth Amendment Claim\\n\\n As to Hyman’s Sixth Amendment claim, the district court\\nconcluded that the state court unreasonably applied both prongs of\\nStrickland v. Washington, 466 U.S. 668 (1984), in denying Hyman relief\\nfrom judgment. At the objectively‐reasonable‐conduct prong of\\ninquiry, the district court ruled that Strickland did not permit the state\\ncourt to conclude that trial counsel’s decision not to call Hinkson\\ncould have been reasonable strategy because “there is no articulable,\\nreasonable, strategic reason” for counsel not to have introduced\\nHinkson’s sightline findings. Hyman v. Brown, 197 F. Supp. 3d at 464.\\nThe district court thought that conclusion only reinforced by the fact\\nthat counsel was then operating under an “actual conflict of interest,”\\ni.e., a fee dispute with the investigator. Id. at 466 (internal quotation\\nmarks omitted). At the prejudice prong of inquiry, the district court\\nfaulted the state court for “fail[ing] to appreciate the pivotal role\\nEllis’s testimony played in the state’s case,” which meant that, “had\\ncounsel successfully impeached Ellis” with Hinkson’s findings,\\n“there is a more than reasonable probability that the result of the\\nproceeding would have been different.” Id.\\n\\n DISCUSSION\\n\\nI. The Actual Innocence Gateway\\n\\n As the district court recognized, Hyman’s actual innocence\\nclaim plays a “procedural, not substantive” role in this case. Rivas v.\\nFischer, 687 F.3d at 541. Even if successful, the claim cannot itself\\nafford Hyman habeas relief from his state conviction. It can only open\\na gateway to federal review of an otherwise procedurally barred Sixth\\nAmendment claim that, if itself successful, could afford him relief. See\\nSchlup v. Delo, 513 U.S. at 314.\\n\\n\\n 28\\n\\n This is not to minimize the importance of an actual innocence\\nclaim. “[C]oncern about the injustice that results from the conviction\\nof an innocent person has long been at the core of our criminal justice\\nsystem,” both state and federal. Id. at 325. But within that system,\\n“trial is the paramount event for determining the guilt or innocence”\\nof an accused. Herrera v. Collins, 506 U.S. 390, 416 (1993). An accused\\nenters trial with “a presumption of innocence” and a right to “insist\\nthat his guilt be established beyond a reasonable doubt.” Id. at 398.\\nOnce guilt is so established, however, a federal habeas court will not\\nrelitigate the question of guilt for a state defendant who protests his\\nactual innocence. See Rivas v. Fischer, 687 F.3d at 540 & n.34 (observing\\nthat Supreme Court “has never explicitly recognized the existence of\\na freestanding actual innocence claim”). Rather, a federal habeas\\ncourt will review state convictions for constitutional error. See 28\\nU.S.C. § 2254.20\\n\\n The law, nevertheless, affords an actual innocence gateway\\nclaim because “the existence of a concededly meritorious\\nconstitutional violation is not in itself sufficient . . . [to] allow a habeas\\ncourt to reach the merits of a barred claim.” Schlup v. Delo, 513 U.S. at\\n316. Usually, that bar will be lifted only if a petitioner demonstrates\\ngood cause to excuse his default and ensuing prejudice. See House v.\\nBell, 547 U.S. at 536 (collecting cases). Even in the absence of that\\nshowing, however, the law recognizes that, in a “narrow class of\\n\\n20Actual innocence is “‘not itself a constitutional claim’”—except perhaps when raised in\\nthe context of an Eighth Amendment challenge to a capital sentence. Schlup v. Delo, 513\\nU.S. at 315 (quoting Herrera v. Collins, 506 U.S. at 404); cf. Moore v. Dempsey, 261 U.S. 86, 87–\\n88 (1923) (observing that issue on habeas review “is not the petitioners’ innocence or guilt\\nbut solely the question whether their constitutional rights have been preserved”). In\\nHerrera, the Supreme Court presumed, without deciding, that the Eighth Amendment\\nprohibition of cruel and unusual punishment would preclude the execution of a defendant\\nwho made a “truly persuasive” demonstration of actual innocence. 506 U.S. at 417\\n(concluding that defendant failed, in any event, to make that showing).\\n\\n\\n\\n 29\\n\\ncases,” there remains the risk of “a fundamental miscarriage of\\njustice” if the defaulted constitutional claim is not heard. Schlup v.\\nDelo, 513 U.S. at 315 (internal quotation marks omitted). That narrow\\nclass of “truly extraordinary” cases consists of those presenting\\ncredible and compelling claims of actual innocence. Id. at 338; see\\nHerrera v. Collins, 506 U.S. at 404 (“[F]undamental miscarriage of\\njustice exception[] is grounded in the ‘equitable discretion’ of habeas\\ncourts to see that federal constitutional errors do not result in the\\nincarceration of innocent persons.”); Murray v. Carrier, 477 U.S. 478,\\n496 (1986) (limiting “miscarriage of justice” exception to\\n“extraordinary case[s], where a constitutional violation has probably\\nresulted in the conviction of one who is actually innocent”). Thus, a\\nstate prisoner who “seek[s] access to a federal habeas court in the face\\nof a procedural obstacle,” and who cannot overcome that obstacle by\\nshowing cause and prejudice, “must advance both a legitimate\\nconstitutional claim and a credible and compelling claim of actual\\ninnocence.” Rivas v. Fischer, 687 F.3d at 540 (emphases in original).\\n\\n The petitioner’s burden in making a gateway showing of actual\\ninnocence is deliberately “demanding.” House v. Bell, 547 U.S. at 538;\\nsee Schlup v. Delo, 513 U.S. at 324 (observing that actual innocence\\nclaims are rarely successful); accord McQuiggin v. Perkins, 569 U.S. 383,\\n386, 401 (2013) (“stress[ing] that the Schlup standard is demanding”\\nand cases satisfying it “rare”). It requires, first, that petitioner adduce\\n“new reliable evidence—whether it be exculpatory scientific\\nevidence, trustworthy eyewitness accounts, or critical physical\\nevidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. at\\n324. In addition to being reliable, i.e., credible, the evidence must be\\ncompelling. This second requirement demands “evidence of\\ninnocence so strong that a court cannot have confidence in the\\noutcome of the trial unless the court is also satisfied that the trial was\\n\\n\\n 30\\n\\nfree of nonharmless constitutional error.” Id. at 316; accord Rivas v.\\nFischer, 687 F.3d at 541.21\\n\\n The standard’s demand for “evidence of innocence,” Schlup v.\\nDelo, 513 U.S. at 316 (emphasis added), references “factual innocence,\\nnot mere legal insufficiency,” Bousley v. United States, 523 U.S. 614, 624\\n(1998); accord Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002); see also\\nDoe v. Menefee, 391 F.3d 147, 162 (2d Cir. 2004) (Sotomayor, J.) (“As\\nSchlup makes clear, the issue before [the] court is not legal innocence\\nbut factual innocence.”). The new evidence need not demonstrate\\nfactual innocence to an “absolute certainty.” House v. Bell, 547 F.3d at\\n538; accord Rivas v. Fischer, 687 F.3d at 542. But it must be sufficiently\\ncredible and compelling to allow a federal court to conclude that\\n“more likely than not, in light of the new evidence, no reasonable\\njuror would find [petitioner] guilty beyond a reasonable doubt—or,\\nto remove the double negative, that more likely than not any\\nreasonable juror would have reasonable doubt.” House v. Bell, 547\\nU.S. at 538; see Schlup v. Delo, 513 U.S. at 327; Rivas v. Fischer, 687 F.3d\\nat 541.\\n\\n As this court has recognized, this standard is “somewhat\\ncryptic” in marrying a seemingly absolute requirement (no\\nreasonable juror) to a probabilistic one (more likely than not). Rivas\\nv. Fischer, 687 F.3d at 541 (citing Schlup v. Delo, 513 U.S. at 339\\n(Rehnquist, C.J., dissenting) (characterizing standard as “classic\\nmixing of apples and oranges”)). Nevertheless, this court has located\\n\\n\\n21While this gateway standard is demanding, it is less than what would be required to\\nsupport a free‐standing claim of actual innocence. See Schlup v. Delo, 513 U.S. at 316\\n(observing, by reference to Herrera v. Collins, 506 U.S. 391, that, assuming actual innocence\\nclaim could support Eighth Amendment challenge to capital sentence, “evidence of\\ninnocence would have had to be strong enough to make [defendant’s] execution\\nconstitutionally intolerable even if his conviction was the product of a fair trial” (emphasis\\nin original) (internal quotation marks omitted)).\\n\\n\\n 31\\n\\nsome guidance for its application in contrasts that the Supreme Court\\nhas drawn between the Schlup standard and other familiar ones. See\\nid.\\n\\n Notably, Schlup emphasizes that “actual innocence . . . does not\\nmerely require a showing that a reasonable doubt exists in the light\\nof the new evidence, but rather that no reasonable juror would have\\nfound the defendant guilty.” 513 U.S. at 329. Further, a “more likely\\nthan not” showing as to what “no reasonable juror would have\\nfound” requires “a stronger showing than that needed to establish\\nprejudice,” but not so strong as that demanded by the “‘clear and\\nconvincing’ standard.” Id. at 327; see Rivas v. Fischer, 687 F.3d at 541.22\\n\\n Further, the Court has stressed that Schlup’s actual innocence\\nstandard does not equate to the sufficiency‐of‐the‐evidence standard\\nin Jackson v. Virginia, 443 U.S. 307, 319 (1979). Jackson asks whether the\\ntrial evidence, viewed in the light most favorable to the prosecution,\\n“could” allow any reasonable trier of fact to find a charged crime\\nproved beyond a reasonable doubt. Id. By contrast, Schlup’s actual\\ninnocence standard considers a different “mix of evidence” from a\\ndifferent “vantage point.” Rivas v. Fischer, 687 F.3d at 542.\\nSpecifically, a reviewing court assessing the probability of actual\\ninnocence is not limited to the trial record. To the contrary, it “must\\nconsider all the evidence, old and new, incriminating and\\nexculpatory,” House v. Bell, 547 U.S. at 538 (internal quotation marks\\nomitted), and, in doing so, “is not bound by the rules of admissibility\\n\\n\\n22Compare Strickland v. Washington, 466 U.S. at 694 (holding that, to demonstrate prejudice,\\ndefendant must show “reasonable probability that, but for counsel’s unprofessional errors,\\nthe result of the proceeding would have been different”), with Sawyer v. Whitley, 505 U.S.\\n333, 336 (1992) (holding that petitioner must show “by clear and convincing evidence that,\\nbut for a constitutional error, no reasonable juror would have found the petitioner” guilty\\n(internal quotation marks omitted)).\\n\\n\\n\\n 32\\n\\nthat would govern at trial,” Schlup v. Delo, 513 U.S. at 327. This is\\nbecause, at the gateway stage of inquiry, a habeas court’s task is not\\nto identify trial error or to delineate the legal parameters of a possible\\nnew trial. It is to identify those cases in which a compelling showing\\nof actual innocence would make it a manifest injustice to maintain\\nconviction unless it was free of constitutional error. Thus,\\nincriminating evidence obtained in the course of an unlawful search,\\nor custodial admissions made in the absence of Miranda warnings,\\nmay well be inadmissible at trial. Nevertheless, such evidence is\\nproperly considered in assessing factual innocence, with the manner\\nof procurement informing reliability and relevance and, therefore,\\nweight.\\n\\n The district court concluded otherwise: “all the evidence” does\\nnot mean evidence “unquestionably . . . available” to the prosecution\\nat the time of trial but “clearly inadmissible” or simply not offered.\\nHyman v. Brown, 197 F. Supp. 3d at 454. In support, it cited Schlup’s\\nquotation of the factual innocence standard proposed in a law review\\narticle by Judge Friendly for all federal habeas review:\\n\\n The habeas court must make its determination\\n concerning the petitioner’s innocence in light of all the\\n evidence, including that alleged to have been illegally\\n admitted (but with due regard to any unreliability of it)\\n and evidence tenably claimed to have been wrongly excluded\\n or to have become available only after the trial.\\n\\nSchlup v. Delo, 513 U.S. at 328 (quoting Henry J. Friendly, Is Innocence\\nIrrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV.\\n142, 160 (1970)) (emphasis added). The district court construed the\\nhighlighted phrase to limit a habeas court’s consideration of evidence\\nknown, but not offered, at trial, to evidence that might have been\\nwrongfully excluded. See Hyman v. Brown, 197 F. Supp. 3d at 455\\n\\n\\n 33\\n\\n(explaining why Whitmore’s confession inculpating Hyman, and\\nHoward’s out‐of‐court identification of Hyman, should not be\\nconsidered in assessing Hyman’s actual innocence claim—although\\nconcluding that, even on consideration, the claim succeeded). We\\ncannot agree.23\\n\\n The plain language of the sentence indicates that Judge\\nFriendly, and in turn the Supreme Court, were emphasizing the\\nabsence of evidentiary limits on actual innocence review by\\nexplaining that “all evidence, includ[es]” even evidence illegally\\nadmitted at or wrongfully excluded from trial. See, e.g., P.C. Pfeiffer\\nCo. v. Ford, 444 U.S. 69, 77 n.7 (1979) (construing “including” to mean\\npart of larger group (citing Webster’s New Collegiate Dictionary 581\\n(1973))). Indeed, it would make no sense to suggest that an actual\\ninnocence assessment could be informed by illegally admitted\\nevidence but not by properly excluded evidence. They are opposite\\nsides of the same coin and equally probative of actual innocence (or\\nguilt). Much less does it make sense to determine actual innocence\\nfrom illegally admitted evidence but not from admissible evidence\\nthat the prosecution chose not to offer, whether because it seemed\\nduplicative of, or simply less persuasive than, evidence now called\\ninto question by petitioner’s new evidence.\\n\\n Nor do we draw—as the district court did—an inference that\\nSchlup was limiting its own pronouncement freeing actual innocence\\ninquiries from rules of admissibility by following it with the quoted\\nlanguage from Judge Friendly. See Hyman v. Brown, 197 F. Supp. 3d\\nat 455. In Kuhlmann v. Wilson, a plurality of the Court, after quoting\\n\\n23As indicated infra at 55, we accord the Whitmore/Howard evidence little weight, except\\nto note that it does not support Hyman’s actual innocence claim. We here clarify only that\\na court is not barred from considering such evidence because it was properly excluded\\nfrom, or available but not offered at, petitioner’s original trial.\\n\\n\\n 34\\n\\nthe same language from Judge Friendly, followed it with the\\nunqualified conclusion that, “[t]hus, the question whether the\\nprisoner can make the requisite showing must be determined by\\nreference to all probative evidence of guilt or innocence.” 477 U.S. 436,\\n455 n.17 (1986) (emphasis added).\\n\\n Accordingly, we construe the Supreme Court’s actual\\ninnocence precedents to mean what they say, i.e., that reviewing\\ncourts should assess actual innocence claims in light of “all the\\nevidence” regardless of admissibility but with proper consideration\\nfor the weight the evidence can bear in light of relevance and\\nreliability. See House v. Bell, 547 U.S. at 538; Schlup v. Delo, 513 U.S. at\\n328; Kuhlmann v. Wilson, 477 U.S. at 455 n.17.\\n\\n Nevertheless, a challenge arises in making an actual innocence\\nassessment from “all the evidence” because Schlup requires adherence\\nto the principle, “firmly established in our legal system,” “that the line\\nbetween innocence and guilt is drawn with reference to a reasonable\\ndoubt.” Schlup v. Delo, 513 U.S. at 328. Moreover, it is not the court’s\\n“independent judgment as to whether reasonable doubt exists” that\\nis determinative. Id. at 329. Rather, the court’s task is to “make a\\nprobabilistic determination about what reasonable properly\\ninstructed jurors would do.” House v. Bell, 547 U.S. at 538 (internal\\nquotation marks omitted); accord Rivas v. Fischer, 687 F.3d at 542\\n(observing that Jackson’s use of the word “could” focuses inquiry “‘on\\nthe power of the trier of fact to reach its conclusion,’” whereas Schlup’s\\n“use of the word ‘would’ . . . ‘focuses the inquiry on the likely behavior\\nof the trier of fact’” (quoting Schlup v. Delo, 513 U.S. at 330 (emphasis\\nadded in Rivas))). Presumably, properly instructed jurors would be\\ntold not to consider inadmissible evidence. Nevertheless, given the\\nemphasis the Supreme Court has placed on assessing actual\\n\\n\\n\\n 35\\n\\ninnocence claims in light of “all the evidence . . . without regard to . .\\n. admissibility,” House v. Bell, 547 U.S. at 538, we do not interpret its\\nreference to “properly instructed jurors” as a limitation on the\\nevidence to be considered by the court. Rather, we understand the\\nphrase to signal that the habeas court should assume the jury has been\\nproperly instructed as to the elements of the charged crime and the\\nprosecution’s burden of proof when, upon reviewing the totality of\\nthe evidence, the court decides whether it is “more likely than not, in\\nlight of the new evidence, [that] no reasonable juror would find [the\\ndefendant] guilty beyond a reasonable doubt.” Id.; see Schlup v. Delo,\\n513 U.S. at 331 (referencing juror “conscientiously following the\\njudge’s instructions requiring proof beyond a reasonable doubt” in\\nreaching conclusion that no reasonable juror, so instructed, would be\\nlikely to vote for guilt if new evidence there adduced were found\\nreliable on remand).\\n\\n Applying these principles here, we conclude that Hyman has\\nnot made a gateway showing of actual innocence.\\n\\nII. Applying the Gateway Standard\\n\\n A. Respondent’s Unpersuasive Challenges\\n\\n In applying the gateway standard here, we begin by explaining\\nwhy two of respondent’s challenges to the district court judgment do\\nnot persuade.\\n\\n 1. There Are No Categorical Limits on the Types of\\n Evidence that Can Support a Claim of Actual\\n Innocence\\n\\n The district court found credible and compelling new evidence\\nthat effectively impeached Shaquana Ellis’s trial identification of\\n\\n\\n\\n 36\\n\\nHyman as a participant in the March 10 shootout. At the habeas\\nhearing, Ellis herself recanted her trial testimony, admitting under\\noath that she did not see the shootout. That admission was\\ncorroborated by the sworn testimony or affidavits of six persons.\\n\\n Respondent argues that, even if credible, impeachment\\nevidence cannot be compelling because it does not fall within any of\\nthe three categories of “new reliable evidence” identified in Schlup.\\n513 U.S. at 324 (stating that petitioner must present “new reliable\\nevidence—whether it be [1] exculpatory scientific evidence, [2]\\ntrustworthy eyewitness accounts, or [3] critical physical evidence”).\\nRespondent’s argument is defeated by House v. Bell, which instructs\\nthat Schlup’s list is illustrative, not exhaustive. See 547 U.S. at 537\\n(quoting Schlup list, but observing that “habeas court’s analysis is not\\nlimited to such evidence”); accord Munchinski v. Wilson, 694 F.3d 308,\\n338 (3d Cir. 2012) (observing that Schlup’s list is not exhaustive of\\nevidence that can be reliable); Wolfe v. Johnson, 565 F.3d 140, 164 n.32\\n(4th Cir. 2009) (same); Souter v. Jones, 395 F.3d 577, 593 n.8 (6th Cir.\\n2005) (same).\\n\\n Thus, we conclude that while certain evidence may bear more\\nweight than other evidence in demonstrating factual innocence, there\\nare no categorical limits on the types of evidence that can be offered\\nto do so.\\n\\n 2. The District Court Did Not Clearly Err in Finding\\n Ellis’s Recantation Credible\\n\\n Alternatively, respondent faults the district court for finding\\nEllis’s recantation credible. We review a district court’s credibility\\nassessment of witnesses who testify before it only for clear error. See\\nDoe v. Menefee, 391 F.3d at 163–64. Nevertheless, when, as here, a\\nwitness is recanting prior sworn testimony supporting a conviction,\\n\\n 37\\n\\nwe expect district courts to look upon the recantation “with the\\nutmost suspicion.” Haouari v. United States, 510 F.3d 350, 353 (2d Cir.\\n2007). The district court should consider not only the recantation, but\\nthe motives that may have prompted it, the timing of the submission,\\nany possible motive for the original testimony, any inconsistencies in\\nthe witness’s account or between that account and other evidence, the\\nplausibility or implausibility of inferences or assumptions that\\ncrediting the recantation would require, as well as all other factors\\ngenerally considered in assessing witness credibility. See generally Doe\\nv. Menefee, 391 F.3d at 164–65.\\n\\n Here, respondent argues that the credibility of Ellis’s\\nrecantation is suspect because her hearing testimony was compelled\\nby federal subpoena, following her earlier refusal to provide a sworn\\nstatement. These circumstances warrant consideration in assessing\\nEllis’s credibility, but they do not preclude a finding that her\\nrecantation is credible. So too the fact that Ellis’s hearing testimony\\nwas given under a grant of immunity from prosecution for perjury in\\nher trial testimony. The grant did not absolve Ellis of the duty to\\ntestify truthfully at the habeas hearing. Thus, this circumstance was\\nalso properly considered in determining credibility, but it did not\\ncompel a finding that Ellis’s recantation was not credible.\\n\\n As the record shows, the district court well understood these\\ncircumstances and others pertinent to Ellis’s credibility. It did not\\nhesitate to identify implausibilities and inconsistencies in Ellis’s\\ntestimony. At the same time, the district court observed that Ellis’s\\nrecantation was not recent; she had maintained it for more than a\\ndecade in speaking with various persons. The district court also\\nnoted respondent’s failure to point to any motive Ellis might have for\\nfalsely recanting her trial testimony. In weighing the totality of these\\n\\n\\n\\n 38\\n\\ncircumstances, the district court had a unique advantage unavailable\\nto this court: it heard directly from Ellis and observed her demeanor\\nas her recantation was offered on direct examination and tested on\\ncross‐examination. See id. at 164 (recognizing that “district courts are\\ngenerally best placed to evaluate testimony in light of the witnesses’\\ndemeanor”); Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003)\\n(recognizing “factfinder’s unique ability to assess the witness” in\\nmaking credibility determination).\\n\\n Further, the district court heard testimony or reviewed\\naffidavits from various persons who reported either that they did not\\nwitness the shootout with Ellis, as she testified at trial, or had heard\\nher subsequently admit to not seeing the shootout. The district court\\nconducted a thorough hearing to develop this evidence, proceeded\\ncarefully to assess the extent to which it corroborated or undermined\\nEllis’s own account, and ultimately concluded that Ellis’s recantation\\nand the corroboration supporting it were credible—but only in part.\\n\\n Specifically, the district court credited Ellis’s recantation on the\\nnarrow point that she did not see the March 10 shootout and,\\ntherefore, could not identify Hyman as a shooting participant.\\nOtherwise, the district court found Ellis to be a “facile liar” in\\nexplaining both her motives for testifying falsely at trial and her\\nactual whereabouts at the time of the shootout. Hyman v. Brown, 197\\nF. Supp. 3d at 461. Similarly, as to corroborating witness Benitez, the\\ndistrict court credited only her testimony that she and Ellis were not\\nin the third‐floor hallway of 1540 Hassock Street at the time of the\\nMarch 10 shootout and, thus, not in a position to see what occurred.\\nIt found implausible Benitez’s explanation for telling the police\\notherwise and problematic her inconsistent accounts of the night’s\\nevents.\\n\\n\\n\\n 39\\n\\n We are satisfied that the district court viewed Ellis’s recantation\\nwith the appropriate high level of skepticism. But just as the law\\npermits a factfinder who identifies falsity in part of a witness’s\\ntestimony to discredit the whole, see, e.g., Siewe v. Gonzales, 480 F.3d\\n160, 170 (2d Cir. 2007) (referencing maxim falsus in uno, falsus in\\nomnibus), it also affords a factfinder discretion to credit parts of a\\nwitness’s testimony despite discrediting others, see, e.g., United States\\nv. Norman, 776 F.3d 67, 78 (2d Cir. 2015) (stating that factfinder is “free\\nto believe all, some, or none of a witness’s testimony” (internal\\nquotation marks omitted)). On this record of careful evidentiary\\nreview and discernment by the district court, we identify no clear\\nerror in its decision to credit that part of Hyman’s new evidence\\nindicating that Ellis did not see the March 10 shootout and, thus,\\ncould not identify him as a shooting participant. We defer to that\\nfinding in now assessing whether such credible new evidence made\\na compelling showing of actual innocence.\\n\\n B. Hyman Fails To Show Actual Innocence\\n\\n The fact that new evidence is credible does not necessarily\\nmake it compelling under the Schlup standard for actual innocence.\\nPrecisely because the gateway standard for actual innocence is\\ndemanding and rarely met, in applying it to Hyman’s claim, we begin\\nby considering circumstances in which courts have found it satisfied.\\nSee Rivas v. Fischer, 687 F.3d at 543 (being “guided by Supreme Court’s\\napplication of [Schlup] standard in House [v. Bell]” in assessing Rivas’s\\nclaim of actual innocence).\\n\\n\\n\\n\\n 40\\n\\n 1. Precedents Identifying Compelling Showings of\\n Actual Innocence\\n\\n a. Schlup v. Delo\\n\\n In Schlup, petitioner was convicted of murder based largely on\\nthe testimony of two corrections officers who identified him as one of\\nthree white prisoners who attacked a black inmate and stabbed him\\nto death. Schlup sought federal habeas relief, maintaining his\\ninnocence and arguing that trial counsel had been constitutionally\\nineffective in failing to interview and call exculpatory witnesses. See\\nSchlup v. Delo, 513 U.S. at 306–07. In remanding the case for\\napplication of a more‐likely‐than‐not, rather than clear‐and‐\\nconvincing, standard of actual innocence, see id. at 327, the Supreme\\nCourt highlighted the following new evidence: (1) sworn affidavits\\nfrom inmate eyewitnesses to the murder stating that Schlup was not\\npresent for the crime and implicating other inmates by name;24 (2) the\\nsworn affidavit of a former prison lieutenant reporting a disciplinary\\ninteraction with Schlup at and about the time of the killing, which cast\\ndoubt on Schlup’s ability thereafter to have participated in the\\nmurder and still arrived at the prison dining room 65 seconds before\\nthe distress call prompted by the stabbing, as confirmed by a prison\\nvideotape; and (3) the affidavit of an inmate‐clerk stating that there\\nwas no delay between the stabbing and his placing the distress call,\\nand identifying the three men who assaulted the victim as persons\\nother than Schlup, see id. at 331.\\n\\n The Court acknowledged that this new evidence might be\\ndeemed “unreliable” at an actual innocence hearing on remand. Id.\\n\\n24While the district court had considered these affidavits suspect, see Schlup v. Delo, 513\\nU.S. at 309 n.19, the Supreme Court deemed it noteworthy that it was “black inmates\\nattesting to the innocence of a white defendant in a racially motivated killing,” id. at 316.\\n\\n\\n\\n 41\\n\\nNevertheless, it observed that if the evidence were found credible, it\\nwas sufficiently compelling to warrant relief. See id.\\n\\n b. House v. Bell\\n\\n The House petitioner was convicted of murdering a woman in\\nthe course of what prosecutors contended was a sexual assault.\\nCentral to the state’s largely circumstantial case were forensic\\nfindings that House’s semen was present on the dead woman’s\\nclothing and her blood was present on House’s clothing. In claiming\\nactual innocence, House produced new test results undermining both\\nconclusions. Based on this evidence, prosecutors themselves\\nadmitted that the semen at issue was from the victim’s husband, not\\nHouse. See House v. Bell, 547 U.S. at 540. As for minute quantities of\\nthe victim’s blood on House’s clothes, new evidence prompted even\\nthe state’s Assistant Chief Medical Examiner to acknowledge that the\\nblood likely got on House’s pants, not during the murder, but while\\nthe pants were in police custody and came into contact with\\nmishandled autopsy samples of the victim’s blood. See id. at 547.\\nNevertheless, the Supreme Court observed that the new forensic\\nevidence would not, by itself, have allowed petitioner to pass through\\nthe actual innocence gateway. See id. at 548. What tipped the balance\\nwas further new evidence pointing to the victim’s husband as her\\nmurderer.\\n\\n Most important, in the Court’s view, was testimony from two\\nsisters who stated that, at a gathering at their home after the murder\\nat which the victim’s husband was drinking heavily, they heard him\\n“rambling” about his wife’s death, “crying,” and saying he had\\n\\n\\n\\n\\n 42\\n\\n“slapped” her, causing her to “hit her head and it killed her,” but “he\\ndidn’t mean to do it.” Id. at 549–50.25\\n\\n At the habeas hearing, the husband denied killing his wife or\\nconfessing to doing so, and the district court “did not question his\\ncredibility.” Id. at 552. Nevertheless, the Supreme Court noted that\\nthe husband’s hearing account of his whereabouts on the night of the\\ncrime and his denial to ever striking his wife were both impeached by\\nother evidence, in the latter case by the state itself. See id.\\n\\n The Court thus characterized House’s actual innocence claim\\nas a “close” one. Id. at 554; see also id. at 553–54 (cataloguing evidence\\nthat might “still support an inference of guilt”). Nevertheless,\\nbecause “the central forensic proof connecting House to the crime—\\nthe blood and the semen—has been called into question, and House\\nhas put forward substantial evidence pointing to a different suspect,”\\ni.e., the victim’s husband, the Court concluded that House had carried\\nhis Schlup burden because “had the jury heard all the conflicting\\ntestimony—it is more likely than not that no reasonable juror viewing\\nthe record as a whole would lack reasonable doubt.” Id. at 554.\\n\\n c. Rivas v. Fischer\\n\\n Finally, in Rivas v. Fischer, a case in which this court ruled that\\na Schlup showing of actual innocence could excuse an untimely\\nhabeas petition, see 687 F.3d at 550, we found petitioner to have\\ncarried that burden through new, “largely unchallenged—expert\\n\\n25The Supreme Court distinguished the sisters’ testimony from an “eleventh‐hour affidavit\\nvouching for a defendant and incriminating a conveniently absent suspect.” House v. Bell,\\n547 U.S. at 552. “The confession evidence here involves an alleged spontaneous statement\\nrecounted by two eyewitnesses with no evident motive to lie. For this reason it has more\\nprobative value than, for example, incriminating testimony from inmates, suspects, or\\nfriends or relations of the accused.” Id.\\n\\n\\n\\n 43\\n\\ntestimony, which cast considerable doubt on the ‘central forensic\\nproof’ connecting him” to the murder of his former girlfriend, id. at\\n547. That proof was the medical examiner’s opinion as to the time of\\ndeath. In 1987, he estimated that the victim had died sometime\\nbetween Saturday afternoon March 28, 1987, and early Sunday\\nmorning, March 29, 1987. Because Rivas had a “complete” and\\n“unchallenged” alibi for that time span, id. at 524, 543, the state “had\\nno case” against him unless it could prove that the victim died earlier\\nin the weekend, id. at 525. More than five years after the killing, the\\nstate decided it could make that showing. Although no further\\nevidence had developed, a new district attorney asked the medical\\nexaminer to review his case file again, whereupon the examiner\\nrevised his opinion to conclude that the victim’s death “more likely”\\noccurred sometime “Friday night,” March 27, 1987, or “very early\\nSaturday morning.” Id. at 524.\\n\\n To support his actual innocence claim, Rivas offered new\\ncontrary evidence from a distinguished forensic pathologist, who\\ntestified with a “reasonable degree of medical certainty” that the\\ncondition of the victim’s body when examined by the medical\\nexaminer at 3:30 p.m. on Monday, March 30, 1987—in “full rigor” and\\nwithout “discoloration around the abdominal wall”—meant that her\\n“death could not have occurred longer than 48 hours prior to the\\ntime” of examination, i.e., could not have happened earlier than 3:30\\np.m. on Saturday, March 28. Id. at 531 (internal quotation marks\\nomitted). The state mounted no “serious challenge” to the expert’s\\n“credibility or expertise.” Id. at 544. Moreover, it conceded that when\\nthe medical examiner revised his time‐of‐death estimate, he was\\nunder investigation for professional misconduct and, in November\\n1993, resigned his office, in part, to avoid criminal prosecution. See id.\\nat 521. On this record, this court concluded that “any reasonable juror\\n\\n\\n 44\\n\\nwould almost certainly credit” “the essentially unchallenged\\ntestimony of a respected forensic pathologist” as “against the word of\\na disgraced medical examiner,” and “would therefore, more likely\\nthan not, harbor a reasonable doubt about Rivas’s guilt.” Id. at 543,\\n546.26 At the same time, the court characterized the case as “close,”\\nnoting that it “would not expect a lesser showing of actual innocence\\nto satisfy the Schlup standard.” Id. at 546.\\n\\n 2. Hyman’s Credible New Evidence Does Not Make\\n the Compelling Showing of Actual Innocence\\n Required by Schlup\\n\\n With the benefit of these precedents, we apply the Schlup\\nstandard here and conclude that Hyman’s new evidence, even if\\ncredible, is not sufficiently compelling as to his actual innocence to\\nmake it more likely than not that “no reasonable juror,” aware of the\\nnew evidence, would return a guilty verdict on the charged crimes.\\nSchlup v. Delo, 569 U.S. at 329 (internal quotation marks omitted). This\\nis evident from (a) the substance of the evidence itself, (b) its\\ncomparison to precedent, and (c) the totality of the evidence.\\n\\n a. Substance\\n\\n Plainly, the substance of credible new evidence will bear on\\nhow compellingly it demonstrates actual innocence. The new\\nevidence established that Ellis did not see the March 10 shootout and,\\n\\n\\n26The court noted further new circumstantial evidence—“new” because not disclosed by\\nthe prosecution to the defense at trial—that was, at least, consistent with the victim dying\\non Saturday night: (1) an identified neighbor of the victim swore in an affidavit that, while\\nwatching “Saturday Night Live” late on Saturday night March 28, she had heard a\\n“woman’s voice,” “shriek or scream,” “like someone was in trouble and not like anyone\\nkidding around,” Rivas v. Fischer, 687 F.3d at 529 (internal quotation marks omitted); and\\n(2) an unidentified neighbor reported hearing a dog barking and a car speeding away from\\nthe vicinity of the victim’s home around 11:00 p.m. on Saturday night.\\n\\n\\n\\n 45\\n\\nthus, lied in identifying Hyman as a participant. That is quite\\ndifferent from new evidence that an eyewitness to a crime falsely\\nidentified a person other than the one she actually saw commit it. Such\\na false identification can bear on actual innocence because it is more\\nlikely than not that an accused did not commit a crime if someone else\\nin fact did. But no such conclusion obtains in the circumstance here.\\nEllis’s failure to see the shootout means she cannot inculpate\\npetitioner (or anyone else), but neither can she exonerate him. She\\nsimply has no eyewitness evidence bearing on either petitioner’s guilt\\nor his innocence. Whatever question that might raise as to the\\nsufficiency of the prosecution’s case absent Ellis’s testimony, it does\\nnot indicate Hyman’s likely innocence, much less do so compellingly.\\nSee Bousley v. United States, 523 U.S. at 623 (distinguishing factual\\ninnocence from “legal insufficiency”); accord Dunham v. Travis, 313\\nF.3d at 730.\\n\\n b. Precedent Comparison\\n\\n The failure of Hyman’s new evidence to make a compelling\\nshowing of innocence is further demonstrated by a comparison to\\nSchlup, House, and Rivas. In each of these cases, the new evidence\\ndirectly supported petitioner’s factual innocence by indicating either\\nthat he did not commit, or could not have committed, the crimes of\\nconviction.\\n\\n In Schlup, inmate‐eyewitnesses to a prison stabbing swore that\\npetitioner was not one of the three (identified) men whom they saw\\nparticipate in that crime. If credible, this new evidence indicated that\\npetitioner did not commit the crime. Further, in Schlup, a former police\\nlieutenant swore that he was disciplining petitioner at about the time\\nof the stabbing. Such new evidence indicated that petitioner could not\\nhave committed the crime within the time between the discipline\\n\\n\\n 46\\n\\nencounter and his arrival in the prison dining room as indicated on a\\ntimed prison video recording.\\n\\n In House, credible new tests of forensic evidence used to\\nidentify petitioner at trial as the murderer discredited those\\nidentifications. Further, two witnesses credibly testified to hearing\\nthe victim’s husband admit to killing his wife. Such evidence\\nindicated that the petitioner did not kill the victim, because her\\nhusband had.\\n\\n Finally, in Rivas, credible new forensic evidence showed that\\nthe victim died, not at the time reported by a discredited medical\\nexaminer, but at a later time for which petitioner had an unchallenged\\nalibi. Thus, the new forensic evidence together with the alibi\\nindicated that petitioner could not have committed the murder at\\nissue.\\n\\n Although the evidence in both House and Rivas was thus found\\ncredibly to show that petitioner likely did not commit, or could not\\nhave committed, the crimes of conviction, the courts characterized the\\ngateway showing in each case as “close.” House v. Bell, 547 U.S. at 554;\\nRivas v. Fischer, 687 F.3d at 546. Indeed, in Rivas, this court observed\\nthat it “would not expect a lesser showing of actual innocence” than\\nthat made there “to satisfy the Schlup standard.” 687 F.3d at 546.\\n\\n The new evidence here makes a far “lesser showing” of actual\\ninnocence than that in Rivas, House, or Schlup. Evidence that Ellis\\nfailed to see the March 10 shootout leaves the trial record with no\\neyewitness identification of Hyman as the person firing a gun from\\nthe green Mazda. But the absence of such evidence does not mean\\nthat Hyman did not, or could not, have participated in the shootout.\\nIt means only that Ellis does not know who, if anyone, did. This is\\n\\n\\n 47\\n\\nnot to foreclose the possibility that, in some circumstances, a recanted\\nidentification based on an admitted lack of knowledge, might so\\n“thoroughly undermine[] the evidence supporting the jury’s verdict”\\nas to support the probability determination required by Schlup. Id. at\\n543; see also House v. Bell, 547 U.S. at 553–54. We conclude only that\\nthis is not such a case. To explain, we proceed to review the totality\\nof the evidence.\\n\\n c. Totality of the Evidence\\n\\n The district court concluded that without Ellis’s identification,\\nthe prosecution effectively had no case against Hyman. See Hyman v.\\nBrown, 197 F. Supp. 3d at 462–63. The totality of the evidence shows\\notherwise.\\n\\n i. Hyman Places Himself at the Shootout\\n in the Green Mazda\\n\\n To explain, Ellis’s trial testimony can be understood to consist\\nof two parts: (1) she saw Hyman at the scene of the shootout parked\\noutside 1540 Hassock Street in a green Mazda, and (2) she saw Hyman\\nfiring a gun from the car’s passenger window. Ellis did not recant the\\nfirst statement. At the habeas hearing, she maintained that on March\\n10, 2000, she saw Hyman pull up to 1540 Hassock Street in a green\\ncar. When she heard gunshots, she ran inside without seeing who\\nwas doing the shooting. See supra at 20. But even if Ellis had recanted\\nthe first part of her trial testimony, that would not help Hyman\\nbecause he does not dispute his presence at the shootout. The jury\\nheard his statements to the police and grand jury admitting that, at\\nthe time of the shootout, he was indeed double‐parked outside 1540\\nHassock Street, alone, in his green Mazda. Moreover, Hyman\\nacknowledged that he was not coincidentally caught up in the\\n\\n\\n\\n 48\\n\\nshootout; he professed to be its unarmed target.27 In light of these\\nadmissions, the singular focus of Hyman’s actual innocence claim is\\nthe second part of Ellis’s testimony. Is it more likely than not that,\\nupon learning that Ellis did not see Hyman firing a gun during the\\nMarch 10 shootout—because she did not see the shootout at all—no\\nreasonable juror would find him guilty beyond a reasonable doubt of\\nthe charged crimes? See Schlup v. Delo, 569 U.S. at 329. The totality of\\nthe record does not admit that conclusion.\\n\\n ii. Eyewitnesses See Gunfire From Vicinity\\n of Hyman’s Car\\n\\n Ellis’s recantation shows that she had no probative evidence as\\nto whether Hyman fired a gun during the shootout. But not so other\\neyewitnesses. Three residents of the area testified at trial to seeing\\nflashes of gunfire coming from a green (or dark) car or its occupant\\nduring the shootout. Each witness identified the car as resembling\\nHyman’s green Mazda.\\n\\n Margaret Contreras testified that, as she was trying to move the\\nfatally wounded Maria Medina from the lobby of 1540 Hassock Street\\nto the relative safety of an elevator, she saw flashes of gunfire coming\\nfrom the passenger window of a dark green car. See supra at 9. Lynn\\nBurton testified that, upon hearing gunfire, she looked out a window\\nof her third‐floor apartment at 1540 Hassock Street and saw “shots\\nbeing fired” from both a red car and the dark car parked behind it,\\nwhich she described as “fire coming out of a window.” Trial Tr. at\\n\\n\\n27Because Hyman did not testify at trial or at the habeas hearing, his ambush claim was\\nnot tested by cross‐examination. Nevertheless, he himself cast doubt on his credibility by\\ninitially lying to police about driving to Hassock Street in a red Acura rather than the green\\nMazda that he knew was pocked with bullet marks. See, e.g., United States v. Glenn, 312\\nF.3d 58, 69 (2d Cir. 2002) (observing that defendant’s “false exculpatory statements to law\\nenforcement officials may be circumstantial evidence of consciousness of guilt”).\\n\\n\\n 49\\n\\n1628. Deborah McCoy, who lived across from 1540 Hassock Street,\\ntestified that, after hearing gunfire, she looked out the kitchen\\nwindow of her apartment and saw a man she recognized as Osimba\\nRabsatt firing a gun from near a red car, while another man, whom\\nshe did not know, got out of a dark car parked behind the red one,\\nfired a gun, and then got back in the car. See supra at 10–11.\\n\\n The fact that none of these women could identify the occupant\\nof the green car is of no import because Hyman himself provided that\\nevidence. He stated that he was the sole occupant of the green Mazda\\nthat was involved in the shootout. What is significant about these\\nthree women’s testimony, then, is that each of them—viewing the\\nshootout separately and from different vantage points—reported\\nseeing gunfire coming from that car or its occupant. None testified to\\nseeing the car ambushed.\\n\\n Insofar as the witnesses’ recollections differed on certain\\npoints—e.g., the exact color of the car, whether its occupant fired from\\ninside or outside the car—these differences are not a product of Ellis’s\\nrecantation. Rather, they were known to the trial jury, which\\nnevertheless voted to convict. Even with new evidence that Ellis had\\nnot seen the shootout, a reasonable juror would more likely than not\\nattribute any car‐color confusion among other witnesses to the limited\\nlight available at 7:00 p.m. in March for distinguishing among dark\\ncolors. As for whether Hyman fired some shots from inside or outside\\nhis car—or from both—a reasonable juror would more likely than not\\nconclude that it was not necessary to resolve differences on this point\\nbecause, in any event, the eyewitnesses all testified to seeing flashes\\nof gunfire coming from the direction of the green car, not only at the\\n\\n\\n\\n\\n 50\\n\\ncar as Hyman told police in claiming to have been ambushed.28 In\\nlight of consistent eyewitness testimony on this point, and Hyman’s\\nown admissions to being the sole occupant of the green car, Ellis’s\\nrecantation of her gunfire sighting (based on a failure to see the\\nshootout at all) would not likely preclude any reasonable juror from\\nfinding Hyman’s guilt proved beyond a reasonable doubt.\\n\\n In concluding otherwise, the district court reasoned that Ellis’s\\nrecantation might heighten juror skepticism about Contreras’s,\\nBurton’s, and McCoy’s testimony because these women, like Ellis,\\nhad relationships with Whitmore or members of his family, providing\\na motive for them to testify in his favor. The district court thought\\nsuch bias was evident in Contreras’s belated trial disclosure that she\\nsaw Whitmore enter 1540 Hassock Street carrying a gun. While that\\nbelated disclosure—known to the trial jury—could certainly inform\\nan assessment of Contreras’s credibility, in the end, it is not likely that\\nEllis’s recantation would make every reasonable juror reject\\nContreras’s testimony.\\n\\n To begin, it hardly appears likely that Contreras delayed\\nreporting Whitmore’s March 10 gun possession to shield him from\\npolice suspicion. After all, on the day after the shootout, March 11,\\n2000, Whitmore himself told police that he had been in possession of\\na gun, firing an entire seven‐shot clip at Hyman during the gunfight.\\nWhitmore simply attempted to minimize his culpability by saying\\n\\n28There is some non‐trial evidentiary support for Hyman shooting from outside as well as\\ninside a car. The Howard statement summarized supra at 25–26, identifies Hyman as one\\nof two shooters exiting the red Acura. And a police report summarizing interviews with\\n1540 Hassock Street residents indicates that, although most did not see the shooting, third‐\\nfloor resident Tiffany Weeks stated that she saw two black males exit a red Acura and a\\ngreen Mazda, fire guns, and then speed away. In sum, even without Ellis, five\\neyewitnesses (six with Whitmore) reported seeing gunfire coming from, not only at, the\\nparked cars. No person interviewed reported seeing an ambush of the cars.\\n\\n\\n\\n 51\\n\\nthat he acted defensively rather than offensively. The fact that\\nContreras had seen Whitmore with a gun at the conclusion of the\\nMarch 10 shootout did nothing to support or undermine Whitmore’s\\ndefensive version of events. In any event, when questioned at trial,\\nContreras admitted seeing Whitmore. This makes it more, not less,\\nlikely that she would not lie under oath, whether about seeing\\nWhitmore, seeing gun flashes, or any other part of her testimony.\\n\\n Burton’s gunfire sighting also sheds no light on who was the\\naggressor in the gunfire exchange.\\n\\n As for McCoy, she testified that she “first” saw gunfire coming\\nfrom occupants of the parked cars. Trial Tr. at 1813. But the statement\\nmust be considered in context. The gunshots McCoy first saw\\nfollowed the gunshots she heard, which is what prompted her to go\\nto the window. In short, when McCoy went to the window, the\\nshootout was already underway. Thus, her testimony also did not\\nidentify either side in the shootout as the aggressor. Moreover, it\\nhardly appears more likely than not that McCoy’s mutual godmother\\nrelationship with members of Whitmore’s family prompted her to\\nshade testimony in his favor. She is the one trial witness who, on\\ndirect examination, specifically identified Whitmore as one of the\\nMarch 10 shooters. Meanwhile, she did not identify Hyman. At trial,\\nall she could state was that she saw gunfire coming from a red car and\\na dark car. While she identified Rabsatt as the driver of the red car,\\nMcCoy could not identify the driver of the dark car. It is Hyman’s\\nown statements that, even after Ellis’s recantation, identify him as the\\nsole occupant of that car.\\n\\n\\n\\n\\n 52\\n\\n iii. Ballistic Evidence Indicates a Gunfire\\n Exchange, not an Ambush\\n\\n Ballistic evidence makes it unlikely that any reasonable juror\\nwould reject eyewitness testimony about seeing flashes of gunfire\\ncoming from Hyman’s car. Notably, .45 caliber and 9mm shell\\ncasings were retrieved from the middle of Hassock Street, which was\\nright about where they would have been discharged from guns fired\\nfrom the passenger side window of a car double‐parked across from\\n1540 Hassock Street, where Hyman placed his own car. Meanwhile,\\n.380 caliber shell casings recovered from the walkway bordering 1540\\nHassock Street were consistent with guns fired from that area toward\\nthe car, as Whitmore himself admitted. In short, the casings retrievals\\nindicated gunshots fired both from and at the green car, not an\\nambush of the green car’s unarmed occupant.29\\n\\n As noted supra at 13, the guns that discharged the .45 caliber\\nand 9mm casings retrieved from the middle of Hassock Street were\\nthemselves recovered from the wheel well of Whitmore’s car. If\\nHyman fired one of the guns that discharged some of these casings, it\\nis curious that the gun would wind up in Whitmore’s car. The record\\noffers no satisfactory explanation. At trial, the prosecution suggested\\nthat someone planted the guns in Whitmore’s car to deflect blame\\n\\n\\n29At the habeas hearing, respondent stated that the ballistic evidence was not “probative\\nas to . . . the defendant’s participation.” Habeas Hearing Tr. at 45. We construe this to\\nconcede that the ballistic evidence could not specifically identify Hyman as the person\\nresponsible for particular ballistic evidence. We do not construe it as a concession that the\\nballistic evidence was irrelevant to the chain of circumstances establishing Hyman’s guilt,\\nmuch less to Hyman’s ability to make a compelling showing of actual innocence. Indeed,\\nin the sentence following the “participation” statement, respondent noted the recovery of\\n“several rounds of shells . . . or ballistics from the car [Hyman] was purportedly driving at\\nthe time.” Id. As noted in text, spent shells would indicate shots fired from the general\\nlocation where they were retrieved, i.e., the parked green Mazda, while bullet marks on\\nthat car would indicate shots fired toward it. In sum, the ballistic evidence provides strong\\ncircumstantial evidence of a gunfire exchange, not an ambush.\\n\\n\\n 53\\n\\nfrom Hyman and Rabsatt. The hypothesis is pure speculation.\\nNevertheless, it was argued to the jury at Hyman’s trial, which either\\naccepted it or, more likely, did not find it necessary to resolve to\\nconclude that guilt was established beyond a reasonable doubt. The\\nimportant point for purposes of actual innocence is that Ellis’s\\nrecantation neither simplifies nor complicates the puzzle.\\nAccordingly, we do not think it more likely than not that, with the\\naddition of Ellis’s recantation to the gun‐location puzzle, no\\nreasonable juror would find Hyman guilty beyond a reasonable\\ndoubt based on the totality of other evidence.\\n\\n The conclusion finds further support in ballistic evidence\\nrecovered from the 1540 Hassock Street building. The height of bullet\\nholes in the lobby door was consistent with gunshots fired toward the\\nbuilding from a relatively low position, such as the open window of\\na parked car, as Contreras and Burton witnessed. That the Mazda’s\\nwindow was open during the shootout was confirmed by shattered\\nglass inside the passenger door window track. The window did not\\n“pop” in Hyman’s face, as he told police in trying to support his\\nambush story. See United States v. Glenn, 312 F.3d 58, 69 (2d Cir. 2002).\\n\\n Indeed, for bullets entering 1540 Hassock Street—including the\\nbullet killing Ms. Medina—to have come from persons firing at the\\ngreen Mazda as Hyman asserted, rather than from it as eyewitnesses\\ntestified, one or more shooters would have had to have been firing\\ntoward the car’s driver’s side. Hyman told police he was shot at from\\nboth sides of his car. See supra at 8. But that account is convincingly\\nbelied by the complete lack of bullet marks on the Mazda’s driver’s\\nside. Nor were there bullet marks on the car’s rear to support\\nHyman’s story that the men who ambushed him first fired from that\\ndirection.\\n\\n\\n\\n 54\\n\\n In sum, the totality of ballistic evidence indicates a gunfire\\nexchange on March 10, not a one‐sided ambush.\\n\\n As for other evidence, not admitted at trial—such as the\\nWhitmore, Howard, and Tiffany Weeks statements—we do not here\\nassume a reasonable juror’s likely reliance on those statements in\\nfinding Hyman guilty. We note only that the statements do not\\nsupport his claim of actual innocence.\\n\\n Any trial perjury is a serious matter and nothing mitigates\\nEllis’s willingness to lie under oath—a willingness she appeared to\\nmaintain, at least in part, even at the habeas hearing. Nevertheless,\\nwhere, as here, a witness recants a trial identification, not because the\\nwitness knows the accused not to be the person firing a gun during a\\nshootout, but because the witness did not see the shootout at all, that\\nnew evidence is far less compelling in demonstrating actual\\ninnocence than that in Schlup, House, and Rivas. In light of petitioner’s\\nown admission that he was the sole occupant of the green car that was\\nthe focal point of the shootout; three eyewitnesses’ testimony to\\nseeing flashes of gunfire coming from that car or its occupant; and\\nballistic evidence indicating that bullets were fired from, not just at,\\nthe car, we cannot conclude that, upon learning of the Ellis\\nrecantation, it is more likely than not that “no reasonable juror”\\nwould still find Hyman guilty beyond a reasonable doubt of the\\ncharged crimes.\\n\\n Accordingly, we conclude that Hyman has not made the actual\\ninnocence showing necessary to pass through the narrow gateway for\\n\\n\\n\\n\\n 55\\n\\nfederal habeas review of his procedurally barred Sixth Amendment\\nclaim.30\\n\\n CONCLUSION\\n\\n To summarize, we conclude:\\n\\n 1. There are no categorical limits on the types of evidence that\\n can be offered to demonstrate actual innocence and, thus,\\n the district court did not err in considering impeachment\\n evidence.\\n\\n\\n\\n30Because Hyman did not carry his gateway burden, the district court should not have\\ndecided—and we need not review—his barred Sixth Amendment claim. We, nevertheless,\\nnote that the merits of that claim are not apparent.\\n\\nFirst, it is not clearly established by Supreme Court precedent that a fee dispute between a\\ndefense attorney and a potential witness gives rise to an “actual conflict” of interest that\\nallows a petitioner to claim ineffective assistance of counsel without showing prejudice. In\\nCuyler v. Sullivan, 446 U.S. 335, 349–50 (1980), the Court recognized multiple concurrent\\nrepresentations to give rise to an actual conflict, but in Mickins v. Taylor, 535 U.S. 162 (2002),\\nit cautioned against an “expansive application” of Sullivan to such circumstances as when\\n“representation of the defendant somehow implicates counsel’s personal financial\\ninterests,” Mickins v. Taylor, 535 U.S. at 174–75. In Tueros v. Greiner, 343 F.3d 587 (2d Cir.\\n2003), this court stated that “we must look to Sullivan, not . . . Mickens” for “‘clearly\\nestablished Federal law,’” id. at 593. Nevertheless, we have since expressly relied on\\nMickens in refusing to extend Sullivan to circumstances involving an attorney’s ethical\\nobligation to correct false testimony. See Torres v. Donnelly, 554 F.3d 322, 326 (2d Cir. 2009).\\nThus, no clearly established Supreme Court precedent establishes an actual conflict of\\ninterest here.\\n\\nSecond, even if the circumstances indicated such a conflict, Hyman would have to show\\nthat it “‘adversely affected his lawyer’s performance.’” Strickland v. Washington, 466 U.S.\\nat 692 (quoting Cuyler v. Sullivan, 446 U.S. at 350). The state court found that Hyman failed\\nto do so because the Hinkson and Sanders affidavits allowed only speculation as to why\\ntrial counsel had not called Hinkson. The conclusion cannot be deemed an unreasonable\\napplication of clearly established law because Hinkson’s own photographs seem to refute,\\nrather than support, his opinion that it was impossible to see the shootout from the third‐\\nfloor hallway window of 1540 Hassock Street. In these circumstances, the decision to\\nforego calling a particular witness is generally a matter of strategy falling within the wide\\nrange of reasonable professional assistance. See Greiner v. Wells, 417 F.3d 305, 323 (2d Cir.\\n2005); see also Bell v. Cone, 535 U.S. 685, 701–02 (2002).\\n\\n\\n 56\\n\\n2. The district court did not clearly err in finding some of the\\n new evidence Hyman offered to support his actual\\n innocence claim credible.\\n\\n3. Even deferring to that credibility finding, however, on de\\n novo review, we conclude that Hyman has not made the\\n compelling showing of actual innocence necessary for\\n merits review of his procedurally barred Sixth Amendment\\n claim.\\n\\n a. The credible new evidence showed only that a\\n recanting trial witness did not view the shootout at\\n issue in the charged crimes, not that Hyman did not\\n or could not have committed those crimes as\\n indicated by new evidence found compelling in\\n Schlup, House, and Rivas.\\n\\n b. The totality of the evidence nevertheless showed:\\n\\n i. Hyman’s admitted presence at the crime scene\\n as the sole occupant of the dark green car that\\n was the focus of the shootout,\\n\\n ii. Three eyewitnesses, viewing the shootout from\\n difference vantage points, each saw gunshots\\n fired from the direction of that car,\\n\\n iii. Ballistic evidence strongly corroborates that\\n gunshots were fired from, not only at, Hyman’s\\n car, and\\n\\n iv. No evidence (except for Hyman’s own self‐\\n serving account) supports his ambush claim.\\n\\n\\n\\n 57\\n\\n On this record, we cannot conclude that, upon learning of the\\nrecanted trial identification by a witness who had not seen the\\nshootout, it is more likely than not that no reasonable juror would find\\nHyman guilty beyond a reasonable doubt.\\n\\n Accordingly, the judgment of the district court is REVERSED\\nand the petition for a writ of habeas corpus is DISMISSED.\\n\\n\\n\\n\\n 58\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4409476/\", \"author_raw\": \"REENA RAGGI, Circuit Judge:\"}, {\"author\": \"DENNIS JACOBS, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"DENNIS JACOBS, Circuit Judge, concurring:\\n\\n I subscribe to the meticulous opinion of the Court.\\n\\n The issue of actual innocence is an uncomfortably close question here. Since,\\n\\nin my view, Hyman’s underlying claim of ineffective assistance of counsel fails,\\n\\nHyman’s inability to establish the gateway claim of actual innocence does not alter\\n\\nthe result. Still, it bears notice that actual innocence is a hurdle raised high by\\n\\nprecedents, presumptions, standards of review, and strict deference to state court\\n\\nrulings that (in my view) command deference without necessarily earning assent.\\n\\n The new evidence propounded by Hyman amputates chunks of the\\n\\nprosecution case presented at trial. Hyman was certainly present; but Ellis,\\n\\napparently the only witness who testified about seeing seen Hyman at the scene,\\n\\ncredibly recanted her testimony that she saw him fire a gun; moreover, she\\n\\ntestified that she was threatened with a gun to inculpate Hyman. And although\\n\\nthe district court was skeptical of Ellis’s account of the gunman, the thrust of her\\n\\ntestimony is supported by other evidence adduced by Hyman: Benitez’s testimony\\n\\nthat Ellis and Ellis’s boyfriend asked Benitez to lie about what she saw the night\\n\\nof the shooting. These recantations raise nagging doubts when considered with\\n\\nthe disturbing fact that the gun supposedly used by Hyman just before he fled the\\n\\nscene by car was found in the spare‐wheel well of the locked trunk of someone\\n\\nelse’s car parked at the scene.\\n\\n As the Court’s opinion makes plain, Hyman’s actual innocence claim is\\n\\n“credible.” Op. at 41. However, the limits on our review compel the conclusion\\n\\nthat the evidence is insufficiently “compelling” to clear the gateway finding of\\n\\nactual innocence. We are forced to this conclusion because, as the Supreme Court\\n\\nhas instructed, it is not enough to show that the prosecution’s case is lacking: a\\n\\npetitioner must set forth evidence of “factual innocence, not mere legal\\n\\ninsufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). This standard\\n\\ndefeats Hyman’s claim. But it is worth mentioning that, if Hyman were on trial\\n\\ntoday and the prosecution’s case were critically impaired as it now is, Hyman\\n\\nwould not have to establish his own innocence.\\n\\n We are required to give deference and to observe these strong limitations on\\n\\nour own power. But we are not required to do so without disquiet. I have a strong\\n\\ndoubt that the victim was killed by a bullet fired by Hyman from a gun that\\n\\nunaccountably turned up hidden in a place inaccessible to him. I concede that that\\n\\ndoubt is not enough.\\n\\n * * *\\n\\n I commend this case to the attention of the Governor, who alone has power\\n\\nto grant relief if relief is justified. See, e.g., Fox v. Johnson, 832 F.3d 978, 990 (9th\\n\\nCir. 2016) (Hurwitz, J., concurring). In making that determination, the Governor’s\\n\\ninquiry would be greatly advanced by the detailed account of facts in the opinion\\n\\nof the Court.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4409476/\", \"author_raw\": \"DENNIS JACOBS, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"JACOBS"},"judge2":{"kind":"string","value":"RAGGI"},"judge3":{"kind":"string","value":"DRONEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4632223/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Tullie HYMAN, Petitioner-Appellee, v. William D. BROWN, Superintendent, Respondent-Appellant\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-06-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n16‐2723‐pr\nHyman v. Brown\n\n\n In the\n United States Court of Appeals\n for the Second Circuit\n\n\n AUGUST TERM 2017\n\n No. 16‐2723‐pr\n\n TULLIE HYMAN,\n Petitioner‐Appellee,\n\n v.\n\n WILLIAM D. BROWN, Superintendent,\n Respondent‐Appellant,\n\n\n\n On Appeal from the United States District Court\n for the Eastern District of New York\n\n\n\n ARGUED: NOVEMBER 29, 2017\n DECIDED: JUNE 24, 2019\n\n\n\nBefore: JACOBS, RAGGI, and DRONEY, Circuit Judges.\n ________________\n\n\n On appeal from a judgment of the United States District Court\nfor the Eastern District of New York (Dearie, J.) granting habeas\ncorpus relief from a state murder conviction, see 28 U.S.C. § 2254,\nrespondent challenges the district court’s determinations that (1)\npetitioner made the gateway showing of actual innocence necessary\n\nfor merits review of his procedurally barred claim of ineffective\nassistance of counsel, and (2) the state court’s rejection of that Sixth\nAmendment claim was an unreasonable application of clearly\nestablished Supreme Court precedent. For reasons stated herein, we\nreject the gateway determination and, therefore, dismiss without\naddressing the barred Sixth Amendment claim.\n\n Judgment REVERSED and Petition DISMISSED.\n\n Judge Jacobs concurs in a separate opinion.\n\n\n\n\n RANJANA C. PIPLANI, Assistant District\n Attorney (John M. Castellano, Assistant\n District Attorney, on the brief), Kew Gardens,\n New York, for Richard A. Brown, District\n Attorney, Queens County, for Respondent‐\n Appellant.\n\n GLENN A. GARBER (Rebecca E. Freedman, on\n the brief), The Exoneration Initiative, New\n York, New York, for Petitioner‐Appellee.\n\n\nREENA RAGGI, Circuit Judge:\n\n Respondent William Brown appeals from a judgment entered\non July 13, 2016, in the United States District Court for the Eastern\nDistrict of New York (Raymond J. Dearie, Judge), which, pursuant to\n28 U.S.C. § 2254, grants petitioner Tullie Hyman relief from a New\nYork State judgment convicting him of, among other crimes, the\nsecond‐degree depraved indifference murder of Maria Medina, the\ninnocent victim of a gunfight bullet gone astray. See Hyman v. Brown,\n197 F. Supp. 3d 413 (E.D.N.Y. 2016). The district court concluded that\n\n\n 2\n\nHyman’s conviction had been obtained in violation of the Sixth\nAmendment right to effective assistance of counsel because, as the\nresult of a conflict of interest grounded in a fee dispute with a private\ninvestigator, counsel failed to call the investigator as a witness at\nHyman’s trial, where he could have offered evidence to impeach the\nprosecution’s lead identification witness. See id. at 464–66.\n\n When Hyman earlier presented this constitutional claim in a\ncollateral state challenge to conviction, a New York court rejected it\non a state procedural ground, as well as on the merits. See People v.\nHyman, No. 1787/00 (Sup. Ct. Queens Cty. Aug. 4, 2009) (reproduced\nin App’x 3285–95). The independent procedural ruling erected a bar\nto federal habeas review that Hyman concedes he cannot overcome\nby showing good cause to excuse his procedural failure and ensuing\nprejudice. See House v. Bell, 547 U.S. 518, 536 (2006) (collecting cases\ndiscussing “cause and prejudice” exception to procedural bar).\nNevertheless, the law affords another narrow “gateway” to merits\nreview of defaulted claims for habeas petitioners who can make\ncredible and compelling showings of actual innocence. Id. at 538. The\ndistrict court found that Hyman satisfied this demanding standard\nand, thus, reached the merits of his Sixth Amendment claim. See\nHyman v. Brown, 197 F. Supp. 3d at 463. Respondent here challenges\nboth this gateway finding and the district court’s identification of\nSixth Amendment error.\n\n On de novo review of petitioner’s actual innocence claim, see\nRivas v. Fischer, 687 F.3d 514, 543 (2d Cir. 2012) (stating that actual\ninnocence determination presents “mixed question of law and fact”\nreviewed de novo), we conclude that Hyman has not carried his\ngateway burden. Accordingly, we vacate the challenged judgment\nand order Hyman’s habeas petition dismissed.\n\n\n\n 3\n\n BACKGROUND\n\n In reviewing a gateway claim of actual innocence, a court\n“must consider all [record] evidence, old and new, incriminating and\nexculpatory, without regard to whether it would necessarily be\nadmitted under rules of admissibility that would govern at trial.”\nHouse v. Bell, 547 U.S. at 538 (internal quotation marks omitted). Our\nbackground discussion is, therefore, necessarily lengthy.\n\nI. Overview\n\n On the evening of March 10, 2000, Maria Medina was\nperforming volunteer “tenant patrol” duty in the lobby of 1540\nHassock Street, the Queens apartment building where she resided\nwithin the Redfern public housing project.1 At approximately 7:00\np.m., a shootout erupted in the street in front of that building (“March\n10 shootout”). Within minutes, more than thirty bullets were fired\nfrom at least four different weapons. One of these bullets entered the\nlobby and killed Ms. Medina.\n\n New York State charged four persons with crimes relating to\nthe March 10 shootout: Jonathan Whitmore and Derek Harris, who\nwere thought to have been shooting from the fence and walkway\nadjoining 1540 Hassock Street toward the street; and Osimba Rabsatt\nand petitioner Tullie Hyman, who were thought to have been\nshooting from the street toward the building. Only Rabsatt and\nHyman stood trial. Whitmore and Harris each pleaded guilty to\n\n\n\n\n1 Tenant patrol is a program whereby residents of public housing volunteer to provide\nservices, such as signing in visitors, to enhance the security of their homes. See Trial Tr. at\n779–80; see also Engagement, N.Y.C. PUB. HOUS. AUTH., https://www1.nyc.gov/site/ny‐\ncha/residents/getting‐involved‐as‐a‐resident.page (last visited June 21, 2019).\n\n\n 4\n\ncriminal possession of a weapon and were sentenced to respective\nprison terms of seven years and two years.\n\n At the Rabsatt‐Hyman trial, the prosecution’s theory was that,\non the night of March 10, these two men drove to 1540 Hassock Street\nin a red Acura (Rabsatt) and a green Mazda (Hyman), double‐parked\nthe cars across from 1540 Hassock Street—with their passenger sides\ntoward the middle of the street and facing 1540—and proceeded to\nengage in a gunfight with Whitmore and Harris. Rabsatt successfully\nchallenged this theory by offering alibi evidence placing him\nelsewhere at the time of the gunfight. The jury acquitted him on all\ncounts. Not so Hyman, who did not dispute being at the shootout in\na green Mazda, but who maintained that he was an unarmed victim\nof, rather than a participant in, the gunfight. Finding otherwise, the\njury returned a guilty verdict against Hyman for second‐degree\ndepraved indifference murder, see N.Y. Penal Law § 125.25(2);\ncriminal possession of a weapon in both the second and third degrees,\nsee id. §§ 265.03(1), (2); and first‐degree reckless endangerment, see id.\n§ 120.25.2 Sentenced to a total prison term of 21 years to life for these\ncrimes,3 Hyman began serving his sentence in June 2002, and\nremained incarcerated until October 2016, when he was released\npursuant to the July 2016 habeas judgment granting such relief unless\nthe state took substantial steps to retry Hyman within 90 days. Failing\nto procure a stay of that order, the state released Hyman and timely\nappealed.\n\n\n2 The jury acquitted Hyman on one count: the second‐degree attempted murder of\nJonathan Whitmore. See N.Y. Penal Law §§ 110.00, 125.25.\n\n3 The state court sentenced Hyman to concurrent prison terms of 21 years to life for second‐\ndegree depraved indifference murder, 15 years for criminal possession of a weapon in the\nsecond degree, seven years for criminal possession of a weapon in the third degree, and\ntwo to six years for reckless endangerment.\n\n\n 5\n\nII. State Proceedings\n\n A. Trial\n\n 1. Trial Evidence\n\n To secure Hyman’s conviction, the state offered evidence\ngenerally falling into three categories: (1) Hyman’s own statements to\nthe authorities, (2) eyewitness accounts of the shootout, and (3)\nforensic evidence of the crime scene. Hyman offered no evidence in\ndefense.\n\n Hyman’s Statements\n\n i. March 11, 2000\n\n On March 11, 2000, upon learning that police were looking for\nhim in connection with the prior night’s shootout, Hyman voluntarily\nsurrendered himself at the 113th precinct in Queens, New York.\nWaiving his Miranda rights, Hyman admitted being present during\nthe shootout, but denied firing a weapon. To the contrary, he\nreported being unarmed when he went to 1540 Hassock Street to pick\nup his girlfriend, Shakina Harris4 and, there, was ambushed by men\nshooting at him. Hyman then gave police a sworn statement, which\na detective read to the jury as follows:\n\n On Friday [i.e., March 10, 2000] when I [i.e., Hyman] came\n home from court Shakina called me and we were going\n to meet later 8:00 or 9:00. I would pick her up at her\n building, the last one. I drove down the street, the one\n way and pulled up behind a white civic. I put [on] my\n hazard indicators, took the car out of gear, put it in\n neutral and pulled the emergency brake up.\n\n4 Shakina Harris is the sister of Derek Harris, one of the charged shooters in the case.\n\n\n 6\n\n I looked over by the stores and the building. No one was\n there. Dark station wagon was backing across from me.\n Then I heard three or four shots. I looked in my door\n mirror and saw two guys coming up behind me from the\n sidewalk firing. I got low in the car. I tried to put the car\n in gear but it stalled out. I got it back on. I saw two guys\n get out of the wagon and they were firing in my angle. I\n got the car in reverse and went around the civic. I made\n a left at the light and went to my brother’s house and told\n him what happened. Grabbed some clothes. Called my\n girlfriend and left.\n\nTrial Tr. at 1388–89.\n\n ii. March 12, 2000\n\n The following day, Hyman again waived his Miranda rights\nand told police that he had driven to 1540 Hassock Street on March\n10 in a red Acura. After Hyman stopped the car, two men emerged\nfrom the car parked behind his and began shooting at him. Other\npersons also fired at Hyman from the side of his car before he fled the\nscene.\n\n Approximately two hours later, and after Hyman spoke with\nhis mother, he revised his account, telling police that he had not\ndriven to Hassock Street in a red Acura, although he had driven such\na car in the recent past. Rather, he had driven to Hassock Street in a\ngreen Mazda that he “just recently bought.” Id. at 870.5\n\n\n\n\n5Police recovered the green Mazda from Hyman’s aunt’s garage. They elsewhere located\na red Acura linked to Hyman by papers found therein, specifically, a benefits card and a\ncourt summons in his name.\n\n\n 7\n\n iii. June 8, 2000\n\n On June 8, 2000, Hyman testified before a grand jury,\nmaintaining that he went to 1540 Hassock Street on March 10 to pick\nup his girlfriend; that he was unarmed; that after he parked, he “heard\nmultiple shots coming from the back of [his] car,” id. at 1725; that four\npeople fired at him, “two from the left side and two from the right\nside,” id. at 1731; and that, in the course of the shooting, the glass from\nthe “passenger side window” of his car “popped in [his] face,” id. at\n1734. Hyman also testified that he had driven to Hassock Street by\nhimself in a green Mazda MX6, not in a red Acura. He acknowledged\nthat, before acquiring the green Mazda, he had driven a red Acura,\nbut he said that car was not at the shootout scene. Hyman also denied\nknowing Jonathan Whitmore, threatening him, or recognizing him at\nthe shootout scene.\n\n Eyewitness Testimony\n\n While Hyman’s own statements thus established his presence\nat the March 10 shootout as the sole occupant of a green Mazda, the\nstate relied on four eyewitnesses—Margaret Contreras, Lynn Burton,\nDeborah McCoy, and Shaquana Ellis—to establish that Hyman was\nnot an unarmed ambush victim but a shooting participant in the\ngunfire exchange. Each woman testified to seeing gunshots fired\nfrom, or by the occupant of, the green Mazda, but only Ellis would\nspecifically identify Hyman as that shooter. Her recantation of that\nidentification is the basis for Hyman’s actual innocence claim.\n\n i. Margaret Contreras\n\n Margaret Contreras testified that she was on tenant patrol with\nMaria Medina and Shereda Freeman on March 10, 2000, when she\n\n\n\n 8\n\nheard several gunshots, one of which struck Medina.6 As she and\nFreeman pulled the injured Medina toward the elevator, Contreras\nsaw, through the lobby door, a “dark greenish” car parked in the\nstreet. Id. at 1038. The car’s window was down, and Contreras there\nsaw “something silverish” that “looked like a gun but it was like a\nflash.” Id. Contreras acknowledged that she did not mention the car\nor any gunfire flash in her initial police interview, explaining that\n“[n]o one ever asked” about “what happened outside of the\nbuilding.” Id. at 1096. She explained that she disclosed these facts\nwhen prosecutors showed her a photograph of a car—Hyman’s green\nMazda—and asked if she had ever seen it. She told them it looked\nlike the car outside her building on March 10 and then recounted\nwhat she had seen. Contreras testified that things were happening\n“really fast” on the night of the shootout, id. at 1040, and that her focus\nwas on getting Medina to safety rather than on trying to “see\nsomething” outside, id. at 1049. Nevertheless, she did not waver in\nher testimony to seeing a flash of gunfire coming from the window of\nthe dark green car parked outside her building on March 10.\n\n Although Contreras had never told prosecutors that she could\nidentify anyone involved in the shootout, on cross‐examination she\nstated for the first time that, on the evening of March 10, she had seen\nWhitmore, her neighbor, enter 1540 Hassock Street carrying a gun.\nLater that night, Whitmore knocked on Contreras’s door and told her\nthat he was “very sorry about all this stuff that happened.” Id. at 1084.\nContreras stated that she had not previously told anyone about seeing\nWhitmore because she was worried for her 16‐year‐old son.\n\n\n\n\n6Shereda Freeman would also testify at trial, but only to her efforts to assist Maria Medina.\nShe offered no evidence about the shootout.\n\n\n 9\n\nContreras was, in fact, moved out of her building soon after the March\n10 shootout.\n\n ii. Lynn Burton\n\n Lynn Burton testified that she was in the bedroom of her third‐\nfloor apartment at 1540 Hassock Street when she heard gunfire erupt\non the evening of March 10. From a window of her apartment facing\nthe street, Burton saw three cars double‐parked in front of the\nFriendly market across the street: “a green jeep, a red color car with\ndark tinted windows,” and “behind that . . . a dark colored car.” Id.\nat 1594. Burton initially told police the last car was a black or dark\nAltima, but, subsequently, and at trial, she identified the “dark\ncolored car” as Hyman’s green Mazda.7 Burton testified that she saw\n“shots being fired” from “the red vehicle and the dark colored vehicle\nthat was behind the red vehicle,” but that she did not see who fired\nthem. Id. at 1594–95. What she saw “was some fire coming out of a\nwindow.” Id. at 1628. Burton did not see anyone standing near or\nleaning out of the cars. Nor did she see Whitmore, whom she knew\nwell because his mother lived at 1540 Hassock Street.\n\n iii. Deborah McCoy\n\n Deborah McCoy resided in a building across from 1540\nHassock Street. She testified that after hearing gunshots on the\nevening of March 10, she ran to the kitchen window of her seventh‐\nfloor apartment, from where she saw a red Acura parked in front of\nwhat she initially described as a “black” car, but which she\nsubsequently stated looked like Hyman’s dark green Mazda as\n\n7 Specifically, Burton was shown two photographs in evidence of the green Mazda that\nHyman admitted to driving to 1540 Hassock Street on March 10 and that police recovered\nfrom his aunt’s garage. Burton testified that it looked like the car from which she had seen\nshots fired on March 10.\n\n\n 10\n\ndepicted in police photographs. Id. at 1783. McCoy testified that\nshots “first came from the cars.” Id. at 1813. She identified one\nshooter, standing near the driver’s side of the red car, as Osimba\nRabsatt, whom McCoy knew from high school. She saw another\nman—whom she could not identify—get out of the dark car, fire a\ngun, and then get back into the car. McCoy testified that she also saw\nWhitmore and Harris shooting toward the cars as they ran along a\nwalkway toward the entry of 1540 Hassock Street. McCoy knew\nWhitmore because she is his sister’s godmother and Whitmore’s\nmother is godmother to McCoy’s son. McCoy telephoned 911 to\nreport the shootout, but did not then mention any participants by\nname.8\n\n iv. Shaquana Ellis\n\n Shaquana Ellis testified that, at the time of the March 10\nshootout, she was standing in the third‐floor hallway of 1540 Hassock\nStreet with two friends, Amanda Benitez and Shaquana Delain.\nThrough a hallway window, Ellis saw two cars pull up to the\nbuilding: a red Acura with tinted windows and a green Mazda. After\nthe cars “sat there” for a while, Ellis saw “Tullie,” i.e., Hyman,\n“hanging out the . . . window, from the passenger side” of the green\ncar, “just fir[ing] off” gunshots. Id. at 1550–51. Ellis testified that she\nnever actually saw a gun; rather, she saw about five flashes of light,\nwhich looked like “fire, like red come out of the gun,” coming from\nHyman’s direction. Id. at 1553. Ellis stated that she did not see\nWhitmore, Harris, or anyone else at the shootout scene.\n\n\n\n\n8The jury heard that nine 911 calls reported the shootout. Five calls did so generally. One\ncaller reported a man with a gun in front of the building. Two callers (one of whom placed\ntwo calls) identified Whitmore as a shootout participant.\n\n\n 11\n\n Ellis admitted not reporting these events to the police when\nfirst interviewed. At that time, she told authorities she had not seen\nthe shooting at all. Ellis, nevertheless, denied telling friends or a\nprivate investigator that she had not seen the shootout. She also\ndenied that Whitmore had paid her to incriminate Hyman, although\nshe acknowledged that Whitmore had corresponded with her from\nprison.\n\n Forensic Evidence\n\n Within twenty minutes of the March 10 shootout, police had\nsecured the area in front of 1540 Hassock Street and started to collect\nevidence. Much of the ballistic evidence gathered indicated that\nbullets were fired not only at, but also from, Hyman’s green Mazda.\n\n The recovery of four discharged .45 caliber shell casings and\nfourteen discharged 9mm shell casings from the middle of Hassock\nStreet indicated gunshots fired in that vicinity, which was consistent\nwith the location of cars double‐parked there on March 10, including\nHyman’s green Mazda. Meanwhile, twelve discharged .380 caliber\nshell casings were recovered from the fence and walkway bordering\nthe front of 1540 Hassock Street. This corresponded to Deborah\nMcCoy’s account of Whitmore and Harris firing gunshots at the\nparked cars as the two men ran toward the building.\n\n Police matched most of these shell casings to firearms\nrecovered at the scene. Specifically, six of the twelve .380 caliber shell\ncasings—i.e., casings for bullets fired from 1540 Hassock Street—were\nmatched to a .380 caliber handgun found on the rear lawn of the\nbuilding. Whitmore would later admit firing that gun during the\nMarch 10 shootout. The other six .380 caliber casings went\nunmatched. Meanwhile, all recovered .45 caliber and 9mm casings—\n\n\n 12\n\ni.e., casings for bullets fired from the vicinity of the double‐parked\ncars—were matched to a .45 caliber handgun and an Intratech 9mm\nsemiautomatic pistol found inside the spare tire wheel well of\nWhitmore’s Ford Taurus.9 At trial, the prosecution took the position\nthat the bullet that killed Ms. Medina came from one of these two\nguns, which had been fired toward 1540 Hassock Street by Hyman\nand Rabsatt.10 To explain how guns fired by Hyman and Rabsatt\nwound up in Whitmore’s car, the prosecution suggested that\nsomeone might have planted them there to divert attention from\nHyman and Rabsatt. Finally, no ballistic evidence was matched to\nanother 9mm handgun, found broken into eight parts in a trash\ncompactor inside 1540 Hassock Street.\n\n Police further discovered that bullets had penetrated the door\nand rear lobby of 1540 Hassock Street. The height of some bullet\nholes—1’10” and 1’5.75” above ground level—was consistent with\nshots being fired toward the building from the window level of a car\nin the street. Bullet marks were also found in a second‐floor\napartment of 1540 Hassock Street, the Friendly market across the\nstreet, and three parked cars.\n\n Meanwhile, when police subsequently recovered Hyman’s\ngreen Mazda, they saw bullet damage concentrated on the vehicle’s\nfront hood, front passenger door, and right rear bumper, which was\nconsistent with bullets fired from the direction of 1540 Hassock Street.\nThere was no bullet damage to the car’s rear area or to its left side,\n\n\n\n\n9Police had secured that car in the vicinity of 1540 Hassock Street on March 10, but did not\nsearch it until a few weeks later.\n\n10 Apparently, the state did not test the bullet killing Ms. Medina to confirm this theory.\n\n\n 13\n\nalthough Hyman had claimed that assailants had fired at him from\nthe rear and from both sides of the vehicle.\n\n Forensic examination also determined that the Mazda’s front\npassenger window was open during the shootout—as some\neyewitnesses had reported—because the shattered window was\ninside the door’s window track and there was a bullet hole in the door\nbelow the track.\n\n B. Conviction and Direct Appeal\n\n After the jury found Hyman guilty, and the case proceeded to\nsentencing, Hyman’s counsel advised the court that a defense private\ninvestigator, Kevin Hinkson, had procured a statement from Amanda\nBenitez that impeached Shaquana Ellis’s trial testimony about\nwitnessing the March 10 shootout. Construing the disclosure as a\nrequest for adjournment of sentence in anticipation of a formal\nmotion to vacate the verdict as required by N.Y. Crim. Proc. Law\n§ 330.30, the trial court declined to grant such relief in light of two\nprior adjournments of sentence. Thus, on May 15, 2002, it sentenced\nHyman to a total of 21‐years‐to‐life imprisonment.\n\n Hyman unsuccessfully appealed his conviction, first to the\nAppellate Division, which unanimously affirmed, see People v. Hyman,\n15 A.D.3d 417, 788 N.Y.S.2d 863 (2d Dep’t 2005), and then to the New\nYork Court of Appeals, which denied review, see People v. Hyman, 4\nN.Y.3d 854 (2005).\n\n\n\n\n 14\n\n C. Collateral Challenges to Conviction\n\n 1. First § 440 Motion\n\n On April 28, 2005, Hyman moved for collateral relief pursuant\nto N.Y. Crim. Proc. Law § 440, seeking DNA testing of the 9mm\nhandgun recovered from Whitmore’s car. The state court denied the\nmotion, concluding that Hyman failed to show that DNA testing\nwould have resulted in a favorable verdict. See People v. Hyman, 51\nA.D.3d 689, 863 N.Y.S.2d 240 (2d Dep’t 2008), denying leave to appeal,\n10 N.Y.3d 960 (2008).\n\n 2. Second § 440 Motion\n\n On July 7, 2008, Hyman filed a second § 440 motion based on\n(1) newly discovered evidence, specifically, Ellis’s recantation of her\ntrial testimony; and (2) ineffective assistance of counsel in failing to\ncall investigator Hinkson as a trial witness to impeach Ellis. Various\naffidavits were offered to support the motion.\n\n a. Kevin Hinkson\n\n Investigator Hinkson stated that, in anticipation of Hyman’s\ntrial, he had inspected the third‐floor hallway at 1540 Hassock Street\nand determined that it would have been “impossible” for Ellis “to\nobserve the events of the shooting” from windows therein. Second\n440, Exh. Q. Hinkson reported providing defense counsel with\nphotographs and a video recording of the hallway supporting this\nopinion.11 Also prior to trial, Hinkson provided counsel with an\nunsigned statement from Amanda Benitez in which she admitted\n\n11Only photocopies of Hinkson’s photographs were attached to his § 440 affidavit, the\noriginal photos and videotape having been lost. Although the copies are dark, they appear\nto show that the street area where the shootout occurred could be seen from the third‐floor\nhallway window.\n\n\n 15\n\nthat, contrary to what she had told police and to what Ellis had\ntestified at trial, Benitez and Ellis had not been at a third‐floor\nwindow of 1540 Hassock Street at the time of the March 10 shootout.\n\n Hinkson stated that trial counsel never discussed any of this\nevidence with him and never sought his testimony at Hyman’s trial.\nHinkson further stated that he has never been paid for his services on\nHyman’s case. While trial counsel told him that Hyman’s family\nwould pay Hinkson directly, Hyman’s father told Hinkson that he\nhad given counsel $2,500 to pay the investigator.12\n\n b. Amanda Benitez\n\n On March 21, 2002—approximately a week after the jury found\nHyman guilty—Benitez swore to the statement she had earlier given\nHinkson, and Hyman offered that sworn statement in support of his\nsecond § 440 motion. Therein, Benitez admitted that she had not seen\nthe March 10 shootout from the third‐floor hallway window of 1540\nHassock Street. She stated that she arrived at the building only after\npolice were already at the scene. Benitez then went to “Donald’s”\nthird‐floor apartment, where Shaquana Ellis, Shaquana Delain, and\nothers had already gathered. Second 440, Exh. J. They stayed in the\napartment “all night because the police would not let us out.” Id.\nWhen police came to speak with them the next morning,\n\n Shaquana Ellis pulled me [i.e., Benitez] aside and told me\n to lie to the police and tell them I saw what happened.\n Shaquana told me a story to tell the police about my\n seeing Tully [Hyman] shooting a gun at Jonathan\n [Whitmore]. Shaquana Ellis was a friend of Jonathan\n\n\n12In a sworn affidavit, Hyman’s father, James Sanders, stated that he was “positive” he\nhad given trial counsel $2,500 to pay for a private investigator, although trial counsel\nclaimed never to have received that money. Second 440, Exh. P.\n\n\n 16\n\n Whitmore and Jonathan’s friends. I never did see Tully\n that night because I was not there when everything\n happened. . . . I told the police I was not there when it\n happened and that I did not know anything. The police\n kept telling me that I did see what happened and if I did\n not tell them, I would be arrested. . . . I told them the story\n Shaquana had told me to say and they wrote it down.\n\nId.\n\n c. Stacey Manning\n\n In another affidavit, Ellis’s friend, Stacey Manning, recounted\nthat, in the summer of 2002, Ellis told Manning that “she [i.e., Ellis]\ndidn’t see who was shooting” during the March 10 gunfight, but she\nfalsely testified in order “to help her cousin’s baby’s father, a guy\nnamed Jonathan Whitmore.” Second 440, Exh. T. Manning said Ellis\nprofessed fear that authorities “w[ould] lock her up” if she now said\nthat she had lied. Id.\n\n d. Irwin Blye\n\n Irwin Blye, a private investigator retained in connection with\nHyman’s § 440 motion, submitted an affidavit stating that, on\nSeptember 7, 2005, he conducted an audiotaped interview with\nShaquana Ellis who admitted that she had not seen the March 10\nshootout. Ellis said she was inside an apartment when she heard—\nbut did not see—the shooting occur. Ellis stated that she testified to\nseeing Hyman firing a gun because she had been threatened by\n“people from the neighborhood.” Second 440, Exh. U. She said that\nsomeone called her home, told her what had happened, and what she\nshould tell police. See Hyman v. Brown, 197 F. Supp. 3d at 439. Ellis\ntold Blye that she had admitted not seeing the shootout to Amanda\n\n\n\n 17\n\nBenitez.13 She did not withdraw her statement to the police for fear\nof prosecution, but she felt “‘real bad’ because Mr. Hyman does not\ndeserve to be in jail.” Second 440, Exh. U.\n\n e. Robert DiDio\n\n Hyman’s § 440 counsel, Robert DiDio, filed an affirmation\nstating that Ellis had confirmed to him what she had told Blye, i.e.,\nthat she had not witnessed the March 10 shootout. Ellis refused,\nhowever, to sign an affidavit to that effect and was evading a private\ndetective trying to locate her.\n\n f. Ruling\n\n The state court denied Hyman’s second § 440 motion, rejecting\nhis newly discovered evidence claim on the ground that Ellis had not\nprovided a sworn recantation of her trial testimony as required by\nN.Y. Crim. Proc. Law § 440.30(1)(a). The court declined to pursue the\nmatter at a hearing because Ellis then resided outside the court’s\njurisdiction and, thus, could not be compelled to appear. As for\nHyman’s ineffective assistance claim, the court concluded that\nHyman had defaulted the point by not raising it on direct appeal\ndespite a record basis to do so. See id. § 440.10(2)(c). In any event,\nthe court rejected the claim on the merits, finding that Hinkson’s\naffidavit did not convincingly establish that he had viewed the correct\n\n\n\n\n13Ellis’s claim that it was in a threatening phone call to her home that she was told what to\ntell police is at odds with Benitez’s claim that Ellis told her falsely to report seeing the\nshooting on the morning of March 11 before these women had been able to leave 1540\nHassock Street. See supra at 16. Ellis’s claim that she lied because she was threatened is\nalso at odds with Manning’s report that Ellis told her she did so because Whitmore was\nthe father of her cousin’s baby. See supra at 17.\n\n\n\n 18\n\nlocations in challenging Ellis’s viewpoint, and that counsel’s decision\nto forgo Hinkson’s testimony may have been strategic in any event.\n\n 3. Coram Nobis Motion\n\n Hyman thereafter moved for coram nobis relief, claiming the\nineffective assistance of appellate counsel. The state court rejected the\nclaim on the merits. See People v. Hyman, 73 A.D.3d 1211, 900 N.Y.S.2d\n918 (2d Dep’t 2010), denying leave to appeal, 15 N.Y.3d 806 (2010).\n\nIII. Federal Habeas Proceeding\n\n On August 26, 2010, Hyman filed the instant § 2254 petition pro\nse, raising eight grounds for vacating his state conviction. The district\ncourt appointed counsel, who pursued only two claims: the\nineffectiveness of trial counsel and actual innocence. Counsel\nmaintained that Hyman’s conviction had been obtained in violation\nof the Sixth Amendment because his trial attorney had operated\nunder a conflict of interest grounded in a fee dispute with investigator\nHinkson, which resulted in the attorney not calling Hinkson as a trial\nwitness to impeach Shaquana Ellis’s identification. Recognizing that\nthis Sixth Amendment claim was barred from federal review because\nthe state court had rejected it, in the first instance, on a state\nprocedural ground, and conceding that Hyman could not excuse the\ndefault through a showing of good cause and prejudice, counsel\nattempted to lift the bar by making a gateway showing of Hyman’s\nactual innocence. See Schlup v. Delo, 513 U.S. 298, 314–15 (1995).\n\n To make this gateway showing, and to demonstrate a Sixth\nAmendment violation, Hyman relied both on evidence proffered in\nsupport of his second § 440 motion (already discussed supra at 15–18)\nand on evidence developed at a three‐day hearing conducted by the\ndistrict court in December 2015 and January 2016.\n\n 19\n\n A. Hyman’s Habeas Hearing Evidence\n\n 1. Shaquana Ellis\n\n With the benefit of both court‐appointed counsel and a promise\nfrom the Queens District Attorney not to prosecute her for perjury at\nHyman’s trial, Ellis testified in the district court that she did not\nwitness the March 10 shootout and, thus, lied in testifying that she\nhad at Hyman’s trial. Ellis stated that, on March 10, she was outside\n1540 Hassock Street when she saw Hyman pull up to that building in\na green car, but she did not see him carrying or firing a gun. When\nshe heard gunshots, Ellis ran into the building, going to Apartment\n3A, where she saw Amanda Benitez and Shaquana Delain. Ellis said\nthat her trial testimony, professing to have been with these women at\nthe hallway window when the shooting occurred, was untrue. The\nonly thing she saw from the hallway window on the night of March\n10 was the lights of emergency vehicles responding to the shooting.\n\n Ellis stated that she falsely testified to witnessing the shooting\nbecause “my life and my family life was threatened.” Habeas Hearing\nTr. at 36. Ellis explained that, as she was walking home alone at\napproximately 2:00 a.m. on March 11, an unknown individual, who\n“had a hoodie and a bandana around [his] face,” exited a vehicle that\nhad pulled up beside her and pointed a gun at her face. Id. The man\ntold Ellis that if she “didn’t go and point Tullie out in a lineup, that\nthey were going to come kill [her] and [her] family.” Id. The hooded\nindividual, along with the car’s driver, instructed Ellis to tell police\nthat there were red and green cars at the shootout. Ellis said that she\nherself fabricated the detail about seeing flashes coming from\nHyman’s hands to make her account “convincing.” Id. at 72.\n\n\n\n\n 20\n\n The district court, whose opinion carefully details\ninconsistencies and implausibilities in Ellis’s testimony, found her to\nbe a “facile liar” and observed that “several features of [her]\ntestimony were effectively undermined on cross‐examination,”\nnotably, her account of the threat she claimed to have received the\nnight of the shooting. Hyman v. Brown, 197 F. Supp. 3d at 445, 461.\nNevertheless, the court concluded that the “critical admission” that\nshe had not seen the shootout or Hyman firing a weapon, “rings very\ntrue,” a conclusion reinforced by “other” corroborating evidence and\nby the state’s failure to “impugn[] Ellis’s motive for recanting.” Id. at\n461 (emphasis in original).\n\n 2. Amanda Benitez\n\n Amanda Benitez testified that neither she nor Ellis arrived at\n1540 Hassock Street until after the shooting was over and police\nalready had secured the crime scene. Benitez did not speak with Ellis\nuntil the morning after the shooting, when Ellis said that her\nboyfriend, Shah, wanted Ellis and Benitez to tell police “that Tullie\n[Hyman] was the shooter,” Habeas Hearing Tr. at 132, that the cars\ninvolved were green and red, and that Hyman “was hanging out the\ncar shooting,” id. at 136. Ellis said she was going to tell this story\nbecause she did not want Shah to go to jail, which led Benitez to think\nthat Shah might have been involved in the shootout.14 Benitez told\nEllis she did not want to give this story, and when police interviewed\nBenitez, she stated that she did not know anything about the shooting\nbecause she did not see it. Only after police insisted that she must\nknow something, did Benitez tell the story Ellis had given her, making\nclear that she had no personal knowledge of events, but was reporting\n\n14 This is the third motive identified for Ellis’s false testimony in the state trial, Ellis herself\nascribing it to death threats and Manning reporting Ellis’s wish to help Whitmore, the\nfather of her cousin’s baby.\n\n\n 21\n\nonly what she had heard. Benitez claimed that a disclaimer to this\neffect was written at the top of her police statement when she signed\nit, even though no such statement appeared on the signed document\noffered into evidence at the hearing.\n\n The district court observed that while, “[i]n many respects,\nBenitez exuded credibility,” her testimony was “problematic” in its\n“selective disavowals” of certain prior statements and the “patent\nincredibility” of her claim to have signed a statement for the police\ncontaining a now‐missing disclaimer. Hyman v. Brown, 197 F. Supp.\n3d at 462. On balance, the district court concluded that Benitez’s\n“hearing testimony reliably support[ed] the narrow point for which it\nwas offered, [i.e.,] as independent proof that Ellis was not present\nduring the shooting and thus as corroboration of the basic premise of\nthe recant.” Id.\n\n 3. Shaquana Delain\n\n Shaquana Delain, who had grown up with Ellis and Benitez,\ntestified that, on the night of March 10, 2000, she was not with Ellis\nand Benitez in the third‐floor hallway as Ellis had testified at trial.\nRather, Delain was inside an apartment at 1540 Hassock Street. She\nheard no gunshots and learned about the shootout only when a\nbuilding resident told her about it. The district court found Delain’s\ntestimony wholly believable. See id. at 452.\n\n 4. Kevin Hinkson\n\n Finally, the district court heard Kevin Hinkson testify to why\nhe concluded it would have been impossible for anyone to have\nwitnessed the shootout from the third‐floor hallway. The court\nobserved that this testimony “essentially track[ed] the substance of\n[Hinkson’s] 440 affidavits” and did not “add materially to the actual\n\n 22\n\ninnocence analysis.” Id. The court did, however, rely on Hinkson’s\ntestimony in addressing the merits of Hyman’s Sixth Amendment\nclaim.\n\n B. Respondent’s Evidence\n\n In rebuttal, respondent offered evidence developed during the\nMedina murder investigation but not introduced at trial, specifically,\nstatements inculpating Hyman by shooter Jonathan Whitmore and\neyewitness Joseph Howard.15\n\n 1. Jonathan Whitmore\n\n In a written statement to the police dated March 11, 2000,\nWhitmore admitted firing gunshots at Hyman the prior evening, but\ncharacterized his actions as defensive. Whitmore stated that he had\nbeen afraid of Hyman for some weeks after a friend told him about a\nnote left on another friend’s car stating, “I hope you[‘re] bulletproof,”\nsigned, “red Ac.” Habeas Exh. G‐14a. Although Whitmore never saw\nthe note, he interpreted it as a threat to himself, understanding “red\nAc” to refer to Hyman’s red Acura and believing that Hyman was\nupset by Whitmore “trying to talk to his girl.” Id.\n\n In a videotaped interview the same day, Whitmore stated that\nhe had never met Hyman, but knew that he had owned a red Acura\nand recently acquired a green Mazda MX6. In the weeks before the\nshootout, Whitmore’s friends told him that Hyman was driving\naround 1540 Hassock Street looking for Whitmore. Although he\ninitially tried to hide whenever he saw the red Acura, Whitmore\neventually decided to protect himself and, toward that end, placed a\n\n\n15Whitmore’s statements were held inadmissible at the Hyman‐Rabsatt trial pursuant to\nBruton v. United States, 391 U.S. 123 (1968).\n\n\n 23\n\n.380 caliber gun inside a box, inside a bag, just over the fence in front\nof 1540 Hassock Street.\n\n Whitmore stated that, on the evening of March 10, 2000, he was\noutside 1540 Hassock Street, talking with Shaquana Delain and\n“Kim,” when he saw a red Acura and green Mazda MX6 arrive at the\nbuilding, “the green car in front and the red car [] behind it.” Habeas\nExh. K at 9. As Whitmore told the women to run inside, Hyman and\nanother person began firing at Whitmore through the open front\npassenger window of the green car. Whitmore did not see what guns\nthe men were using and, therefore, “[c]ouldn’t say this was a 9mm or\nthat was a .45.” Id. at 23. What he did see was Hyman’s face and arm\nextending out of the window, then lights and sparks. Whitmore\nretrieved his own gun and “just blast[ed] back,” emptying a seven‐\nshot clip. Id. at 10. Running inside the building as he fired, Whitmore\nwent to his mother’s apartment and threw the gun out a window.\n\n The district court found Whitmore’s accounts “generalized,\nunsubstantiated[,] . . . [and] patently incredible.” Hyman v. Brown, 197\nF. Supp. 3d at 456. It observed that Whitmore “fail[ed] to offer any\nplausible basis” for interpreting the note as “a threat to him,” much\nless one requiring him to arm himself for a gunfight. Id. at 458.\nFurther, his “self‐serving” statements were in “stark conflict” with\nother evidence as well as the prosecution’s trial theory. Id. For\nexample, Whitmore placed himself in the company of two women\nwhen the shooting began, making no mention of Derek Harris, whom\nthe prosecution had portrayed as his confederate in the shootout.16\nAlso, Whitmore’s placement of the green Mazda ahead of the red\n\n16As recounted supra at 22, the district court found Shaquana Delain credible in testifying\nthat she was inside an apartment at 1540 Hassock Street when the March 10 shootout\noccurred.\n\n\n\n 24\n\nAcura conflicted with trial testimony from Ellis, Burton, and McCoy,\nwhich placed the cars in reverse order. And his professed sighting of\ntwo persons in the Mazda was at odds with Ellis’s trial testimony,\nwhich placed Hyman alone in the vehicle. Finally, the district court\nthought it more than mere coincidence that Whitmore, in disavowing\nknowledge of the type of guns fired from the cars, mentioned the\ncaliber of two guns actually used and later found in his car. Thus, the\ndistrict court concluded that “the prosecution’s resort to Whitmore’s\nstatement at the gateway hearing as a sort of smoking gun” rebutting\nHyman’s actual innocence claim “is difficult to explain; if introduced\nto rational jurors, their reaction would have to be an even further loss\nof confidence in the overall investigation.” Id.17\n\n 2. Joseph Howard\n\n On March 11, 2000, Joseph Howard told police that he was\nwalking out of 1540 Hassock Street shortly after 7:00 p.m. the previous\nnight when he saw a red, four‐door Acura with tinted windows stop\noutside the building approximately 20 feet from him. Howard saw\nthree African‐American men in the vehicle, one of whom exited the\npassenger side and began shooting what appeared to be a .45 caliber\nor 9mm handgun.\n\n\n\n17The conclusion is not ineluctable. The car‐order discrepancy seems of little import to\nWhitmore’s credibility as there is no question that he viewed the shootout and Hyman\nhimself admits that he was at the scene in his green Mazda. Further, because Ellis now\nadmits that she did not see the shootout, her testimony cannot impeach Whitmore or\nanyone else. Nevertheless, Hyman himself stated that he was alone in the green Mazda at\nthe shootout, not with another person as Whitmore recalled. But Hyman’s admission\ncorroborates Whitmore, at least to the extent he placed Hyman in the green Mazda at the\nshootout. And if Burton’s and McCoy’s testimony as to the cars’ order casts doubt on\nWhitmore’s recollection as to that fact, these witnesses support Whitmore’s identification\nof Hyman as a shooter: Burton, because she saw gun flashes coming from the green car,\nand McCoy because she saw gunshots fired by a person who briefly exited the green car.\nSee supra at 10–11.\n\n\n 25\n\n In a second interview four days later, Howard stated that he\nwas actually at a nearby bus stop, approximately 50 feet from the red\nAcura, when he saw two men exit the car. Howard heard twenty to\nthirty gunshots exchanged. He then saw the two gunmen return to\nthe Acura, which sped away.\n\n From a photo array—no longer available for review at the\nhabeas hearing—Howard identified Hyman as one of the March 10\nshooters. In neither interview did Howard mention seeing a green\ncar. Rather, he reported seeing a black jeep with tinted windows\nfollowing directly behind the Acura, as if the two cars were together.\nBut he did not state that he saw any gunshots fired from or by persons\nin that car.\n\n The district court concluded that “no rational factfinder would\nassign significant weight to” Howard’s statements because, despite\nhis photo‐array identification of Hyman as one of the shooters, “his\nstory conflicts too materially with Ellis’s for a jury to accept a\nprosecutor’s decision to offer both his and her accounts.” Id. at 459.18\nThe court further observed that “the dark car Howard says he saw\nbehind the red Acura was a Jeep, which cannot plausibly be confused\nwith a green Mazda MX6, a sports car.” Id.19 In any event, the district\ncourt noted that respondent could not offer “a definite reason” for not\ncalling Howard as a trial witness, reporting only that he was “‘very,\nvery difficult to find at the time of the investigation and not very\ncooperative.’” Id. at 458 (quoting Habeas Hearing Tr. at 5–6).\n\n\n\n18 Whatever concerns Howard’s account might raise, inconsistency with Ellis’s trial\ntestimony would not appear to be one of them once the district court credited her\ntestimony that she had not, in fact, seen the March 10 shootout.\n\n19 Hyman himself reported seeing a Jeep on Hassock Street at the time of shootout, and his\nstatements leave no doubt as to the presence of his green Mazda.\n\n\n 26\n\n C. The District Court’s Ruling\n\n 1. Actual Innocence\n\n In a 91‐page opinion reviewing the above evidence in detail, the\ndistrict court ruled that Hyman had made the gateway showing of\nactual innocence necessary to lift the procedural bar to habeas review\nof his Sixth Amendment claim. Insofar as the gateway standard\nrequired Hyman to adduce credible new evidence of innocence, the\ndistrict court ruled that he carried that burden simply through the\nManning, Blye, and Sanders affidavits offered in support of his\nsecond § 440 motion. See id. at 461. Each of those affidavits cast doubt\non Shaquana Ellis’s trial testimony professing to have witnessed the\nMarch 10 shootout. In any event, Hyman carried his burden through\nfurther new evidence: the hearing testimony of Ellis, Benitez, and\nDelain, the first two of whom were credible, if not in whole, at least\non the “narrow” proposition that Ellis was not present during the\nshooting and, thus, could not identify Hyman as a participant. Id. at\n462.\n\n The district court ruled that this new evidence made a\ncompelling showing of innocence because “unless Ellis’s [trial]\ntestimony was believable, there was essentially no case against\nHyman.” Id. The district court further concluded that Ellis’s recant\n“would likely breathe new life into the defense theory that she and\nother witnesses may have slanted their accounts to promote the\ntheme that Whitmore was the victim.” Id. at 463. Thus, the district\ncourt concluded that the new evidence made it “‘more likely than\nnot’” that “‘any reasonable juror would have a reasonable doubt’\nabout Hyman’s guilt.” Id. at 462 (quoting House v. Bell, 547 U.S. at\n538).\n\n\n\n 27\n\n 2. Sixth Amendment Claim\n\n As to Hyman’s Sixth Amendment claim, the district court\nconcluded that the state court unreasonably applied both prongs of\nStrickland v. Washington, 466 U.S. 668 (1984), in denying Hyman relief\nfrom judgment. At the objectively‐reasonable‐conduct prong of\ninquiry, the district court ruled that Strickland did not permit the state\ncourt to conclude that trial counsel’s decision not to call Hinkson\ncould have been reasonable strategy because “there is no articulable,\nreasonable, strategic reason” for counsel not to have introduced\nHinkson’s sightline findings. Hyman v. Brown, 197 F. Supp. 3d at 464.\nThe district court thought that conclusion only reinforced by the fact\nthat counsel was then operating under an “actual conflict of interest,”\ni.e., a fee dispute with the investigator. Id. at 466 (internal quotation\nmarks omitted). At the prejudice prong of inquiry, the district court\nfaulted the state court for “fail[ing] to appreciate the pivotal role\nEllis’s testimony played in the state’s case,” which meant that, “had\ncounsel successfully impeached Ellis” with Hinkson’s findings,\n“there is a more than reasonable probability that the result of the\nproceeding would have been different.” Id.\n\n DISCUSSION\n\nI. The Actual Innocence Gateway\n\n As the district court recognized, Hyman’s actual innocence\nclaim plays a “procedural, not substantive” role in this case. Rivas v.\nFischer, 687 F.3d at 541. Even if successful, the claim cannot itself\nafford Hyman habeas relief from his state conviction. It can only open\na gateway to federal review of an otherwise procedurally barred Sixth\nAmendment claim that, if itself successful, could afford him relief. See\nSchlup v. Delo, 513 U.S. at 314.\n\n\n 28\n\n This is not to minimize the importance of an actual innocence\nclaim. “[C]oncern about the injustice that results from the conviction\nof an innocent person has long been at the core of our criminal justice\nsystem,” both state and federal. Id. at 325. But within that system,\n“trial is the paramount event for determining the guilt or innocence”\nof an accused. Herrera v. Collins, 506 U.S. 390, 416 (1993). An accused\nenters trial with “a presumption of innocence” and a right to “insist\nthat his guilt be established beyond a reasonable doubt.” Id. at 398.\nOnce guilt is so established, however, a federal habeas court will not\nrelitigate the question of guilt for a state defendant who protests his\nactual innocence. See Rivas v. Fischer, 687 F.3d at 540 & n.34 (observing\nthat Supreme Court “has never explicitly recognized the existence of\na freestanding actual innocence claim”). Rather, a federal habeas\ncourt will review state convictions for constitutional error. See 28\nU.S.C. § 2254.20\n\n The law, nevertheless, affords an actual innocence gateway\nclaim because “the existence of a concededly meritorious\nconstitutional violation is not in itself sufficient . . . [to] allow a habeas\ncourt to reach the merits of a barred claim.” Schlup v. Delo, 513 U.S. at\n316. Usually, that bar will be lifted only if a petitioner demonstrates\ngood cause to excuse his default and ensuing prejudice. See House v.\nBell, 547 U.S. at 536 (collecting cases). Even in the absence of that\nshowing, however, the law recognizes that, in a “narrow class of\n\n20Actual innocence is “‘not itself a constitutional claim’”—except perhaps when raised in\nthe context of an Eighth Amendment challenge to a capital sentence. Schlup v. Delo, 513\nU.S. at 315 (quoting Herrera v. Collins, 506 U.S. at 404); cf. Moore v. Dempsey, 261 U.S. 86, 87–\n88 (1923) (observing that issue on habeas review “is not the petitioners’ innocence or guilt\nbut solely the question whether their constitutional rights have been preserved”). In\nHerrera, the Supreme Court presumed, without deciding, that the Eighth Amendment\nprohibition of cruel and unusual punishment would preclude the execution of a defendant\nwho made a “truly persuasive” demonstration of actual innocence. 506 U.S. at 417\n(concluding that defendant failed, in any event, to make that showing).\n\n\n\n 29\n\ncases,” there remains the risk of “a fundamental miscarriage of\njustice” if the defaulted constitutional claim is not heard. Schlup v.\nDelo, 513 U.S. at 315 (internal quotation marks omitted). That narrow\nclass of “truly extraordinary” cases consists of those presenting\ncredible and compelling claims of actual innocence. Id. at 338; see\nHerrera v. Collins, 506 U.S. at 404 (“[F]undamental miscarriage of\njustice exception[] is grounded in the ‘equitable discretion’ of habeas\ncourts to see that federal constitutional errors do not result in the\nincarceration of innocent persons.”); Murray v. Carrier, 477 U.S. 478,\n496 (1986) (limiting “miscarriage of justice” exception to\n“extraordinary case[s], where a constitutional violation has probably\nresulted in the conviction of one who is actually innocent”). Thus, a\nstate prisoner who “seek[s] access to a federal habeas court in the face\nof a procedural obstacle,” and who cannot overcome that obstacle by\nshowing cause and prejudice, “must advance both a legitimate\nconstitutional claim and a credible and compelling claim of actual\ninnocence.” Rivas v. Fischer, 687 F.3d at 540 (emphases in original).\n\n The petitioner’s burden in making a gateway showing of actual\ninnocence is deliberately “demanding.” House v. Bell, 547 U.S. at 538;\nsee Schlup v. Delo, 513 U.S. at 324 (observing that actual innocence\nclaims are rarely successful); accord McQuiggin v. Perkins, 569 U.S. 383,\n386, 401 (2013) (“stress[ing] that the Schlup standard is demanding”\nand cases satisfying it “rare”). It requires, first, that petitioner adduce\n“new reliable evidence—whether it be exculpatory scientific\nevidence, trustworthy eyewitness accounts, or critical physical\nevidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. at\n324. In addition to being reliable, i.e., credible, the evidence must be\ncompelling. This second requirement demands “evidence of\ninnocence so strong that a court cannot have confidence in the\noutcome of the trial unless the court is also satisfied that the trial was\n\n\n 30\n\nfree of nonharmless constitutional error.” Id. at 316; accord Rivas v.\nFischer, 687 F.3d at 541.21\n\n The standard’s demand for “evidence of innocence,” Schlup v.\nDelo, 513 U.S. at 316 (emphasis added), references “factual innocence,\nnot mere legal insufficiency,” Bousley v. United States, 523 U.S. 614, 624\n(1998); accord Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002); see also\nDoe v. Menefee, 391 F.3d 147, 162 (2d Cir. 2004) (Sotomayor, J.) (“As\nSchlup makes clear, the issue before [the] court is not legal innocence\nbut factual innocence.”). The new evidence need not demonstrate\nfactual innocence to an “absolute certainty.” House v. Bell, 547 F.3d at\n538; accord Rivas v. Fischer, 687 F.3d at 542. But it must be sufficiently\ncredible and compelling to allow a federal court to conclude that\n“more likely than not, in light of the new evidence, no reasonable\njuror would find [petitioner] guilty beyond a reasonable doubt—or,\nto remove the double negative, that more likely than not any\nreasonable juror would have reasonable doubt.” House v. Bell, 547\nU.S. at 538; see Schlup v. Delo, 513 U.S. at 327; Rivas v. Fischer, 687 F.3d\nat 541.\n\n As this court has recognized, this standard is “somewhat\ncryptic” in marrying a seemingly absolute requirement (no\nreasonable juror) to a probabilistic one (more likely than not). Rivas\nv. Fischer, 687 F.3d at 541 (citing Schlup v. Delo, 513 U.S. at 339\n(Rehnquist, C.J., dissenting) (characterizing standard as “classic\nmixing of apples and oranges”)). Nevertheless, this court has located\n\n\n21While this gateway standard is demanding, it is less than what would be required to\nsupport a free‐standing claim of actual innocence. See Schlup v. Delo, 513 U.S. at 316\n(observing, by reference to Herrera v. Collins, 506 U.S. 391, that, assuming actual innocence\nclaim could support Eighth Amendment challenge to capital sentence, “evidence of\ninnocence would have had to be strong enough to make [defendant’s] execution\nconstitutionally intolerable even if his conviction was the product of a fair trial” (emphasis\nin original) (internal quotation marks omitted)).\n\n\n 31\n\nsome guidance for its application in contrasts that the Supreme Court\nhas drawn between the Schlup standard and other familiar ones. See\nid.\n\n Notably, Schlup emphasizes that “actual innocence . . . does not\nmerely require a showing that a reasonable doubt exists in the light\nof the new evidence, but rather that no reasonable juror would have\nfound the defendant guilty.” 513 U.S. at 329. Further, a “more likely\nthan not” showing as to what “no reasonable juror would have\nfound” requires “a stronger showing than that needed to establish\nprejudice,” but not so strong as that demanded by the “‘clear and\nconvincing’ standard.” Id. at 327; see Rivas v. Fischer, 687 F.3d at 541.22\n\n Further, the Court has stressed that Schlup’s actual innocence\nstandard does not equate to the sufficiency‐of‐the‐evidence standard\nin Jackson v. Virginia, 443 U.S. 307, 319 (1979). Jackson asks whether the\ntrial evidence, viewed in the light most favorable to the prosecution,\n“could” allow any reasonable trier of fact to find a charged crime\nproved beyond a reasonable doubt. Id. By contrast, Schlup’s actual\ninnocence standard considers a different “mix of evidence” from a\ndifferent “vantage point.” Rivas v. Fischer, 687 F.3d at 542.\nSpecifically, a reviewing court assessing the probability of actual\ninnocence is not limited to the trial record. To the contrary, it “must\nconsider all the evidence, old and new, incriminating and\nexculpatory,” House v. Bell, 547 U.S. at 538 (internal quotation marks\nomitted), and, in doing so, “is not bound by the rules of admissibility\n\n\n22Compare Strickland v. Washington, 466 U.S. at 694 (holding that, to demonstrate prejudice,\ndefendant must show “reasonable probability that, but for counsel’s unprofessional errors,\nthe result of the proceeding would have been different”), with Sawyer v. Whitley, 505 U.S.\n333, 336 (1992) (holding that petitioner must show “by clear and convincing evidence that,\nbut for a constitutional error, no reasonable juror would have found the petitioner” guilty\n(internal quotation marks omitted)).\n\n\n\n 32\n\nthat would govern at trial,” Schlup v. Delo, 513 U.S. at 327. This is\nbecause, at the gateway stage of inquiry, a habeas court’s task is not\nto identify trial error or to delineate the legal parameters of a possible\nnew trial. It is to identify those cases in which a compelling showing\nof actual innocence would make it a manifest injustice to maintain\nconviction unless it was free of constitutional error. Thus,\nincriminating evidence obtained in the course of an unlawful search,\nor custodial admissions made in the absence of Miranda warnings,\nmay well be inadmissible at trial. Nevertheless, such evidence is\nproperly considered in assessing factual innocence, with the manner\nof procurement informing reliability and relevance and, therefore,\nweight.\n\n The district court concluded otherwise: “all the evidence” does\nnot mean evidence “unquestionably . . . available” to the prosecution\nat the time of trial but “clearly inadmissible” or simply not offered.\nHyman v. Brown, 197 F. Supp. 3d at 454. In support, it cited Schlup’s\nquotation of the factual innocence standard proposed in a law review\narticle by Judge Friendly for all federal habeas review:\n\n The habeas court must make its determination\n concerning the petitioner’s innocence in light of all the\n evidence, including that alleged to have been illegally\n admitted (but with due regard to any unreliability of it)\n and evidence tenably claimed to have been wrongly excluded\n or to have become available only after the trial.\n\nSchlup v. Delo, 513 U.S. at 328 (quoting Henry J. Friendly, Is Innocence\nIrrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV.\n142, 160 (1970)) (emphasis added). The district court construed the\nhighlighted phrase to limit a habeas court’s consideration of evidence\nknown, but not offered, at trial, to evidence that might have been\nwrongfully excluded. See Hyman v. Brown, 197 F. Supp. 3d at 455\n\n\n 33\n\n(explaining why Whitmore’s confession inculpating Hyman, and\nHoward’s out‐of‐court identification of Hyman, should not be\nconsidered in assessing Hyman’s actual innocence claim—although\nconcluding that, even on consideration, the claim succeeded). We\ncannot agree.23\n\n The plain language of the sentence indicates that Judge\nFriendly, and in turn the Supreme Court, were emphasizing the\nabsence of evidentiary limits on actual innocence review by\nexplaining that “all evidence, includ[es]” even evidence illegally\nadmitted at or wrongfully excluded from trial. See, e.g., P.C. Pfeiffer\nCo. v. Ford, 444 U.S. 69, 77 n.7 (1979) (construing “including” to mean\npart of larger group (citing Webster’s New Collegiate Dictionary 581\n(1973))). Indeed, it would make no sense to suggest that an actual\ninnocence assessment could be informed by illegally admitted\nevidence but not by properly excluded evidence. They are opposite\nsides of the same coin and equally probative of actual innocence (or\nguilt). Much less does it make sense to determine actual innocence\nfrom illegally admitted evidence but not from admissible evidence\nthat the prosecution chose not to offer, whether because it seemed\nduplicative of, or simply less persuasive than, evidence now called\ninto question by petitioner’s new evidence.\n\n Nor do we draw—as the district court did—an inference that\nSchlup was limiting its own pronouncement freeing actual innocence\ninquiries from rules of admissibility by following it with the quoted\nlanguage from Judge Friendly. See Hyman v. Brown, 197 F. Supp. 3d\nat 455. In Kuhlmann v. Wilson, a plurality of the Court, after quoting\n\n23As indicated infra at 55, we accord the Whitmore/Howard evidence little weight, except\nto note that it does not support Hyman’s actual innocence claim. We here clarify only that\na court is not barred from considering such evidence because it was properly excluded\nfrom, or available but not offered at, petitioner’s original trial.\n\n\n 34\n\nthe same language from Judge Friendly, followed it with the\nunqualified conclusion that, “[t]hus, the question whether the\nprisoner can make the requisite showing must be determined by\nreference to all probative evidence of guilt or innocence.” 477 U.S. 436,\n455 n.17 (1986) (emphasis added).\n\n Accordingly, we construe the Supreme Court’s actual\ninnocence precedents to mean what they say, i.e., that reviewing\ncourts should assess actual innocence claims in light of “all the\nevidence” regardless of admissibility but with proper consideration\nfor the weight the evidence can bear in light of relevance and\nreliability. See House v. Bell, 547 U.S. at 538; Schlup v. Delo, 513 U.S. at\n328; Kuhlmann v. Wilson, 477 U.S. at 455 n.17.\n\n Nevertheless, a challenge arises in making an actual innocence\nassessment from “all the evidence” because Schlup requires adherence\nto the principle, “firmly established in our legal system,” “that the line\nbetween innocence and guilt is drawn with reference to a reasonable\ndoubt.” Schlup v. Delo, 513 U.S. at 328. Moreover, it is not the court’s\n“independent judgment as to whether reasonable doubt exists” that\nis determinative. Id. at 329. Rather, the court’s task is to “make a\nprobabilistic determination about what reasonable properly\ninstructed jurors would do.” House v. Bell, 547 U.S. at 538 (internal\nquotation marks omitted); accord Rivas v. Fischer, 687 F.3d at 542\n(observing that Jackson’s use of the word “could” focuses inquiry “‘on\nthe power of the trier of fact to reach its conclusion,’” whereas Schlup’s\n“use of the word ‘would’ . . . ‘focuses the inquiry on the likely behavior\nof the trier of fact’” (quoting Schlup v. Delo, 513 U.S. at 330 (emphasis\nadded in Rivas))). Presumably, properly instructed jurors would be\ntold not to consider inadmissible evidence. Nevertheless, given the\nemphasis the Supreme Court has placed on assessing actual\n\n\n\n 35\n\ninnocence claims in light of “all the evidence . . . without regard to . .\n. admissibility,” House v. Bell, 547 U.S. at 538, we do not interpret its\nreference to “properly instructed jurors” as a limitation on the\nevidence to be considered by the court. Rather, we understand the\nphrase to signal that the habeas court should assume the jury has been\nproperly instructed as to the elements of the charged crime and the\nprosecution’s burden of proof when, upon reviewing the totality of\nthe evidence, the court decides whether it is “more likely than not, in\nlight of the new evidence, [that] no reasonable juror would find [the\ndefendant] guilty beyond a reasonable doubt.” Id.; see Schlup v. Delo,\n513 U.S. at 331 (referencing juror “conscientiously following the\njudge’s instructions requiring proof beyond a reasonable doubt” in\nreaching conclusion that no reasonable juror, so instructed, would be\nlikely to vote for guilt if new evidence there adduced were found\nreliable on remand).\n\n Applying these principles here, we conclude that Hyman has\nnot made a gateway showing of actual innocence.\n\nII. Applying the Gateway Standard\n\n A. Respondent’s Unpersuasive Challenges\n\n In applying the gateway standard here, we begin by explaining\nwhy two of respondent’s challenges to the district court judgment do\nnot persuade.\n\n 1. There Are No Categorical Limits on the Types of\n Evidence that Can Support a Claim of Actual\n Innocence\n\n The district court found credible and compelling new evidence\nthat effectively impeached Shaquana Ellis’s trial identification of\n\n\n\n 36\n\nHyman as a participant in the March 10 shootout. At the habeas\nhearing, Ellis herself recanted her trial testimony, admitting under\noath that she did not see the shootout. That admission was\ncorroborated by the sworn testimony or affidavits of six persons.\n\n Respondent argues that, even if credible, impeachment\nevidence cannot be compelling because it does not fall within any of\nthe three categories of “new reliable evidence” identified in Schlup.\n513 U.S. at 324 (stating that petitioner must present “new reliable\nevidence—whether it be [1] exculpatory scientific evidence, [2]\ntrustworthy eyewitness accounts, or [3] critical physical evidence”).\nRespondent’s argument is defeated by House v. Bell, which instructs\nthat Schlup’s list is illustrative, not exhaustive. See 547 U.S. at 537\n(quoting Schlup list, but observing that “habeas court’s analysis is not\nlimited to such evidence”); accord Munchinski v. Wilson, 694 F.3d 308,\n338 (3d Cir. 2012) (observing that Schlup’s list is not exhaustive of\nevidence that can be reliable); Wolfe v. Johnson, 565 F.3d 140, 164 n.32\n(4th Cir. 2009) (same); Souter v. Jones, 395 F.3d 577, 593 n.8 (6th Cir.\n2005) (same).\n\n Thus, we conclude that while certain evidence may bear more\nweight than other evidence in demonstrating factual innocence, there\nare no categorical limits on the types of evidence that can be offered\nto do so.\n\n 2. The District Court Did Not Clearly Err in Finding\n Ellis’s Recantation Credible\n\n Alternatively, respondent faults the district court for finding\nEllis’s recantation credible. We review a district court’s credibility\nassessment of witnesses who testify before it only for clear error. See\nDoe v. Menefee, 391 F.3d at 163–64. Nevertheless, when, as here, a\nwitness is recanting prior sworn testimony supporting a conviction,\n\n 37\n\nwe expect district courts to look upon the recantation “with the\nutmost suspicion.” Haouari v. United States, 510 F.3d 350, 353 (2d Cir.\n2007). The district court should consider not only the recantation, but\nthe motives that may have prompted it, the timing of the submission,\nany possible motive for the original testimony, any inconsistencies in\nthe witness’s account or between that account and other evidence, the\nplausibility or implausibility of inferences or assumptions that\ncrediting the recantation would require, as well as all other factors\ngenerally considered in assessing witness credibility. See generally Doe\nv. Menefee, 391 F.3d at 164–65.\n\n Here, respondent argues that the credibility of Ellis’s\nrecantation is suspect because her hearing testimony was compelled\nby federal subpoena, following her earlier refusal to provide a sworn\nstatement. These circumstances warrant consideration in assessing\nEllis’s credibility, but they do not preclude a finding that her\nrecantation is credible. So too the fact that Ellis’s hearing testimony\nwas given under a grant of immunity from prosecution for perjury in\nher trial testimony. The grant did not absolve Ellis of the duty to\ntestify truthfully at the habeas hearing. Thus, this circumstance was\nalso properly considered in determining credibility, but it did not\ncompel a finding that Ellis’s recantation was not credible.\n\n As the record shows, the district court well understood these\ncircumstances and others pertinent to Ellis’s credibility. It did not\nhesitate to identify implausibilities and inconsistencies in Ellis’s\ntestimony. At the same time, the district court observed that Ellis’s\nrecantation was not recent; she had maintained it for more than a\ndecade in speaking with various persons. The district court also\nnoted respondent’s failure to point to any motive Ellis might have for\nfalsely recanting her trial testimony. In weighing the totality of these\n\n\n\n 38\n\ncircumstances, the district court had a unique advantage unavailable\nto this court: it heard directly from Ellis and observed her demeanor\nas her recantation was offered on direct examination and tested on\ncross‐examination. See id. at 164 (recognizing that “district courts are\ngenerally best placed to evaluate testimony in light of the witnesses’\ndemeanor”); Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003)\n(recognizing “factfinder’s unique ability to assess the witness” in\nmaking credibility determination).\n\n Further, the district court heard testimony or reviewed\naffidavits from various persons who reported either that they did not\nwitness the shootout with Ellis, as she testified at trial, or had heard\nher subsequently admit to not seeing the shootout. The district court\nconducted a thorough hearing to develop this evidence, proceeded\ncarefully to assess the extent to which it corroborated or undermined\nEllis’s own account, and ultimately concluded that Ellis’s recantation\nand the corroboration supporting it were credible—but only in part.\n\n Specifically, the district court credited Ellis’s recantation on the\nnarrow point that she did not see the March 10 shootout and,\ntherefore, could not identify Hyman as a shooting participant.\nOtherwise, the district court found Ellis to be a “facile liar” in\nexplaining both her motives for testifying falsely at trial and her\nactual whereabouts at the time of the shootout. Hyman v. Brown, 197\nF. Supp. 3d at 461. Similarly, as to corroborating witness Benitez, the\ndistrict court credited only her testimony that she and Ellis were not\nin the third‐floor hallway of 1540 Hassock Street at the time of the\nMarch 10 shootout and, thus, not in a position to see what occurred.\nIt found implausible Benitez’s explanation for telling the police\notherwise and problematic her inconsistent accounts of the night’s\nevents.\n\n\n\n 39\n\n We are satisfied that the district court viewed Ellis’s recantation\nwith the appropriate high level of skepticism. But just as the law\npermits a factfinder who identifies falsity in part of a witness’s\ntestimony to discredit the whole, see, e.g., Siewe v. Gonzales, 480 F.3d\n160, 170 (2d Cir. 2007) (referencing maxim falsus in uno, falsus in\nomnibus), it also affords a factfinder discretion to credit parts of a\nwitness’s testimony despite discrediting others, see, e.g., United States\nv. Norman, 776 F.3d 67, 78 (2d Cir. 2015) (stating that factfinder is “free\nto believe all, some, or none of a witness’s testimony” (internal\nquotation marks omitted)). On this record of careful evidentiary\nreview and discernment by the district court, we identify no clear\nerror in its decision to credit that part of Hyman’s new evidence\nindicating that Ellis did not see the March 10 shootout and, thus,\ncould not identify him as a shooting participant. We defer to that\nfinding in now assessing whether such credible new evidence made\na compelling showing of actual innocence.\n\n B. Hyman Fails To Show Actual Innocence\n\n The fact that new evidence is credible does not necessarily\nmake it compelling under the Schlup standard for actual innocence.\nPrecisely because the gateway standard for actual innocence is\ndemanding and rarely met, in applying it to Hyman’s claim, we begin\nby considering circumstances in which courts have found it satisfied.\nSee Rivas v. Fischer, 687 F.3d at 543 (being “guided by Supreme Court’s\napplication of [Schlup] standard in House [v. Bell]” in assessing Rivas’s\nclaim of actual innocence).\n\n\n\n\n 40\n\n 1. Precedents Identifying Compelling Showings of\n Actual Innocence\n\n a. Schlup v. Delo\n\n In Schlup, petitioner was convicted of murder based largely on\nthe testimony of two corrections officers who identified him as one of\nthree white prisoners who attacked a black inmate and stabbed him\nto death. Schlup sought federal habeas relief, maintaining his\ninnocence and arguing that trial counsel had been constitutionally\nineffective in failing to interview and call exculpatory witnesses. See\nSchlup v. Delo, 513 U.S. at 306–07. In remanding the case for\napplication of a more‐likely‐than‐not, rather than clear‐and‐\nconvincing, standard of actual innocence, see id. at 327, the Supreme\nCourt highlighted the following new evidence: (1) sworn affidavits\nfrom inmate eyewitnesses to the murder stating that Schlup was not\npresent for the crime and implicating other inmates by name;24 (2) the\nsworn affidavit of a former prison lieutenant reporting a disciplinary\ninteraction with Schlup at and about the time of the killing, which cast\ndoubt on Schlup’s ability thereafter to have participated in the\nmurder and still arrived at the prison dining room 65 seconds before\nthe distress call prompted by the stabbing, as confirmed by a prison\nvideotape; and (3) the affidavit of an inmate‐clerk stating that there\nwas no delay between the stabbing and his placing the distress call,\nand identifying the three men who assaulted the victim as persons\nother than Schlup, see id. at 331.\n\n The Court acknowledged that this new evidence might be\ndeemed “unreliable” at an actual innocence hearing on remand. Id.\n\n24While the district court had considered these affidavits suspect, see Schlup v. Delo, 513\nU.S. at 309 n.19, the Supreme Court deemed it noteworthy that it was “black inmates\nattesting to the innocence of a white defendant in a racially motivated killing,” id. at 316.\n\n\n\n 41\n\nNevertheless, it observed that if the evidence were found credible, it\nwas sufficiently compelling to warrant relief. See id.\n\n b. House v. Bell\n\n The House petitioner was convicted of murdering a woman in\nthe course of what prosecutors contended was a sexual assault.\nCentral to the state’s largely circumstantial case were forensic\nfindings that House’s semen was present on the dead woman’s\nclothing and her blood was present on House’s clothing. In claiming\nactual innocence, House produced new test results undermining both\nconclusions. Based on this evidence, prosecutors themselves\nadmitted that the semen at issue was from the victim’s husband, not\nHouse. See House v. Bell, 547 U.S. at 540. As for minute quantities of\nthe victim’s blood on House’s clothes, new evidence prompted even\nthe state’s Assistant Chief Medical Examiner to acknowledge that the\nblood likely got on House’s pants, not during the murder, but while\nthe pants were in police custody and came into contact with\nmishandled autopsy samples of the victim’s blood. See id. at 547.\nNevertheless, the Supreme Court observed that the new forensic\nevidence would not, by itself, have allowed petitioner to pass through\nthe actual innocence gateway. See id. at 548. What tipped the balance\nwas further new evidence pointing to the victim’s husband as her\nmurderer.\n\n Most important, in the Court’s view, was testimony from two\nsisters who stated that, at a gathering at their home after the murder\nat which the victim’s husband was drinking heavily, they heard him\n“rambling” about his wife’s death, “crying,” and saying he had\n\n\n\n\n 42\n\n“slapped” her, causing her to “hit her head and it killed her,” but “he\ndidn’t mean to do it.” Id. at 549–50.25\n\n At the habeas hearing, the husband denied killing his wife or\nconfessing to doing so, and the district court “did not question his\ncredibility.” Id. at 552. Nevertheless, the Supreme Court noted that\nthe husband’s hearing account of his whereabouts on the night of the\ncrime and his denial to ever striking his wife were both impeached by\nother evidence, in the latter case by the state itself. See id.\n\n The Court thus characterized House’s actual innocence claim\nas a “close” one. Id. at 554; see also id. at 553–54 (cataloguing evidence\nthat might “still support an inference of guilt”). Nevertheless,\nbecause “the central forensic proof connecting House to the crime—\nthe blood and the semen—has been called into question, and House\nhas put forward substantial evidence pointing to a different suspect,”\ni.e., the victim’s husband, the Court concluded that House had carried\nhis Schlup burden because “had the jury heard all the conflicting\ntestimony—it is more likely than not that no reasonable juror viewing\nthe record as a whole would lack reasonable doubt.” Id. at 554.\n\n c. Rivas v. Fischer\n\n Finally, in Rivas v. Fischer, a case in which this court ruled that\na Schlup showing of actual innocence could excuse an untimely\nhabeas petition, see 687 F.3d at 550, we found petitioner to have\ncarried that burden through new, “largely unchallenged—expert\n\n25The Supreme Court distinguished the sisters’ testimony from an “eleventh‐hour affidavit\nvouching for a defendant and incriminating a conveniently absent suspect.” House v. Bell,\n547 U.S. at 552. “The confession evidence here involves an alleged spontaneous statement\nrecounted by two eyewitnesses with no evident motive to lie. For this reason it has more\nprobative value than, for example, incriminating testimony from inmates, suspects, or\nfriends or relations of the accused.” Id.\n\n\n\n 43\n\ntestimony, which cast considerable doubt on the ‘central forensic\nproof’ connecting him” to the murder of his former girlfriend, id. at\n547. That proof was the medical examiner’s opinion as to the time of\ndeath. In 1987, he estimated that the victim had died sometime\nbetween Saturday afternoon March 28, 1987, and early Sunday\nmorning, March 29, 1987. Because Rivas had a “complete” and\n“unchallenged” alibi for that time span, id. at 524, 543, the state “had\nno case” against him unless it could prove that the victim died earlier\nin the weekend, id. at 525. More than five years after the killing, the\nstate decided it could make that showing. Although no further\nevidence had developed, a new district attorney asked the medical\nexaminer to review his case file again, whereupon the examiner\nrevised his opinion to conclude that the victim’s death “more likely”\noccurred sometime “Friday night,” March 27, 1987, or “very early\nSaturday morning.” Id. at 524.\n\n To support his actual innocence claim, Rivas offered new\ncontrary evidence from a distinguished forensic pathologist, who\ntestified with a “reasonable degree of medical certainty” that the\ncondition of the victim’s body when examined by the medical\nexaminer at 3:30 p.m. on Monday, March 30, 1987—in “full rigor” and\nwithout “discoloration around the abdominal wall”—meant that her\n“death could not have occurred longer than 48 hours prior to the\ntime” of examination, i.e., could not have happened earlier than 3:30\np.m. on Saturday, March 28. Id. at 531 (internal quotation marks\nomitted). The state mounted no “serious challenge” to the expert’s\n“credibility or expertise.” Id. at 544. Moreover, it conceded that when\nthe medical examiner revised his time‐of‐death estimate, he was\nunder investigation for professional misconduct and, in November\n1993, resigned his office, in part, to avoid criminal prosecution. See id.\nat 521. On this record, this court concluded that “any reasonable juror\n\n\n 44\n\nwould almost certainly credit” “the essentially unchallenged\ntestimony of a respected forensic pathologist” as “against the word of\na disgraced medical examiner,” and “would therefore, more likely\nthan not, harbor a reasonable doubt about Rivas’s guilt.” Id. at 543,\n546.26 At the same time, the court characterized the case as “close,”\nnoting that it “would not expect a lesser showing of actual innocence\nto satisfy the Schlup standard.” Id. at 546.\n\n 2. Hyman’s Credible New Evidence Does Not Make\n the Compelling Showing of Actual Innocence\n Required by Schlup\n\n With the benefit of these precedents, we apply the Schlup\nstandard here and conclude that Hyman’s new evidence, even if\ncredible, is not sufficiently compelling as to his actual innocence to\nmake it more likely than not that “no reasonable juror,” aware of the\nnew evidence, would return a guilty verdict on the charged crimes.\nSchlup v. Delo, 569 U.S. at 329 (internal quotation marks omitted). This\nis evident from (a) the substance of the evidence itself, (b) its\ncomparison to precedent, and (c) the totality of the evidence.\n\n a. Substance\n\n Plainly, the substance of credible new evidence will bear on\nhow compellingly it demonstrates actual innocence. The new\nevidence established that Ellis did not see the March 10 shootout and,\n\n\n26The court noted further new circumstantial evidence—“new” because not disclosed by\nthe prosecution to the defense at trial—that was, at least, consistent with the victim dying\non Saturday night: (1) an identified neighbor of the victim swore in an affidavit that, while\nwatching “Saturday Night Live” late on Saturday night March 28, she had heard a\n“woman’s voice,” “shriek or scream,” “like someone was in trouble and not like anyone\nkidding around,” Rivas v. Fischer, 687 F.3d at 529 (internal quotation marks omitted); and\n(2) an unidentified neighbor reported hearing a dog barking and a car speeding away from\nthe vicinity of the victim’s home around 11:00 p.m. on Saturday night.\n\n\n\n 45\n\nthus, lied in identifying Hyman as a participant. That is quite\ndifferent from new evidence that an eyewitness to a crime falsely\nidentified a person other than the one she actually saw commit it. Such\na false identification can bear on actual innocence because it is more\nlikely than not that an accused did not commit a crime if someone else\nin fact did. But no such conclusion obtains in the circumstance here.\nEllis’s failure to see the shootout means she cannot inculpate\npetitioner (or anyone else), but neither can she exonerate him. She\nsimply has no eyewitness evidence bearing on either petitioner’s guilt\nor his innocence. Whatever question that might raise as to the\nsufficiency of the prosecution’s case absent Ellis’s testimony, it does\nnot indicate Hyman’s likely innocence, much less do so compellingly.\nSee Bousley v. United States, 523 U.S. at 623 (distinguishing factual\ninnocence from “legal insufficiency”); accord Dunham v. Travis, 313\nF.3d at 730.\n\n b. Precedent Comparison\n\n The failure of Hyman’s new evidence to make a compelling\nshowing of innocence is further demonstrated by a comparison to\nSchlup, House, and Rivas. In each of these cases, the new evidence\ndirectly supported petitioner’s factual innocence by indicating either\nthat he did not commit, or could not have committed, the crimes of\nconviction.\n\n In Schlup, inmate‐eyewitnesses to a prison stabbing swore that\npetitioner was not one of the three (identified) men whom they saw\nparticipate in that crime. If credible, this new evidence indicated that\npetitioner did not commit the crime. Further, in Schlup, a former police\nlieutenant swore that he was disciplining petitioner at about the time\nof the stabbing. Such new evidence indicated that petitioner could not\nhave committed the crime within the time between the discipline\n\n\n 46\n\nencounter and his arrival in the prison dining room as indicated on a\ntimed prison video recording.\n\n In House, credible new tests of forensic evidence used to\nidentify petitioner at trial as the murderer discredited those\nidentifications. Further, two witnesses credibly testified to hearing\nthe victim’s husband admit to killing his wife. Such evidence\nindicated that the petitioner did not kill the victim, because her\nhusband had.\n\n Finally, in Rivas, credible new forensic evidence showed that\nthe victim died, not at the time reported by a discredited medical\nexaminer, but at a later time for which petitioner had an unchallenged\nalibi. Thus, the new forensic evidence together with the alibi\nindicated that petitioner could not have committed the murder at\nissue.\n\n Although the evidence in both House and Rivas was thus found\ncredibly to show that petitioner likely did not commit, or could not\nhave committed, the crimes of conviction, the courts characterized the\ngateway showing in each case as “close.” House v. Bell, 547 U.S. at 554;\nRivas v. Fischer, 687 F.3d at 546. Indeed, in Rivas, this court observed\nthat it “would not expect a lesser showing of actual innocence” than\nthat made there “to satisfy the Schlup standard.” 687 F.3d at 546.\n\n The new evidence here makes a far “lesser showing” of actual\ninnocence than that in Rivas, House, or Schlup. Evidence that Ellis\nfailed to see the March 10 shootout leaves the trial record with no\neyewitness identification of Hyman as the person firing a gun from\nthe green Mazda. But the absence of such evidence does not mean\nthat Hyman did not, or could not, have participated in the shootout.\nIt means only that Ellis does not know who, if anyone, did. This is\n\n\n 47\n\nnot to foreclose the possibility that, in some circumstances, a recanted\nidentification based on an admitted lack of knowledge, might so\n“thoroughly undermine[] the evidence supporting the jury’s verdict”\nas to support the probability determination required by Schlup. Id. at\n543; see also House v. Bell, 547 U.S. at 553–54. We conclude only that\nthis is not such a case. To explain, we proceed to review the totality\nof the evidence.\n\n c. Totality of the Evidence\n\n The district court concluded that without Ellis’s identification,\nthe prosecution effectively had no case against Hyman. See Hyman v.\nBrown, 197 F. Supp. 3d at 462–63. The totality of the evidence shows\notherwise.\n\n i. Hyman Places Himself at the Shootout\n in the Green Mazda\n\n To explain, Ellis’s trial testimony can be understood to consist\nof two parts: (1) she saw Hyman at the scene of the shootout parked\noutside 1540 Hassock Street in a green Mazda, and (2) she saw Hyman\nfiring a gun from the car’s passenger window. Ellis did not recant the\nfirst statement. At the habeas hearing, she maintained that on March\n10, 2000, she saw Hyman pull up to 1540 Hassock Street in a green\ncar. When she heard gunshots, she ran inside without seeing who\nwas doing the shooting. See supra at 20. But even if Ellis had recanted\nthe first part of her trial testimony, that would not help Hyman\nbecause he does not dispute his presence at the shootout. The jury\nheard his statements to the police and grand jury admitting that, at\nthe time of the shootout, he was indeed double‐parked outside 1540\nHassock Street, alone, in his green Mazda. Moreover, Hyman\nacknowledged that he was not coincidentally caught up in the\n\n\n\n 48\n\nshootout; he professed to be its unarmed target.27 In light of these\nadmissions, the singular focus of Hyman’s actual innocence claim is\nthe second part of Ellis’s testimony. Is it more likely than not that,\nupon learning that Ellis did not see Hyman firing a gun during the\nMarch 10 shootout—because she did not see the shootout at all—no\nreasonable juror would find him guilty beyond a reasonable doubt of\nthe charged crimes? See Schlup v. Delo, 569 U.S. at 329. The totality of\nthe record does not admit that conclusion.\n\n ii. Eyewitnesses See Gunfire From Vicinity\n of Hyman’s Car\n\n Ellis’s recantation shows that she had no probative evidence as\nto whether Hyman fired a gun during the shootout. But not so other\neyewitnesses. Three residents of the area testified at trial to seeing\nflashes of gunfire coming from a green (or dark) car or its occupant\nduring the shootout. Each witness identified the car as resembling\nHyman’s green Mazda.\n\n Margaret Contreras testified that, as she was trying to move the\nfatally wounded Maria Medina from the lobby of 1540 Hassock Street\nto the relative safety of an elevator, she saw flashes of gunfire coming\nfrom the passenger window of a dark green car. See supra at 9. Lynn\nBurton testified that, upon hearing gunfire, she looked out a window\nof her third‐floor apartment at 1540 Hassock Street and saw “shots\nbeing fired” from both a red car and the dark car parked behind it,\nwhich she described as “fire coming out of a window.” Trial Tr. at\n\n\n27Because Hyman did not testify at trial or at the habeas hearing, his ambush claim was\nnot tested by cross‐examination. Nevertheless, he himself cast doubt on his credibility by\ninitially lying to police about driving to Hassock Street in a red Acura rather than the green\nMazda that he knew was pocked with bullet marks. See, e.g., United States v. Glenn, 312\nF.3d 58, 69 (2d Cir. 2002) (observing that defendant’s “false exculpatory statements to law\nenforcement officials may be circumstantial evidence of consciousness of guilt”).\n\n\n 49\n\n1628. Deborah McCoy, who lived across from 1540 Hassock Street,\ntestified that, after hearing gunfire, she looked out the kitchen\nwindow of her apartment and saw a man she recognized as Osimba\nRabsatt firing a gun from near a red car, while another man, whom\nshe did not know, got out of a dark car parked behind the red one,\nfired a gun, and then got back in the car. See supra at 10–11.\n\n The fact that none of these women could identify the occupant\nof the green car is of no import because Hyman himself provided that\nevidence. He stated that he was the sole occupant of the green Mazda\nthat was involved in the shootout. What is significant about these\nthree women’s testimony, then, is that each of them—viewing the\nshootout separately and from different vantage points—reported\nseeing gunfire coming from that car or its occupant. None testified to\nseeing the car ambushed.\n\n Insofar as the witnesses’ recollections differed on certain\npoints—e.g., the exact color of the car, whether its occupant fired from\ninside or outside the car—these differences are not a product of Ellis’s\nrecantation. Rather, they were known to the trial jury, which\nnevertheless voted to convict. Even with new evidence that Ellis had\nnot seen the shootout, a reasonable juror would more likely than not\nattribute any car‐color confusion among other witnesses to the limited\nlight available at 7:00 p.m. in March for distinguishing among dark\ncolors. As for whether Hyman fired some shots from inside or outside\nhis car—or from both—a reasonable juror would more likely than not\nconclude that it was not necessary to resolve differences on this point\nbecause, in any event, the eyewitnesses all testified to seeing flashes\nof gunfire coming from the direction of the green car, not only at the\n\n\n\n\n 50\n\ncar as Hyman told police in claiming to have been ambushed.28 In\nlight of consistent eyewitness testimony on this point, and Hyman’s\nown admissions to being the sole occupant of the green car, Ellis’s\nrecantation of her gunfire sighting (based on a failure to see the\nshootout at all) would not likely preclude any reasonable juror from\nfinding Hyman’s guilt proved beyond a reasonable doubt.\n\n In concluding otherwise, the district court reasoned that Ellis’s\nrecantation might heighten juror skepticism about Contreras’s,\nBurton’s, and McCoy’s testimony because these women, like Ellis,\nhad relationships with Whitmore or members of his family, providing\na motive for them to testify in his favor. The district court thought\nsuch bias was evident in Contreras’s belated trial disclosure that she\nsaw Whitmore enter 1540 Hassock Street carrying a gun. While that\nbelated disclosure—known to the trial jury—could certainly inform\nan assessment of Contreras’s credibility, in the end, it is not likely that\nEllis’s recantation would make every reasonable juror reject\nContreras’s testimony.\n\n To begin, it hardly appears likely that Contreras delayed\nreporting Whitmore’s March 10 gun possession to shield him from\npolice suspicion. After all, on the day after the shootout, March 11,\n2000, Whitmore himself told police that he had been in possession of\na gun, firing an entire seven‐shot clip at Hyman during the gunfight.\nWhitmore simply attempted to minimize his culpability by saying\n\n28There is some non‐trial evidentiary support for Hyman shooting from outside as well as\ninside a car. The Howard statement summarized supra at 25–26, identifies Hyman as one\nof two shooters exiting the red Acura. And a police report summarizing interviews with\n1540 Hassock Street residents indicates that, although most did not see the shooting, third‐\nfloor resident Tiffany Weeks stated that she saw two black males exit a red Acura and a\ngreen Mazda, fire guns, and then speed away. In sum, even without Ellis, five\neyewitnesses (six with Whitmore) reported seeing gunfire coming from, not only at, the\nparked cars. No person interviewed reported seeing an ambush of the cars.\n\n\n\n 51\n\nthat he acted defensively rather than offensively. The fact that\nContreras had seen Whitmore with a gun at the conclusion of the\nMarch 10 shootout did nothing to support or undermine Whitmore’s\ndefensive version of events. In any event, when questioned at trial,\nContreras admitted seeing Whitmore. This makes it more, not less,\nlikely that she would not lie under oath, whether about seeing\nWhitmore, seeing gun flashes, or any other part of her testimony.\n\n Burton’s gunfire sighting also sheds no light on who was the\naggressor in the gunfire exchange.\n\n As for McCoy, she testified that she “first” saw gunfire coming\nfrom occupants of the parked cars. Trial Tr. at 1813. But the statement\nmust be considered in context. The gunshots McCoy first saw\nfollowed the gunshots she heard, which is what prompted her to go\nto the window. In short, when McCoy went to the window, the\nshootout was already underway. Thus, her testimony also did not\nidentify either side in the shootout as the aggressor. Moreover, it\nhardly appears more likely than not that McCoy’s mutual godmother\nrelationship with members of Whitmore’s family prompted her to\nshade testimony in his favor. She is the one trial witness who, on\ndirect examination, specifically identified Whitmore as one of the\nMarch 10 shooters. Meanwhile, she did not identify Hyman. At trial,\nall she could state was that she saw gunfire coming from a red car and\na dark car. While she identified Rabsatt as the driver of the red car,\nMcCoy could not identify the driver of the dark car. It is Hyman’s\nown statements that, even after Ellis’s recantation, identify him as the\nsole occupant of that car.\n\n\n\n\n 52\n\n iii. Ballistic Evidence Indicates a Gunfire\n Exchange, not an Ambush\n\n Ballistic evidence makes it unlikely that any reasonable juror\nwould reject eyewitness testimony about seeing flashes of gunfire\ncoming from Hyman’s car. Notably, .45 caliber and 9mm shell\ncasings were retrieved from the middle of Hassock Street, which was\nright about where they would have been discharged from guns fired\nfrom the passenger side window of a car double‐parked across from\n1540 Hassock Street, where Hyman placed his own car. Meanwhile,\n.380 caliber shell casings recovered from the walkway bordering 1540\nHassock Street were consistent with guns fired from that area toward\nthe car, as Whitmore himself admitted. In short, the casings retrievals\nindicated gunshots fired both from and at the green car, not an\nambush of the green car’s unarmed occupant.29\n\n As noted supra at 13, the guns that discharged the .45 caliber\nand 9mm casings retrieved from the middle of Hassock Street were\nthemselves recovered from the wheel well of Whitmore’s car. If\nHyman fired one of the guns that discharged some of these casings, it\nis curious that the gun would wind up in Whitmore’s car. The record\noffers no satisfactory explanation. At trial, the prosecution suggested\nthat someone planted the guns in Whitmore’s car to deflect blame\n\n\n29At the habeas hearing, respondent stated that the ballistic evidence was not “probative\nas to . . . the defendant’s participation.” Habeas Hearing Tr. at 45. We construe this to\nconcede that the ballistic evidence could not specifically identify Hyman as the person\nresponsible for particular ballistic evidence. We do not construe it as a concession that the\nballistic evidence was irrelevant to the chain of circumstances establishing Hyman’s guilt,\nmuch less to Hyman’s ability to make a compelling showing of actual innocence. Indeed,\nin the sentence following the “participation” statement, respondent noted the recovery of\n“several rounds of shells . . . or ballistics from the car [Hyman] was purportedly driving at\nthe time.” Id. As noted in text, spent shells would indicate shots fired from the general\nlocation where they were retrieved, i.e., the parked green Mazda, while bullet marks on\nthat car would indicate shots fired toward it. In sum, the ballistic evidence provides strong\ncircumstantial evidence of a gunfire exchange, not an ambush.\n\n\n 53\n\nfrom Hyman and Rabsatt. The hypothesis is pure speculation.\nNevertheless, it was argued to the jury at Hyman’s trial, which either\naccepted it or, more likely, did not find it necessary to resolve to\nconclude that guilt was established beyond a reasonable doubt. The\nimportant point for purposes of actual innocence is that Ellis’s\nrecantation neither simplifies nor complicates the puzzle.\nAccordingly, we do not think it more likely than not that, with the\naddition of Ellis’s recantation to the gun‐location puzzle, no\nreasonable juror would find Hyman guilty beyond a reasonable\ndoubt based on the totality of other evidence.\n\n The conclusion finds further support in ballistic evidence\nrecovered from the 1540 Hassock Street building. The height of bullet\nholes in the lobby door was consistent with gunshots fired toward the\nbuilding from a relatively low position, such as the open window of\na parked car, as Contreras and Burton witnessed. That the Mazda’s\nwindow was open during the shootout was confirmed by shattered\nglass inside the passenger door window track. The window did not\n“pop” in Hyman’s face, as he told police in trying to support his\nambush story. See United States v. Glenn, 312 F.3d 58, 69 (2d Cir. 2002).\n\n Indeed, for bullets entering 1540 Hassock Street—including the\nbullet killing Ms. Medina—to have come from persons firing at the\ngreen Mazda as Hyman asserted, rather than from it as eyewitnesses\ntestified, one or more shooters would have had to have been firing\ntoward the car’s driver’s side. Hyman told police he was shot at from\nboth sides of his car. See supra at 8. But that account is convincingly\nbelied by the complete lack of bullet marks on the Mazda’s driver’s\nside. Nor were there bullet marks on the car’s rear to support\nHyman’s story that the men who ambushed him first fired from that\ndirection.\n\n\n\n 54\n\n In sum, the totality of ballistic evidence indicates a gunfire\nexchange on March 10, not a one‐sided ambush.\n\n As for other evidence, not admitted at trial—such as the\nWhitmore, Howard, and Tiffany Weeks statements—we do not here\nassume a reasonable juror’s likely reliance on those statements in\nfinding Hyman guilty. We note only that the statements do not\nsupport his claim of actual innocence.\n\n Any trial perjury is a serious matter and nothing mitigates\nEllis’s willingness to lie under oath—a willingness she appeared to\nmaintain, at least in part, even at the habeas hearing. Nevertheless,\nwhere, as here, a witness recants a trial identification, not because the\nwitness knows the accused not to be the person firing a gun during a\nshootout, but because the witness did not see the shootout at all, that\nnew evidence is far less compelling in demonstrating actual\ninnocence than that in Schlup, House, and Rivas. In light of petitioner’s\nown admission that he was the sole occupant of the green car that was\nthe focal point of the shootout; three eyewitnesses’ testimony to\nseeing flashes of gunfire coming from that car or its occupant; and\nballistic evidence indicating that bullets were fired from, not just at,\nthe car, we cannot conclude that, upon learning of the Ellis\nrecantation, it is more likely than not that “no reasonable juror”\nwould still find Hyman guilty beyond a reasonable doubt of the\ncharged crimes.\n\n Accordingly, we conclude that Hyman has not made the actual\ninnocence showing necessary to pass through the narrow gateway for\n\n\n\n\n 55\n\nfederal habeas review of his procedurally barred Sixth Amendment\nclaim.30\n\n CONCLUSION\n\n To summarize, we conclude:\n\n 1. There are no categorical limits on the types of evidence that\n can be offered to demonstrate actual innocence and, thus,\n the district court did not err in considering impeachment\n evidence.\n\n\n\n30Because Hyman did not carry his gateway burden, the district court should not have\ndecided—and we need not review—his barred Sixth Amendment claim. We, nevertheless,\nnote that the merits of that claim are not apparent.\n\nFirst, it is not clearly established by Supreme Court precedent that a fee dispute between a\ndefense attorney and a potential witness gives rise to an “actual conflict” of interest that\nallows a petitioner to claim ineffective assistance of counsel without showing prejudice. In\nCuyler v. Sullivan, 446 U.S. 335, 349–50 (1980), the Court recognized multiple concurrent\nrepresentations to give rise to an actual conflict, but in Mickins v. Taylor, 535 U.S. 162 (2002),\nit cautioned against an “expansive application” of Sullivan to such circumstances as when\n“representation of the defendant somehow implicates counsel’s personal financial\ninterests,” Mickins v. Taylor, 535 U.S. at 174–75. In Tueros v. Greiner, 343 F.3d 587 (2d Cir.\n2003), this court stated that “we must look to Sullivan, not . . . Mickens” for “‘clearly\nestablished Federal law,’” id. at 593. Nevertheless, we have since expressly relied on\nMickens in refusing to extend Sullivan to circumstances involving an attorney’s ethical\nobligation to correct false testimony. See Torres v. Donnelly, 554 F.3d 322, 326 (2d Cir. 2009).\nThus, no clearly established Supreme Court precedent establishes an actual conflict of\ninterest here.\n\nSecond, even if the circumstances indicated such a conflict, Hyman would have to show\nthat it “‘adversely affected his lawyer’s performance.’” Strickland v. Washington, 466 U.S.\nat 692 (quoting Cuyler v. Sullivan, 446 U.S. at 350). The state court found that Hyman failed\nto do so because the Hinkson and Sanders affidavits allowed only speculation as to why\ntrial counsel had not called Hinkson. The conclusion cannot be deemed an unreasonable\napplication of clearly established law because Hinkson’s own photographs seem to refute,\nrather than support, his opinion that it was impossible to see the shootout from the third‐\nfloor hallway window of 1540 Hassock Street. In these circumstances, the decision to\nforego calling a particular witness is generally a matter of strategy falling within the wide\nrange of reasonable professional assistance. See Greiner v. Wells, 417 F.3d 305, 323 (2d Cir.\n2005); see also Bell v. Cone, 535 U.S. 685, 701–02 (2002).\n\n\n 56\n\n2. The district court did not clearly err in finding some of the\n new evidence Hyman offered to support his actual\n innocence claim credible.\n\n3. Even deferring to that credibility finding, however, on de\n novo review, we conclude that Hyman has not made the\n compelling showing of actual innocence necessary for\n merits review of his procedurally barred Sixth Amendment\n claim.\n\n a. The credible new evidence showed only that a\n recanting trial witness did not view the shootout at\n issue in the charged crimes, not that Hyman did not\n or could not have committed those crimes as\n indicated by new evidence found compelling in\n Schlup, House, and Rivas.\n\n b. The totality of the evidence nevertheless showed:\n\n i. Hyman’s admitted presence at the crime scene\n as the sole occupant of the dark green car that\n was the focus of the shootout,\n\n ii. Three eyewitnesses, viewing the shootout from\n difference vantage points, each saw gunshots\n fired from the direction of that car,\n\n iii. Ballistic evidence strongly corroborates that\n gunshots were fired from, not only at, Hyman’s\n car, and\n\n iv. No evidence (except for Hyman’s own self‐\n serving account) supports his ambush claim.\n\n\n\n 57\n\n On this record, we cannot conclude that, upon learning of the\nrecanted trial identification by a witness who had not seen the\nshootout, it is more likely than not that no reasonable juror would find\nHyman guilty beyond a reasonable doubt.\n\n Accordingly, the judgment of the district court is REVERSED\nand the petition for a writ of habeas corpus is DISMISSED.\n\n\n\n\n 58\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Tullie HYMAN, Petitioner-Appellee, v. William D. BROWN, Superintendent, Respondent-Appellant\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-06-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\n16‐2723‐pr\\nHyman v. Brown\\n\\n\\n In the\\n United States Court of Appeals\\n for the Second Circuit\\n\\n\\n AUGUST TERM 2017\\n\\n No. 16‐2723‐pr\\n\\n TULLIE HYMAN,\\n Petitioner‐Appellee,\\n\\n v.\\n\\n WILLIAM D. BROWN, Superintendent,\\n Respondent‐Appellant,\\n\\n\\n\\n On Appeal from the United States District Court\\n for the Eastern District of New York\\n\\n\\n\\n ARGUED: NOVEMBER 29, 2017\\n DECIDED: JUNE 24, 2019\\n\\n\\n\\nBefore: JACOBS, RAGGI, and DRONEY, Circuit Judges.\\n ________________\\n\\n\\n On appeal from a judgment of the United States District Court\\nfor the Eastern District of New York (Dearie, J.) granting habeas\\ncorpus relief from a state murder conviction, see 28 U.S.C. § 2254,\\nrespondent challenges the district court’s determinations that (1)\\npetitioner made the gateway showing of actual innocence necessary\\n\\nfor merits review of his procedurally barred claim of ineffective\\nassistance of counsel, and (2) the state court’s rejection of that Sixth\\nAmendment claim was an unreasonable application of clearly\\nestablished Supreme Court precedent. For reasons stated herein, we\\nreject the gateway determination and, therefore, dismiss without\\naddressing the barred Sixth Amendment claim.\\n\\n Judgment REVERSED and Petition DISMISSED.\\n\\n Judge Jacobs concurs in a separate opinion.\\n\\n\\n\\n\\n RANJANA C. PIPLANI, Assistant District\\n Attorney (John M. Castellano, Assistant\\n District Attorney, on the brief), Kew Gardens,\\n New York, for Richard A. Brown, District\\n Attorney, Queens County, for Respondent‐\\n Appellant.\\n\\n GLENN A. GARBER (Rebecca E. Freedman, on\\n the brief), The Exoneration Initiative, New\\n York, New York, for Petitioner‐Appellee.\\n\\n\\nREENA RAGGI, Circuit Judge:\\n\\n Respondent William Brown appeals from a judgment entered\\non July 13, 2016, in the United States District Court for the Eastern\\nDistrict of New York (Raymond J. Dearie, Judge), which, pursuant to\\n28 U.S.C. § 2254, grants petitioner Tullie Hyman relief from a New\\nYork State judgment convicting him of, among other crimes, the\\nsecond‐degree depraved indifference murder of Maria Medina, the\\ninnocent victim of a gunfight bullet gone astray. See Hyman v. Brown,\\n197 F. Supp. 3d 413 (E.D.N.Y. 2016). The district court concluded that\\n\\n\\n 2\\n\\nHyman’s conviction had been obtained in violation of the Sixth\\nAmendment right to effective assistance of counsel because, as the\\nresult of a conflict of interest grounded in a fee dispute with a private\\ninvestigator, counsel failed to call the investigator as a witness at\\nHyman’s trial, where he could have offered evidence to impeach the\\nprosecution’s lead identification witness. See id. at 464–66.\\n\\n When Hyman earlier presented this constitutional claim in a\\ncollateral state challenge to conviction, a New York court rejected it\\non a state procedural ground, as well as on the merits. See People v.\\nHyman, No. 1787/00 (Sup. Ct. Queens Cty. Aug. 4, 2009) (reproduced\\nin App’x 3285–95). The independent procedural ruling erected a bar\\nto federal habeas review that Hyman concedes he cannot overcome\\nby showing good cause to excuse his procedural failure and ensuing\\nprejudice. See House v. Bell, 547 U.S. 518, 536 (2006) (collecting cases\\ndiscussing “cause and prejudice” exception to procedural bar).\\nNevertheless, the law affords another narrow “gateway” to merits\\nreview of defaulted claims for habeas petitioners who can make\\ncredible and compelling showings of actual innocence. Id. at 538. The\\ndistrict court found that Hyman satisfied this demanding standard\\nand, thus, reached the merits of his Sixth Amendment claim. See\\nHyman v. Brown, 197 F. Supp. 3d at 463. Respondent here challenges\\nboth this gateway finding and the district court’s identification of\\nSixth Amendment error.\\n\\n On de novo review of petitioner’s actual innocence claim, see\\nRivas v. Fischer, 687 F.3d 514, 543 (2d Cir. 2012) (stating that actual\\ninnocence determination presents “mixed question of law and fact”\\nreviewed de novo), we conclude that Hyman has not carried his\\ngateway burden. Accordingly, we vacate the challenged judgment\\nand order Hyman’s habeas petition dismissed.\\n\\n\\n\\n 3\\n\\n BACKGROUND\\n\\n In reviewing a gateway claim of actual innocence, a court\\n“must consider all [record] evidence, old and new, incriminating and\\nexculpatory, without regard to whether it would necessarily be\\nadmitted under rules of admissibility that would govern at trial.”\\nHouse v. Bell, 547 U.S. at 538 (internal quotation marks omitted). Our\\nbackground discussion is, therefore, necessarily lengthy.\\n\\nI. Overview\\n\\n On the evening of March 10, 2000, Maria Medina was\\nperforming volunteer “tenant patrol” duty in the lobby of 1540\\nHassock Street, the Queens apartment building where she resided\\nwithin the Redfern public housing project.1 At approximately 7:00\\np.m., a shootout erupted in the street in front of that building (“March\\n10 shootout”). Within minutes, more than thirty bullets were fired\\nfrom at least four different weapons. One of these bullets entered the\\nlobby and killed Ms. Medina.\\n\\n New York State charged four persons with crimes relating to\\nthe March 10 shootout: Jonathan Whitmore and Derek Harris, who\\nwere thought to have been shooting from the fence and walkway\\nadjoining 1540 Hassock Street toward the street; and Osimba Rabsatt\\nand petitioner Tullie Hyman, who were thought to have been\\nshooting from the street toward the building. Only Rabsatt and\\nHyman stood trial. Whitmore and Harris each pleaded guilty to\\n\\n\\n\\n\\n1 Tenant patrol is a program whereby residents of public housing volunteer to provide\\nservices, such as signing in visitors, to enhance the security of their homes. See Trial Tr. at\\n779–80; see also Engagement, N.Y.C. PUB. HOUS. AUTH., https://www1.nyc.gov/site/ny‐\\ncha/residents/getting‐involved‐as‐a‐resident.page (last visited June 21, 2019).\\n\\n\\n 4\\n\\ncriminal possession of a weapon and were sentenced to respective\\nprison terms of seven years and two years.\\n\\n At the Rabsatt‐Hyman trial, the prosecution’s theory was that,\\non the night of March 10, these two men drove to 1540 Hassock Street\\nin a red Acura (Rabsatt) and a green Mazda (Hyman), double‐parked\\nthe cars across from 1540 Hassock Street—with their passenger sides\\ntoward the middle of the street and facing 1540—and proceeded to\\nengage in a gunfight with Whitmore and Harris. Rabsatt successfully\\nchallenged this theory by offering alibi evidence placing him\\nelsewhere at the time of the gunfight. The jury acquitted him on all\\ncounts. Not so Hyman, who did not dispute being at the shootout in\\na green Mazda, but who maintained that he was an unarmed victim\\nof, rather than a participant in, the gunfight. Finding otherwise, the\\njury returned a guilty verdict against Hyman for second‐degree\\ndepraved indifference murder, see N.Y. Penal Law § 125.25(2);\\ncriminal possession of a weapon in both the second and third degrees,\\nsee id. §§ 265.03(1), (2); and first‐degree reckless endangerment, see id.\\n§ 120.25.2 Sentenced to a total prison term of 21 years to life for these\\ncrimes,3 Hyman began serving his sentence in June 2002, and\\nremained incarcerated until October 2016, when he was released\\npursuant to the July 2016 habeas judgment granting such relief unless\\nthe state took substantial steps to retry Hyman within 90 days. Failing\\nto procure a stay of that order, the state released Hyman and timely\\nappealed.\\n\\n\\n2 The jury acquitted Hyman on one count: the second‐degree attempted murder of\\nJonathan Whitmore. See N.Y. Penal Law §§ 110.00, 125.25.\\n\\n3 The state court sentenced Hyman to concurrent prison terms of 21 years to life for second‐\\ndegree depraved indifference murder, 15 years for criminal possession of a weapon in the\\nsecond degree, seven years for criminal possession of a weapon in the third degree, and\\ntwo to six years for reckless endangerment.\\n\\n\\n 5\\n\\nII. State Proceedings\\n\\n A. Trial\\n\\n 1. Trial Evidence\\n\\n To secure Hyman’s conviction, the state offered evidence\\ngenerally falling into three categories: (1) Hyman’s own statements to\\nthe authorities, (2) eyewitness accounts of the shootout, and (3)\\nforensic evidence of the crime scene. Hyman offered no evidence in\\ndefense.\\n\\n Hyman’s Statements\\n\\n i. March 11, 2000\\n\\n On March 11, 2000, upon learning that police were looking for\\nhim in connection with the prior night’s shootout, Hyman voluntarily\\nsurrendered himself at the 113th precinct in Queens, New York.\\nWaiving his Miranda rights, Hyman admitted being present during\\nthe shootout, but denied firing a weapon. To the contrary, he\\nreported being unarmed when he went to 1540 Hassock Street to pick\\nup his girlfriend, Shakina Harris4 and, there, was ambushed by men\\nshooting at him. Hyman then gave police a sworn statement, which\\na detective read to the jury as follows:\\n\\n On Friday [i.e., March 10, 2000] when I [i.e., Hyman] came\\n home from court Shakina called me and we were going\\n to meet later 8:00 or 9:00. I would pick her up at her\\n building, the last one. I drove down the street, the one\\n way and pulled up behind a white civic. I put [on] my\\n hazard indicators, took the car out of gear, put it in\\n neutral and pulled the emergency brake up.\\n\\n4 Shakina Harris is the sister of Derek Harris, one of the charged shooters in the case.\\n\\n\\n 6\\n\\n I looked over by the stores and the building. No one was\\n there. Dark station wagon was backing across from me.\\n Then I heard three or four shots. I looked in my door\\n mirror and saw two guys coming up behind me from the\\n sidewalk firing. I got low in the car. I tried to put the car\\n in gear but it stalled out. I got it back on. I saw two guys\\n get out of the wagon and they were firing in my angle. I\\n got the car in reverse and went around the civic. I made\\n a left at the light and went to my brother’s house and told\\n him what happened. Grabbed some clothes. Called my\\n girlfriend and left.\\n\\nTrial Tr. at 1388–89.\\n\\n ii. March 12, 2000\\n\\n The following day, Hyman again waived his Miranda rights\\nand told police that he had driven to 1540 Hassock Street on March\\n10 in a red Acura. After Hyman stopped the car, two men emerged\\nfrom the car parked behind his and began shooting at him. Other\\npersons also fired at Hyman from the side of his car before he fled the\\nscene.\\n\\n Approximately two hours later, and after Hyman spoke with\\nhis mother, he revised his account, telling police that he had not\\ndriven to Hassock Street in a red Acura, although he had driven such\\na car in the recent past. Rather, he had driven to Hassock Street in a\\ngreen Mazda that he “just recently bought.” Id. at 870.5\\n\\n\\n\\n\\n5Police recovered the green Mazda from Hyman’s aunt’s garage. They elsewhere located\\na red Acura linked to Hyman by papers found therein, specifically, a benefits card and a\\ncourt summons in his name.\\n\\n\\n 7\\n\\n iii. June 8, 2000\\n\\n On June 8, 2000, Hyman testified before a grand jury,\\nmaintaining that he went to 1540 Hassock Street on March 10 to pick\\nup his girlfriend; that he was unarmed; that after he parked, he “heard\\nmultiple shots coming from the back of [his] car,” id. at 1725; that four\\npeople fired at him, “two from the left side and two from the right\\nside,” id. at 1731; and that, in the course of the shooting, the glass from\\nthe “passenger side window” of his car “popped in [his] face,” id. at\\n1734. Hyman also testified that he had driven to Hassock Street by\\nhimself in a green Mazda MX6, not in a red Acura. He acknowledged\\nthat, before acquiring the green Mazda, he had driven a red Acura,\\nbut he said that car was not at the shootout scene. Hyman also denied\\nknowing Jonathan Whitmore, threatening him, or recognizing him at\\nthe shootout scene.\\n\\n Eyewitness Testimony\\n\\n While Hyman’s own statements thus established his presence\\nat the March 10 shootout as the sole occupant of a green Mazda, the\\nstate relied on four eyewitnesses—Margaret Contreras, Lynn Burton,\\nDeborah McCoy, and Shaquana Ellis—to establish that Hyman was\\nnot an unarmed ambush victim but a shooting participant in the\\ngunfire exchange. Each woman testified to seeing gunshots fired\\nfrom, or by the occupant of, the green Mazda, but only Ellis would\\nspecifically identify Hyman as that shooter. Her recantation of that\\nidentification is the basis for Hyman’s actual innocence claim.\\n\\n i. Margaret Contreras\\n\\n Margaret Contreras testified that she was on tenant patrol with\\nMaria Medina and Shereda Freeman on March 10, 2000, when she\\n\\n\\n\\n 8\\n\\nheard several gunshots, one of which struck Medina.6 As she and\\nFreeman pulled the injured Medina toward the elevator, Contreras\\nsaw, through the lobby door, a “dark greenish” car parked in the\\nstreet. Id. at 1038. The car’s window was down, and Contreras there\\nsaw “something silverish” that “looked like a gun but it was like a\\nflash.” Id. Contreras acknowledged that she did not mention the car\\nor any gunfire flash in her initial police interview, explaining that\\n“[n]o one ever asked” about “what happened outside of the\\nbuilding.” Id. at 1096. She explained that she disclosed these facts\\nwhen prosecutors showed her a photograph of a car—Hyman’s green\\nMazda—and asked if she had ever seen it. She told them it looked\\nlike the car outside her building on March 10 and then recounted\\nwhat she had seen. Contreras testified that things were happening\\n“really fast” on the night of the shootout, id. at 1040, and that her focus\\nwas on getting Medina to safety rather than on trying to “see\\nsomething” outside, id. at 1049. Nevertheless, she did not waver in\\nher testimony to seeing a flash of gunfire coming from the window of\\nthe dark green car parked outside her building on March 10.\\n\\n Although Contreras had never told prosecutors that she could\\nidentify anyone involved in the shootout, on cross‐examination she\\nstated for the first time that, on the evening of March 10, she had seen\\nWhitmore, her neighbor, enter 1540 Hassock Street carrying a gun.\\nLater that night, Whitmore knocked on Contreras’s door and told her\\nthat he was “very sorry about all this stuff that happened.” Id. at 1084.\\nContreras stated that she had not previously told anyone about seeing\\nWhitmore because she was worried for her 16‐year‐old son.\\n\\n\\n\\n\\n6Shereda Freeman would also testify at trial, but only to her efforts to assist Maria Medina.\\nShe offered no evidence about the shootout.\\n\\n\\n 9\\n\\nContreras was, in fact, moved out of her building soon after the March\\n10 shootout.\\n\\n ii. Lynn Burton\\n\\n Lynn Burton testified that she was in the bedroom of her third‐\\nfloor apartment at 1540 Hassock Street when she heard gunfire erupt\\non the evening of March 10. From a window of her apartment facing\\nthe street, Burton saw three cars double‐parked in front of the\\nFriendly market across the street: “a green jeep, a red color car with\\ndark tinted windows,” and “behind that . . . a dark colored car.” Id.\\nat 1594. Burton initially told police the last car was a black or dark\\nAltima, but, subsequently, and at trial, she identified the “dark\\ncolored car” as Hyman’s green Mazda.7 Burton testified that she saw\\n“shots being fired” from “the red vehicle and the dark colored vehicle\\nthat was behind the red vehicle,” but that she did not see who fired\\nthem. Id. at 1594–95. What she saw “was some fire coming out of a\\nwindow.” Id. at 1628. Burton did not see anyone standing near or\\nleaning out of the cars. Nor did she see Whitmore, whom she knew\\nwell because his mother lived at 1540 Hassock Street.\\n\\n iii. Deborah McCoy\\n\\n Deborah McCoy resided in a building across from 1540\\nHassock Street. She testified that after hearing gunshots on the\\nevening of March 10, she ran to the kitchen window of her seventh‐\\nfloor apartment, from where she saw a red Acura parked in front of\\nwhat she initially described as a “black” car, but which she\\nsubsequently stated looked like Hyman’s dark green Mazda as\\n\\n7 Specifically, Burton was shown two photographs in evidence of the green Mazda that\\nHyman admitted to driving to 1540 Hassock Street on March 10 and that police recovered\\nfrom his aunt’s garage. Burton testified that it looked like the car from which she had seen\\nshots fired on March 10.\\n\\n\\n 10\\n\\ndepicted in police photographs. Id. at 1783. McCoy testified that\\nshots “first came from the cars.” Id. at 1813. She identified one\\nshooter, standing near the driver’s side of the red car, as Osimba\\nRabsatt, whom McCoy knew from high school. She saw another\\nman—whom she could not identify—get out of the dark car, fire a\\ngun, and then get back into the car. McCoy testified that she also saw\\nWhitmore and Harris shooting toward the cars as they ran along a\\nwalkway toward the entry of 1540 Hassock Street. McCoy knew\\nWhitmore because she is his sister’s godmother and Whitmore’s\\nmother is godmother to McCoy’s son. McCoy telephoned 911 to\\nreport the shootout, but did not then mention any participants by\\nname.8\\n\\n iv. Shaquana Ellis\\n\\n Shaquana Ellis testified that, at the time of the March 10\\nshootout, she was standing in the third‐floor hallway of 1540 Hassock\\nStreet with two friends, Amanda Benitez and Shaquana Delain.\\nThrough a hallway window, Ellis saw two cars pull up to the\\nbuilding: a red Acura with tinted windows and a green Mazda. After\\nthe cars “sat there” for a while, Ellis saw “Tullie,” i.e., Hyman,\\n“hanging out the . . . window, from the passenger side” of the green\\ncar, “just fir[ing] off” gunshots. Id. at 1550–51. Ellis testified that she\\nnever actually saw a gun; rather, she saw about five flashes of light,\\nwhich looked like “fire, like red come out of the gun,” coming from\\nHyman’s direction. Id. at 1553. Ellis stated that she did not see\\nWhitmore, Harris, or anyone else at the shootout scene.\\n\\n\\n\\n\\n8The jury heard that nine 911 calls reported the shootout. Five calls did so generally. One\\ncaller reported a man with a gun in front of the building. Two callers (one of whom placed\\ntwo calls) identified Whitmore as a shootout participant.\\n\\n\\n 11\\n\\n Ellis admitted not reporting these events to the police when\\nfirst interviewed. At that time, she told authorities she had not seen\\nthe shooting at all. Ellis, nevertheless, denied telling friends or a\\nprivate investigator that she had not seen the shootout. She also\\ndenied that Whitmore had paid her to incriminate Hyman, although\\nshe acknowledged that Whitmore had corresponded with her from\\nprison.\\n\\n Forensic Evidence\\n\\n Within twenty minutes of the March 10 shootout, police had\\nsecured the area in front of 1540 Hassock Street and started to collect\\nevidence. Much of the ballistic evidence gathered indicated that\\nbullets were fired not only at, but also from, Hyman’s green Mazda.\\n\\n The recovery of four discharged .45 caliber shell casings and\\nfourteen discharged 9mm shell casings from the middle of Hassock\\nStreet indicated gunshots fired in that vicinity, which was consistent\\nwith the location of cars double‐parked there on March 10, including\\nHyman’s green Mazda. Meanwhile, twelve discharged .380 caliber\\nshell casings were recovered from the fence and walkway bordering\\nthe front of 1540 Hassock Street. This corresponded to Deborah\\nMcCoy’s account of Whitmore and Harris firing gunshots at the\\nparked cars as the two men ran toward the building.\\n\\n Police matched most of these shell casings to firearms\\nrecovered at the scene. Specifically, six of the twelve .380 caliber shell\\ncasings—i.e., casings for bullets fired from 1540 Hassock Street—were\\nmatched to a .380 caliber handgun found on the rear lawn of the\\nbuilding. Whitmore would later admit firing that gun during the\\nMarch 10 shootout. The other six .380 caliber casings went\\nunmatched. Meanwhile, all recovered .45 caliber and 9mm casings—\\n\\n\\n 12\\n\\ni.e., casings for bullets fired from the vicinity of the double‐parked\\ncars—were matched to a .45 caliber handgun and an Intratech 9mm\\nsemiautomatic pistol found inside the spare tire wheel well of\\nWhitmore’s Ford Taurus.9 At trial, the prosecution took the position\\nthat the bullet that killed Ms. Medina came from one of these two\\nguns, which had been fired toward 1540 Hassock Street by Hyman\\nand Rabsatt.10 To explain how guns fired by Hyman and Rabsatt\\nwound up in Whitmore’s car, the prosecution suggested that\\nsomeone might have planted them there to divert attention from\\nHyman and Rabsatt. Finally, no ballistic evidence was matched to\\nanother 9mm handgun, found broken into eight parts in a trash\\ncompactor inside 1540 Hassock Street.\\n\\n Police further discovered that bullets had penetrated the door\\nand rear lobby of 1540 Hassock Street. The height of some bullet\\nholes—1’10” and 1’5.75” above ground level—was consistent with\\nshots being fired toward the building from the window level of a car\\nin the street. Bullet marks were also found in a second‐floor\\napartment of 1540 Hassock Street, the Friendly market across the\\nstreet, and three parked cars.\\n\\n Meanwhile, when police subsequently recovered Hyman’s\\ngreen Mazda, they saw bullet damage concentrated on the vehicle’s\\nfront hood, front passenger door, and right rear bumper, which was\\nconsistent with bullets fired from the direction of 1540 Hassock Street.\\nThere was no bullet damage to the car’s rear area or to its left side,\\n\\n\\n\\n\\n9Police had secured that car in the vicinity of 1540 Hassock Street on March 10, but did not\\nsearch it until a few weeks later.\\n\\n10 Apparently, the state did not test the bullet killing Ms. Medina to confirm this theory.\\n\\n\\n 13\\n\\nalthough Hyman had claimed that assailants had fired at him from\\nthe rear and from both sides of the vehicle.\\n\\n Forensic examination also determined that the Mazda’s front\\npassenger window was open during the shootout—as some\\neyewitnesses had reported—because the shattered window was\\ninside the door’s window track and there was a bullet hole in the door\\nbelow the track.\\n\\n B. Conviction and Direct Appeal\\n\\n After the jury found Hyman guilty, and the case proceeded to\\nsentencing, Hyman’s counsel advised the court that a defense private\\ninvestigator, Kevin Hinkson, had procured a statement from Amanda\\nBenitez that impeached Shaquana Ellis’s trial testimony about\\nwitnessing the March 10 shootout. Construing the disclosure as a\\nrequest for adjournment of sentence in anticipation of a formal\\nmotion to vacate the verdict as required by N.Y. Crim. Proc. Law\\n§ 330.30, the trial court declined to grant such relief in light of two\\nprior adjournments of sentence. Thus, on May 15, 2002, it sentenced\\nHyman to a total of 21‐years‐to‐life imprisonment.\\n\\n Hyman unsuccessfully appealed his conviction, first to the\\nAppellate Division, which unanimously affirmed, see People v. Hyman,\\n15 A.D.3d 417, 788 N.Y.S.2d 863 (2d Dep’t 2005), and then to the New\\nYork Court of Appeals, which denied review, see People v. Hyman, 4\\nN.Y.3d 854 (2005).\\n\\n\\n\\n\\n 14\\n\\n C. Collateral Challenges to Conviction\\n\\n 1. First § 440 Motion\\n\\n On April 28, 2005, Hyman moved for collateral relief pursuant\\nto N.Y. Crim. Proc. Law § 440, seeking DNA testing of the 9mm\\nhandgun recovered from Whitmore’s car. The state court denied the\\nmotion, concluding that Hyman failed to show that DNA testing\\nwould have resulted in a favorable verdict. See People v. Hyman, 51\\nA.D.3d 689, 863 N.Y.S.2d 240 (2d Dep’t 2008), denying leave to appeal,\\n10 N.Y.3d 960 (2008).\\n\\n 2. Second § 440 Motion\\n\\n On July 7, 2008, Hyman filed a second § 440 motion based on\\n(1) newly discovered evidence, specifically, Ellis’s recantation of her\\ntrial testimony; and (2) ineffective assistance of counsel in failing to\\ncall investigator Hinkson as a trial witness to impeach Ellis. Various\\naffidavits were offered to support the motion.\\n\\n a. Kevin Hinkson\\n\\n Investigator Hinkson stated that, in anticipation of Hyman’s\\ntrial, he had inspected the third‐floor hallway at 1540 Hassock Street\\nand determined that it would have been “impossible” for Ellis “to\\nobserve the events of the shooting” from windows therein. Second\\n440, Exh. Q. Hinkson reported providing defense counsel with\\nphotographs and a video recording of the hallway supporting this\\nopinion.11 Also prior to trial, Hinkson provided counsel with an\\nunsigned statement from Amanda Benitez in which she admitted\\n\\n11Only photocopies of Hinkson’s photographs were attached to his § 440 affidavit, the\\noriginal photos and videotape having been lost. Although the copies are dark, they appear\\nto show that the street area where the shootout occurred could be seen from the third‐floor\\nhallway window.\\n\\n\\n 15\\n\\nthat, contrary to what she had told police and to what Ellis had\\ntestified at trial, Benitez and Ellis had not been at a third‐floor\\nwindow of 1540 Hassock Street at the time of the March 10 shootout.\\n\\n Hinkson stated that trial counsel never discussed any of this\\nevidence with him and never sought his testimony at Hyman’s trial.\\nHinkson further stated that he has never been paid for his services on\\nHyman’s case. While trial counsel told him that Hyman’s family\\nwould pay Hinkson directly, Hyman’s father told Hinkson that he\\nhad given counsel $2,500 to pay the investigator.12\\n\\n b. Amanda Benitez\\n\\n On March 21, 2002—approximately a week after the jury found\\nHyman guilty—Benitez swore to the statement she had earlier given\\nHinkson, and Hyman offered that sworn statement in support of his\\nsecond § 440 motion. Therein, Benitez admitted that she had not seen\\nthe March 10 shootout from the third‐floor hallway window of 1540\\nHassock Street. She stated that she arrived at the building only after\\npolice were already at the scene. Benitez then went to “Donald’s”\\nthird‐floor apartment, where Shaquana Ellis, Shaquana Delain, and\\nothers had already gathered. Second 440, Exh. J. They stayed in the\\napartment “all night because the police would not let us out.” Id.\\nWhen police came to speak with them the next morning,\\n\\n Shaquana Ellis pulled me [i.e., Benitez] aside and told me\\n to lie to the police and tell them I saw what happened.\\n Shaquana told me a story to tell the police about my\\n seeing Tully [Hyman] shooting a gun at Jonathan\\n [Whitmore]. Shaquana Ellis was a friend of Jonathan\\n\\n\\n12In a sworn affidavit, Hyman’s father, James Sanders, stated that he was “positive” he\\nhad given trial counsel $2,500 to pay for a private investigator, although trial counsel\\nclaimed never to have received that money. Second 440, Exh. P.\\n\\n\\n 16\\n\\n Whitmore and Jonathan’s friends. I never did see Tully\\n that night because I was not there when everything\\n happened. . . . I told the police I was not there when it\\n happened and that I did not know anything. The police\\n kept telling me that I did see what happened and if I did\\n not tell them, I would be arrested. . . . I told them the story\\n Shaquana had told me to say and they wrote it down.\\n\\nId.\\n\\n c. Stacey Manning\\n\\n In another affidavit, Ellis’s friend, Stacey Manning, recounted\\nthat, in the summer of 2002, Ellis told Manning that “she [i.e., Ellis]\\ndidn’t see who was shooting” during the March 10 gunfight, but she\\nfalsely testified in order “to help her cousin’s baby’s father, a guy\\nnamed Jonathan Whitmore.” Second 440, Exh. T. Manning said Ellis\\nprofessed fear that authorities “w[ould] lock her up” if she now said\\nthat she had lied. Id.\\n\\n d. Irwin Blye\\n\\n Irwin Blye, a private investigator retained in connection with\\nHyman’s § 440 motion, submitted an affidavit stating that, on\\nSeptember 7, 2005, he conducted an audiotaped interview with\\nShaquana Ellis who admitted that she had not seen the March 10\\nshootout. Ellis said she was inside an apartment when she heard—\\nbut did not see—the shooting occur. Ellis stated that she testified to\\nseeing Hyman firing a gun because she had been threatened by\\n“people from the neighborhood.” Second 440, Exh. U. She said that\\nsomeone called her home, told her what had happened, and what she\\nshould tell police. See Hyman v. Brown, 197 F. Supp. 3d at 439. Ellis\\ntold Blye that she had admitted not seeing the shootout to Amanda\\n\\n\\n\\n 17\\n\\nBenitez.13 She did not withdraw her statement to the police for fear\\nof prosecution, but she felt “‘real bad’ because Mr. Hyman does not\\ndeserve to be in jail.” Second 440, Exh. U.\\n\\n e. Robert DiDio\\n\\n Hyman’s § 440 counsel, Robert DiDio, filed an affirmation\\nstating that Ellis had confirmed to him what she had told Blye, i.e.,\\nthat she had not witnessed the March 10 shootout. Ellis refused,\\nhowever, to sign an affidavit to that effect and was evading a private\\ndetective trying to locate her.\\n\\n f. Ruling\\n\\n The state court denied Hyman’s second § 440 motion, rejecting\\nhis newly discovered evidence claim on the ground that Ellis had not\\nprovided a sworn recantation of her trial testimony as required by\\nN.Y. Crim. Proc. Law § 440.30(1)(a). The court declined to pursue the\\nmatter at a hearing because Ellis then resided outside the court’s\\njurisdiction and, thus, could not be compelled to appear. As for\\nHyman’s ineffective assistance claim, the court concluded that\\nHyman had defaulted the point by not raising it on direct appeal\\ndespite a record basis to do so. See id. § 440.10(2)(c). In any event,\\nthe court rejected the claim on the merits, finding that Hinkson’s\\naffidavit did not convincingly establish that he had viewed the correct\\n\\n\\n\\n\\n13Ellis’s claim that it was in a threatening phone call to her home that she was told what to\\ntell police is at odds with Benitez’s claim that Ellis told her falsely to report seeing the\\nshooting on the morning of March 11 before these women had been able to leave 1540\\nHassock Street. See supra at 16. Ellis’s claim that she lied because she was threatened is\\nalso at odds with Manning’s report that Ellis told her she did so because Whitmore was\\nthe father of her cousin’s baby. See supra at 17.\\n\\n\\n\\n 18\\n\\nlocations in challenging Ellis’s viewpoint, and that counsel’s decision\\nto forgo Hinkson’s testimony may have been strategic in any event.\\n\\n 3. Coram Nobis Motion\\n\\n Hyman thereafter moved for coram nobis relief, claiming the\\nineffective assistance of appellate counsel. The state court rejected the\\nclaim on the merits. See People v. Hyman, 73 A.D.3d 1211, 900 N.Y.S.2d\\n918 (2d Dep’t 2010), denying leave to appeal, 15 N.Y.3d 806 (2010).\\n\\nIII. Federal Habeas Proceeding\\n\\n On August 26, 2010, Hyman filed the instant § 2254 petition pro\\nse, raising eight grounds for vacating his state conviction. The district\\ncourt appointed counsel, who pursued only two claims: the\\nineffectiveness of trial counsel and actual innocence. Counsel\\nmaintained that Hyman’s conviction had been obtained in violation\\nof the Sixth Amendment because his trial attorney had operated\\nunder a conflict of interest grounded in a fee dispute with investigator\\nHinkson, which resulted in the attorney not calling Hinkson as a trial\\nwitness to impeach Shaquana Ellis’s identification. Recognizing that\\nthis Sixth Amendment claim was barred from federal review because\\nthe state court had rejected it, in the first instance, on a state\\nprocedural ground, and conceding that Hyman could not excuse the\\ndefault through a showing of good cause and prejudice, counsel\\nattempted to lift the bar by making a gateway showing of Hyman’s\\nactual innocence. See Schlup v. Delo, 513 U.S. 298, 314–15 (1995).\\n\\n To make this gateway showing, and to demonstrate a Sixth\\nAmendment violation, Hyman relied both on evidence proffered in\\nsupport of his second § 440 motion (already discussed supra at 15–18)\\nand on evidence developed at a three‐day hearing conducted by the\\ndistrict court in December 2015 and January 2016.\\n\\n 19\\n\\n A. Hyman’s Habeas Hearing Evidence\\n\\n 1. Shaquana Ellis\\n\\n With the benefit of both court‐appointed counsel and a promise\\nfrom the Queens District Attorney not to prosecute her for perjury at\\nHyman’s trial, Ellis testified in the district court that she did not\\nwitness the March 10 shootout and, thus, lied in testifying that she\\nhad at Hyman’s trial. Ellis stated that, on March 10, she was outside\\n1540 Hassock Street when she saw Hyman pull up to that building in\\na green car, but she did not see him carrying or firing a gun. When\\nshe heard gunshots, Ellis ran into the building, going to Apartment\\n3A, where she saw Amanda Benitez and Shaquana Delain. Ellis said\\nthat her trial testimony, professing to have been with these women at\\nthe hallway window when the shooting occurred, was untrue. The\\nonly thing she saw from the hallway window on the night of March\\n10 was the lights of emergency vehicles responding to the shooting.\\n\\n Ellis stated that she falsely testified to witnessing the shooting\\nbecause “my life and my family life was threatened.” Habeas Hearing\\nTr. at 36. Ellis explained that, as she was walking home alone at\\napproximately 2:00 a.m. on March 11, an unknown individual, who\\n“had a hoodie and a bandana around [his] face,” exited a vehicle that\\nhad pulled up beside her and pointed a gun at her face. Id. The man\\ntold Ellis that if she “didn’t go and point Tullie out in a lineup, that\\nthey were going to come kill [her] and [her] family.” Id. The hooded\\nindividual, along with the car’s driver, instructed Ellis to tell police\\nthat there were red and green cars at the shootout. Ellis said that she\\nherself fabricated the detail about seeing flashes coming from\\nHyman’s hands to make her account “convincing.” Id. at 72.\\n\\n\\n\\n\\n 20\\n\\n The district court, whose opinion carefully details\\ninconsistencies and implausibilities in Ellis’s testimony, found her to\\nbe a “facile liar” and observed that “several features of [her]\\ntestimony were effectively undermined on cross‐examination,”\\nnotably, her account of the threat she claimed to have received the\\nnight of the shooting. Hyman v. Brown, 197 F. Supp. 3d at 445, 461.\\nNevertheless, the court concluded that the “critical admission” that\\nshe had not seen the shootout or Hyman firing a weapon, “rings very\\ntrue,” a conclusion reinforced by “other” corroborating evidence and\\nby the state’s failure to “impugn[] Ellis’s motive for recanting.” Id. at\\n461 (emphasis in original).\\n\\n 2. Amanda Benitez\\n\\n Amanda Benitez testified that neither she nor Ellis arrived at\\n1540 Hassock Street until after the shooting was over and police\\nalready had secured the crime scene. Benitez did not speak with Ellis\\nuntil the morning after the shooting, when Ellis said that her\\nboyfriend, Shah, wanted Ellis and Benitez to tell police “that Tullie\\n[Hyman] was the shooter,” Habeas Hearing Tr. at 132, that the cars\\ninvolved were green and red, and that Hyman “was hanging out the\\ncar shooting,” id. at 136. Ellis said she was going to tell this story\\nbecause she did not want Shah to go to jail, which led Benitez to think\\nthat Shah might have been involved in the shootout.14 Benitez told\\nEllis she did not want to give this story, and when police interviewed\\nBenitez, she stated that she did not know anything about the shooting\\nbecause she did not see it. Only after police insisted that she must\\nknow something, did Benitez tell the story Ellis had given her, making\\nclear that she had no personal knowledge of events, but was reporting\\n\\n14 This is the third motive identified for Ellis’s false testimony in the state trial, Ellis herself\\nascribing it to death threats and Manning reporting Ellis’s wish to help Whitmore, the\\nfather of her cousin’s baby.\\n\\n\\n 21\\n\\nonly what she had heard. Benitez claimed that a disclaimer to this\\neffect was written at the top of her police statement when she signed\\nit, even though no such statement appeared on the signed document\\noffered into evidence at the hearing.\\n\\n The district court observed that while, “[i]n many respects,\\nBenitez exuded credibility,” her testimony was “problematic” in its\\n“selective disavowals” of certain prior statements and the “patent\\nincredibility” of her claim to have signed a statement for the police\\ncontaining a now‐missing disclaimer. Hyman v. Brown, 197 F. Supp.\\n3d at 462. On balance, the district court concluded that Benitez’s\\n“hearing testimony reliably support[ed] the narrow point for which it\\nwas offered, [i.e.,] as independent proof that Ellis was not present\\nduring the shooting and thus as corroboration of the basic premise of\\nthe recant.” Id.\\n\\n 3. Shaquana Delain\\n\\n Shaquana Delain, who had grown up with Ellis and Benitez,\\ntestified that, on the night of March 10, 2000, she was not with Ellis\\nand Benitez in the third‐floor hallway as Ellis had testified at trial.\\nRather, Delain was inside an apartment at 1540 Hassock Street. She\\nheard no gunshots and learned about the shootout only when a\\nbuilding resident told her about it. The district court found Delain’s\\ntestimony wholly believable. See id. at 452.\\n\\n 4. Kevin Hinkson\\n\\n Finally, the district court heard Kevin Hinkson testify to why\\nhe concluded it would have been impossible for anyone to have\\nwitnessed the shootout from the third‐floor hallway. The court\\nobserved that this testimony “essentially track[ed] the substance of\\n[Hinkson’s] 440 affidavits” and did not “add materially to the actual\\n\\n 22\\n\\ninnocence analysis.” Id. The court did, however, rely on Hinkson’s\\ntestimony in addressing the merits of Hyman’s Sixth Amendment\\nclaim.\\n\\n B. Respondent’s Evidence\\n\\n In rebuttal, respondent offered evidence developed during the\\nMedina murder investigation but not introduced at trial, specifically,\\nstatements inculpating Hyman by shooter Jonathan Whitmore and\\neyewitness Joseph Howard.15\\n\\n 1. Jonathan Whitmore\\n\\n In a written statement to the police dated March 11, 2000,\\nWhitmore admitted firing gunshots at Hyman the prior evening, but\\ncharacterized his actions as defensive. Whitmore stated that he had\\nbeen afraid of Hyman for some weeks after a friend told him about a\\nnote left on another friend’s car stating, “I hope you[‘re] bulletproof,”\\nsigned, “red Ac.” Habeas Exh. G‐14a. Although Whitmore never saw\\nthe note, he interpreted it as a threat to himself, understanding “red\\nAc” to refer to Hyman’s red Acura and believing that Hyman was\\nupset by Whitmore “trying to talk to his girl.” Id.\\n\\n In a videotaped interview the same day, Whitmore stated that\\nhe had never met Hyman, but knew that he had owned a red Acura\\nand recently acquired a green Mazda MX6. In the weeks before the\\nshootout, Whitmore’s friends told him that Hyman was driving\\naround 1540 Hassock Street looking for Whitmore. Although he\\ninitially tried to hide whenever he saw the red Acura, Whitmore\\neventually decided to protect himself and, toward that end, placed a\\n\\n\\n15Whitmore’s statements were held inadmissible at the Hyman‐Rabsatt trial pursuant to\\nBruton v. United States, 391 U.S. 123 (1968).\\n\\n\\n 23\\n\\n.380 caliber gun inside a box, inside a bag, just over the fence in front\\nof 1540 Hassock Street.\\n\\n Whitmore stated that, on the evening of March 10, 2000, he was\\noutside 1540 Hassock Street, talking with Shaquana Delain and\\n“Kim,” when he saw a red Acura and green Mazda MX6 arrive at the\\nbuilding, “the green car in front and the red car [] behind it.” Habeas\\nExh. K at 9. As Whitmore told the women to run inside, Hyman and\\nanother person began firing at Whitmore through the open front\\npassenger window of the green car. Whitmore did not see what guns\\nthe men were using and, therefore, “[c]ouldn’t say this was a 9mm or\\nthat was a .45.” Id. at 23. What he did see was Hyman’s face and arm\\nextending out of the window, then lights and sparks. Whitmore\\nretrieved his own gun and “just blast[ed] back,” emptying a seven‐\\nshot clip. Id. at 10. Running inside the building as he fired, Whitmore\\nwent to his mother’s apartment and threw the gun out a window.\\n\\n The district court found Whitmore’s accounts “generalized,\\nunsubstantiated[,] . . . [and] patently incredible.” Hyman v. Brown, 197\\nF. Supp. 3d at 456. It observed that Whitmore “fail[ed] to offer any\\nplausible basis” for interpreting the note as “a threat to him,” much\\nless one requiring him to arm himself for a gunfight. Id. at 458.\\nFurther, his “self‐serving” statements were in “stark conflict” with\\nother evidence as well as the prosecution’s trial theory. Id. For\\nexample, Whitmore placed himself in the company of two women\\nwhen the shooting began, making no mention of Derek Harris, whom\\nthe prosecution had portrayed as his confederate in the shootout.16\\nAlso, Whitmore’s placement of the green Mazda ahead of the red\\n\\n16As recounted supra at 22, the district court found Shaquana Delain credible in testifying\\nthat she was inside an apartment at 1540 Hassock Street when the March 10 shootout\\noccurred.\\n\\n\\n\\n 24\\n\\nAcura conflicted with trial testimony from Ellis, Burton, and McCoy,\\nwhich placed the cars in reverse order. And his professed sighting of\\ntwo persons in the Mazda was at odds with Ellis’s trial testimony,\\nwhich placed Hyman alone in the vehicle. Finally, the district court\\nthought it more than mere coincidence that Whitmore, in disavowing\\nknowledge of the type of guns fired from the cars, mentioned the\\ncaliber of two guns actually used and later found in his car. Thus, the\\ndistrict court concluded that “the prosecution’s resort to Whitmore’s\\nstatement at the gateway hearing as a sort of smoking gun” rebutting\\nHyman’s actual innocence claim “is difficult to explain; if introduced\\nto rational jurors, their reaction would have to be an even further loss\\nof confidence in the overall investigation.” Id.17\\n\\n 2. Joseph Howard\\n\\n On March 11, 2000, Joseph Howard told police that he was\\nwalking out of 1540 Hassock Street shortly after 7:00 p.m. the previous\\nnight when he saw a red, four‐door Acura with tinted windows stop\\noutside the building approximately 20 feet from him. Howard saw\\nthree African‐American men in the vehicle, one of whom exited the\\npassenger side and began shooting what appeared to be a .45 caliber\\nor 9mm handgun.\\n\\n\\n\\n17The conclusion is not ineluctable. The car‐order discrepancy seems of little import to\\nWhitmore’s credibility as there is no question that he viewed the shootout and Hyman\\nhimself admits that he was at the scene in his green Mazda. Further, because Ellis now\\nadmits that she did not see the shootout, her testimony cannot impeach Whitmore or\\nanyone else. Nevertheless, Hyman himself stated that he was alone in the green Mazda at\\nthe shootout, not with another person as Whitmore recalled. But Hyman’s admission\\ncorroborates Whitmore, at least to the extent he placed Hyman in the green Mazda at the\\nshootout. And if Burton’s and McCoy’s testimony as to the cars’ order casts doubt on\\nWhitmore’s recollection as to that fact, these witnesses support Whitmore’s identification\\nof Hyman as a shooter: Burton, because she saw gun flashes coming from the green car,\\nand McCoy because she saw gunshots fired by a person who briefly exited the green car.\\nSee supra at 10–11.\\n\\n\\n 25\\n\\n In a second interview four days later, Howard stated that he\\nwas actually at a nearby bus stop, approximately 50 feet from the red\\nAcura, when he saw two men exit the car. Howard heard twenty to\\nthirty gunshots exchanged. He then saw the two gunmen return to\\nthe Acura, which sped away.\\n\\n From a photo array—no longer available for review at the\\nhabeas hearing—Howard identified Hyman as one of the March 10\\nshooters. In neither interview did Howard mention seeing a green\\ncar. Rather, he reported seeing a black jeep with tinted windows\\nfollowing directly behind the Acura, as if the two cars were together.\\nBut he did not state that he saw any gunshots fired from or by persons\\nin that car.\\n\\n The district court concluded that “no rational factfinder would\\nassign significant weight to” Howard’s statements because, despite\\nhis photo‐array identification of Hyman as one of the shooters, “his\\nstory conflicts too materially with Ellis’s for a jury to accept a\\nprosecutor’s decision to offer both his and her accounts.” Id. at 459.18\\nThe court further observed that “the dark car Howard says he saw\\nbehind the red Acura was a Jeep, which cannot plausibly be confused\\nwith a green Mazda MX6, a sports car.” Id.19 In any event, the district\\ncourt noted that respondent could not offer “a definite reason” for not\\ncalling Howard as a trial witness, reporting only that he was “‘very,\\nvery difficult to find at the time of the investigation and not very\\ncooperative.’” Id. at 458 (quoting Habeas Hearing Tr. at 5–6).\\n\\n\\n\\n18 Whatever concerns Howard’s account might raise, inconsistency with Ellis’s trial\\ntestimony would not appear to be one of them once the district court credited her\\ntestimony that she had not, in fact, seen the March 10 shootout.\\n\\n19 Hyman himself reported seeing a Jeep on Hassock Street at the time of shootout, and his\\nstatements leave no doubt as to the presence of his green Mazda.\\n\\n\\n 26\\n\\n C. The District Court’s Ruling\\n\\n 1. Actual Innocence\\n\\n In a 91‐page opinion reviewing the above evidence in detail, the\\ndistrict court ruled that Hyman had made the gateway showing of\\nactual innocence necessary to lift the procedural bar to habeas review\\nof his Sixth Amendment claim. Insofar as the gateway standard\\nrequired Hyman to adduce credible new evidence of innocence, the\\ndistrict court ruled that he carried that burden simply through the\\nManning, Blye, and Sanders affidavits offered in support of his\\nsecond § 440 motion. See id. at 461. Each of those affidavits cast doubt\\non Shaquana Ellis’s trial testimony professing to have witnessed the\\nMarch 10 shootout. In any event, Hyman carried his burden through\\nfurther new evidence: the hearing testimony of Ellis, Benitez, and\\nDelain, the first two of whom were credible, if not in whole, at least\\non the “narrow” proposition that Ellis was not present during the\\nshooting and, thus, could not identify Hyman as a participant. Id. at\\n462.\\n\\n The district court ruled that this new evidence made a\\ncompelling showing of innocence because “unless Ellis’s [trial]\\ntestimony was believable, there was essentially no case against\\nHyman.” Id. The district court further concluded that Ellis’s recant\\n“would likely breathe new life into the defense theory that she and\\nother witnesses may have slanted their accounts to promote the\\ntheme that Whitmore was the victim.” Id. at 463. Thus, the district\\ncourt concluded that the new evidence made it “‘more likely than\\nnot’” that “‘any reasonable juror would have a reasonable doubt’\\nabout Hyman’s guilt.” Id. at 462 (quoting House v. Bell, 547 U.S. at\\n538).\\n\\n\\n\\n 27\\n\\n 2. Sixth Amendment Claim\\n\\n As to Hyman’s Sixth Amendment claim, the district court\\nconcluded that the state court unreasonably applied both prongs of\\nStrickland v. Washington, 466 U.S. 668 (1984), in denying Hyman relief\\nfrom judgment. At the objectively‐reasonable‐conduct prong of\\ninquiry, the district court ruled that Strickland did not permit the state\\ncourt to conclude that trial counsel’s decision not to call Hinkson\\ncould have been reasonable strategy because “there is no articulable,\\nreasonable, strategic reason” for counsel not to have introduced\\nHinkson’s sightline findings. Hyman v. Brown, 197 F. Supp. 3d at 464.\\nThe district court thought that conclusion only reinforced by the fact\\nthat counsel was then operating under an “actual conflict of interest,”\\ni.e., a fee dispute with the investigator. Id. at 466 (internal quotation\\nmarks omitted). At the prejudice prong of inquiry, the district court\\nfaulted the state court for “fail[ing] to appreciate the pivotal role\\nEllis’s testimony played in the state’s case,” which meant that, “had\\ncounsel successfully impeached Ellis” with Hinkson’s findings,\\n“there is a more than reasonable probability that the result of the\\nproceeding would have been different.” Id.\\n\\n DISCUSSION\\n\\nI. The Actual Innocence Gateway\\n\\n As the district court recognized, Hyman’s actual innocence\\nclaim plays a “procedural, not substantive” role in this case. Rivas v.\\nFischer, 687 F.3d at 541. Even if successful, the claim cannot itself\\nafford Hyman habeas relief from his state conviction. It can only open\\na gateway to federal review of an otherwise procedurally barred Sixth\\nAmendment claim that, if itself successful, could afford him relief. See\\nSchlup v. Delo, 513 U.S. at 314.\\n\\n\\n 28\\n\\n This is not to minimize the importance of an actual innocence\\nclaim. “[C]oncern about the injustice that results from the conviction\\nof an innocent person has long been at the core of our criminal justice\\nsystem,” both state and federal. Id. at 325. But within that system,\\n“trial is the paramount event for determining the guilt or innocence”\\nof an accused. Herrera v. Collins, 506 U.S. 390, 416 (1993). An accused\\nenters trial with “a presumption of innocence” and a right to “insist\\nthat his guilt be established beyond a reasonable doubt.” Id. at 398.\\nOnce guilt is so established, however, a federal habeas court will not\\nrelitigate the question of guilt for a state defendant who protests his\\nactual innocence. See Rivas v. Fischer, 687 F.3d at 540 & n.34 (observing\\nthat Supreme Court “has never explicitly recognized the existence of\\na freestanding actual innocence claim”). Rather, a federal habeas\\ncourt will review state convictions for constitutional error. See 28\\nU.S.C. § 2254.20\\n\\n The law, nevertheless, affords an actual innocence gateway\\nclaim because “the existence of a concededly meritorious\\nconstitutional violation is not in itself sufficient . . . [to] allow a habeas\\ncourt to reach the merits of a barred claim.” Schlup v. Delo, 513 U.S. at\\n316. Usually, that bar will be lifted only if a petitioner demonstrates\\ngood cause to excuse his default and ensuing prejudice. See House v.\\nBell, 547 U.S. at 536 (collecting cases). Even in the absence of that\\nshowing, however, the law recognizes that, in a “narrow class of\\n\\n20Actual innocence is “‘not itself a constitutional claim’”—except perhaps when raised in\\nthe context of an Eighth Amendment challenge to a capital sentence. Schlup v. Delo, 513\\nU.S. at 315 (quoting Herrera v. Collins, 506 U.S. at 404); cf. Moore v. Dempsey, 261 U.S. 86, 87–\\n88 (1923) (observing that issue on habeas review “is not the petitioners’ innocence or guilt\\nbut solely the question whether their constitutional rights have been preserved”). In\\nHerrera, the Supreme Court presumed, without deciding, that the Eighth Amendment\\nprohibition of cruel and unusual punishment would preclude the execution of a defendant\\nwho made a “truly persuasive” demonstration of actual innocence. 506 U.S. at 417\\n(concluding that defendant failed, in any event, to make that showing).\\n\\n\\n\\n 29\\n\\ncases,” there remains the risk of “a fundamental miscarriage of\\njustice” if the defaulted constitutional claim is not heard. Schlup v.\\nDelo, 513 U.S. at 315 (internal quotation marks omitted). That narrow\\nclass of “truly extraordinary” cases consists of those presenting\\ncredible and compelling claims of actual innocence. Id. at 338; see\\nHerrera v. Collins, 506 U.S. at 404 (“[F]undamental miscarriage of\\njustice exception[] is grounded in the ‘equitable discretion’ of habeas\\ncourts to see that federal constitutional errors do not result in the\\nincarceration of innocent persons.”); Murray v. Carrier, 477 U.S. 478,\\n496 (1986) (limiting “miscarriage of justice” exception to\\n“extraordinary case[s], where a constitutional violation has probably\\nresulted in the conviction of one who is actually innocent”). Thus, a\\nstate prisoner who “seek[s] access to a federal habeas court in the face\\nof a procedural obstacle,” and who cannot overcome that obstacle by\\nshowing cause and prejudice, “must advance both a legitimate\\nconstitutional claim and a credible and compelling claim of actual\\ninnocence.” Rivas v. Fischer, 687 F.3d at 540 (emphases in original).\\n\\n The petitioner’s burden in making a gateway showing of actual\\ninnocence is deliberately “demanding.” House v. Bell, 547 U.S. at 538;\\nsee Schlup v. Delo, 513 U.S. at 324 (observing that actual innocence\\nclaims are rarely successful); accord McQuiggin v. Perkins, 569 U.S. 383,\\n386, 401 (2013) (“stress[ing] that the Schlup standard is demanding”\\nand cases satisfying it “rare”). It requires, first, that petitioner adduce\\n“new reliable evidence—whether it be exculpatory scientific\\nevidence, trustworthy eyewitness accounts, or critical physical\\nevidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. at\\n324. In addition to being reliable, i.e., credible, the evidence must be\\ncompelling. This second requirement demands “evidence of\\ninnocence so strong that a court cannot have confidence in the\\noutcome of the trial unless the court is also satisfied that the trial was\\n\\n\\n 30\\n\\nfree of nonharmless constitutional error.” Id. at 316; accord Rivas v.\\nFischer, 687 F.3d at 541.21\\n\\n The standard’s demand for “evidence of innocence,” Schlup v.\\nDelo, 513 U.S. at 316 (emphasis added), references “factual innocence,\\nnot mere legal insufficiency,” Bousley v. United States, 523 U.S. 614, 624\\n(1998); accord Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002); see also\\nDoe v. Menefee, 391 F.3d 147, 162 (2d Cir. 2004) (Sotomayor, J.) (“As\\nSchlup makes clear, the issue before [the] court is not legal innocence\\nbut factual innocence.”). The new evidence need not demonstrate\\nfactual innocence to an “absolute certainty.” House v. Bell, 547 F.3d at\\n538; accord Rivas v. Fischer, 687 F.3d at 542. But it must be sufficiently\\ncredible and compelling to allow a federal court to conclude that\\n“more likely than not, in light of the new evidence, no reasonable\\njuror would find [petitioner] guilty beyond a reasonable doubt—or,\\nto remove the double negative, that more likely than not any\\nreasonable juror would have reasonable doubt.” House v. Bell, 547\\nU.S. at 538; see Schlup v. Delo, 513 U.S. at 327; Rivas v. Fischer, 687 F.3d\\nat 541.\\n\\n As this court has recognized, this standard is “somewhat\\ncryptic” in marrying a seemingly absolute requirement (no\\nreasonable juror) to a probabilistic one (more likely than not). Rivas\\nv. Fischer, 687 F.3d at 541 (citing Schlup v. Delo, 513 U.S. at 339\\n(Rehnquist, C.J., dissenting) (characterizing standard as “classic\\nmixing of apples and oranges”)). Nevertheless, this court has located\\n\\n\\n21While this gateway standard is demanding, it is less than what would be required to\\nsupport a free‐standing claim of actual innocence. See Schlup v. Delo, 513 U.S. at 316\\n(observing, by reference to Herrera v. Collins, 506 U.S. 391, that, assuming actual innocence\\nclaim could support Eighth Amendment challenge to capital sentence, “evidence of\\ninnocence would have had to be strong enough to make [defendant’s] execution\\nconstitutionally intolerable even if his conviction was the product of a fair trial” (emphasis\\nin original) (internal quotation marks omitted)).\\n\\n\\n 31\\n\\nsome guidance for its application in contrasts that the Supreme Court\\nhas drawn between the Schlup standard and other familiar ones. See\\nid.\\n\\n Notably, Schlup emphasizes that “actual innocence . . . does not\\nmerely require a showing that a reasonable doubt exists in the light\\nof the new evidence, but rather that no reasonable juror would have\\nfound the defendant guilty.” 513 U.S. at 329. Further, a “more likely\\nthan not” showing as to what “no reasonable juror would have\\nfound” requires “a stronger showing than that needed to establish\\nprejudice,” but not so strong as that demanded by the “‘clear and\\nconvincing’ standard.” Id. at 327; see Rivas v. Fischer, 687 F.3d at 541.22\\n\\n Further, the Court has stressed that Schlup’s actual innocence\\nstandard does not equate to the sufficiency‐of‐the‐evidence standard\\nin Jackson v. Virginia, 443 U.S. 307, 319 (1979). Jackson asks whether the\\ntrial evidence, viewed in the light most favorable to the prosecution,\\n“could” allow any reasonable trier of fact to find a charged crime\\nproved beyond a reasonable doubt. Id. By contrast, Schlup’s actual\\ninnocence standard considers a different “mix of evidence” from a\\ndifferent “vantage point.” Rivas v. Fischer, 687 F.3d at 542.\\nSpecifically, a reviewing court assessing the probability of actual\\ninnocence is not limited to the trial record. To the contrary, it “must\\nconsider all the evidence, old and new, incriminating and\\nexculpatory,” House v. Bell, 547 U.S. at 538 (internal quotation marks\\nomitted), and, in doing so, “is not bound by the rules of admissibility\\n\\n\\n22Compare Strickland v. Washington, 466 U.S. at 694 (holding that, to demonstrate prejudice,\\ndefendant must show “reasonable probability that, but for counsel’s unprofessional errors,\\nthe result of the proceeding would have been different”), with Sawyer v. Whitley, 505 U.S.\\n333, 336 (1992) (holding that petitioner must show “by clear and convincing evidence that,\\nbut for a constitutional error, no reasonable juror would have found the petitioner” guilty\\n(internal quotation marks omitted)).\\n\\n\\n\\n 32\\n\\nthat would govern at trial,” Schlup v. Delo, 513 U.S. at 327. This is\\nbecause, at the gateway stage of inquiry, a habeas court’s task is not\\nto identify trial error or to delineate the legal parameters of a possible\\nnew trial. It is to identify those cases in which a compelling showing\\nof actual innocence would make it a manifest injustice to maintain\\nconviction unless it was free of constitutional error. Thus,\\nincriminating evidence obtained in the course of an unlawful search,\\nor custodial admissions made in the absence of Miranda warnings,\\nmay well be inadmissible at trial. Nevertheless, such evidence is\\nproperly considered in assessing factual innocence, with the manner\\nof procurement informing reliability and relevance and, therefore,\\nweight.\\n\\n The district court concluded otherwise: “all the evidence” does\\nnot mean evidence “unquestionably . . . available” to the prosecution\\nat the time of trial but “clearly inadmissible” or simply not offered.\\nHyman v. Brown, 197 F. Supp. 3d at 454. In support, it cited Schlup’s\\nquotation of the factual innocence standard proposed in a law review\\narticle by Judge Friendly for all federal habeas review:\\n\\n The habeas court must make its determination\\n concerning the petitioner’s innocence in light of all the\\n evidence, including that alleged to have been illegally\\n admitted (but with due regard to any unreliability of it)\\n and evidence tenably claimed to have been wrongly excluded\\n or to have become available only after the trial.\\n\\nSchlup v. Delo, 513 U.S. at 328 (quoting Henry J. Friendly, Is Innocence\\nIrrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV.\\n142, 160 (1970)) (emphasis added). The district court construed the\\nhighlighted phrase to limit a habeas court’s consideration of evidence\\nknown, but not offered, at trial, to evidence that might have been\\nwrongfully excluded. See Hyman v. Brown, 197 F. Supp. 3d at 455\\n\\n\\n 33\\n\\n(explaining why Whitmore’s confession inculpating Hyman, and\\nHoward’s out‐of‐court identification of Hyman, should not be\\nconsidered in assessing Hyman’s actual innocence claim—although\\nconcluding that, even on consideration, the claim succeeded). We\\ncannot agree.23\\n\\n The plain language of the sentence indicates that Judge\\nFriendly, and in turn the Supreme Court, were emphasizing the\\nabsence of evidentiary limits on actual innocence review by\\nexplaining that “all evidence, includ[es]” even evidence illegally\\nadmitted at or wrongfully excluded from trial. See, e.g., P.C. Pfeiffer\\nCo. v. Ford, 444 U.S. 69, 77 n.7 (1979) (construing “including” to mean\\npart of larger group (citing Webster’s New Collegiate Dictionary 581\\n(1973))). Indeed, it would make no sense to suggest that an actual\\ninnocence assessment could be informed by illegally admitted\\nevidence but not by properly excluded evidence. They are opposite\\nsides of the same coin and equally probative of actual innocence (or\\nguilt). Much less does it make sense to determine actual innocence\\nfrom illegally admitted evidence but not from admissible evidence\\nthat the prosecution chose not to offer, whether because it seemed\\nduplicative of, or simply less persuasive than, evidence now called\\ninto question by petitioner’s new evidence.\\n\\n Nor do we draw—as the district court did—an inference that\\nSchlup was limiting its own pronouncement freeing actual innocence\\ninquiries from rules of admissibility by following it with the quoted\\nlanguage from Judge Friendly. See Hyman v. Brown, 197 F. Supp. 3d\\nat 455. In Kuhlmann v. Wilson, a plurality of the Court, after quoting\\n\\n23As indicated infra at 55, we accord the Whitmore/Howard evidence little weight, except\\nto note that it does not support Hyman’s actual innocence claim. We here clarify only that\\na court is not barred from considering such evidence because it was properly excluded\\nfrom, or available but not offered at, petitioner’s original trial.\\n\\n\\n 34\\n\\nthe same language from Judge Friendly, followed it with the\\nunqualified conclusion that, “[t]hus, the question whether the\\nprisoner can make the requisite showing must be determined by\\nreference to all probative evidence of guilt or innocence.” 477 U.S. 436,\\n455 n.17 (1986) (emphasis added).\\n\\n Accordingly, we construe the Supreme Court’s actual\\ninnocence precedents to mean what they say, i.e., that reviewing\\ncourts should assess actual innocence claims in light of “all the\\nevidence” regardless of admissibility but with proper consideration\\nfor the weight the evidence can bear in light of relevance and\\nreliability. See House v. Bell, 547 U.S. at 538; Schlup v. Delo, 513 U.S. at\\n328; Kuhlmann v. Wilson, 477 U.S. at 455 n.17.\\n\\n Nevertheless, a challenge arises in making an actual innocence\\nassessment from “all the evidence” because Schlup requires adherence\\nto the principle, “firmly established in our legal system,” “that the line\\nbetween innocence and guilt is drawn with reference to a reasonable\\ndoubt.” Schlup v. Delo, 513 U.S. at 328. Moreover, it is not the court’s\\n“independent judgment as to whether reasonable doubt exists” that\\nis determinative. Id. at 329. Rather, the court’s task is to “make a\\nprobabilistic determination about what reasonable properly\\ninstructed jurors would do.” House v. Bell, 547 U.S. at 538 (internal\\nquotation marks omitted); accord Rivas v. Fischer, 687 F.3d at 542\\n(observing that Jackson’s use of the word “could” focuses inquiry “‘on\\nthe power of the trier of fact to reach its conclusion,’” whereas Schlup’s\\n“use of the word ‘would’ . . . ‘focuses the inquiry on the likely behavior\\nof the trier of fact’” (quoting Schlup v. Delo, 513 U.S. at 330 (emphasis\\nadded in Rivas))). Presumably, properly instructed jurors would be\\ntold not to consider inadmissible evidence. Nevertheless, given the\\nemphasis the Supreme Court has placed on assessing actual\\n\\n\\n\\n 35\\n\\ninnocence claims in light of “all the evidence . . . without regard to . .\\n. admissibility,” House v. Bell, 547 U.S. at 538, we do not interpret its\\nreference to “properly instructed jurors” as a limitation on the\\nevidence to be considered by the court. Rather, we understand the\\nphrase to signal that the habeas court should assume the jury has been\\nproperly instructed as to the elements of the charged crime and the\\nprosecution’s burden of proof when, upon reviewing the totality of\\nthe evidence, the court decides whether it is “more likely than not, in\\nlight of the new evidence, [that] no reasonable juror would find [the\\ndefendant] guilty beyond a reasonable doubt.” Id.; see Schlup v. Delo,\\n513 U.S. at 331 (referencing juror “conscientiously following the\\njudge’s instructions requiring proof beyond a reasonable doubt” in\\nreaching conclusion that no reasonable juror, so instructed, would be\\nlikely to vote for guilt if new evidence there adduced were found\\nreliable on remand).\\n\\n Applying these principles here, we conclude that Hyman has\\nnot made a gateway showing of actual innocence.\\n\\nII. Applying the Gateway Standard\\n\\n A. Respondent’s Unpersuasive Challenges\\n\\n In applying the gateway standard here, we begin by explaining\\nwhy two of respondent’s challenges to the district court judgment do\\nnot persuade.\\n\\n 1. There Are No Categorical Limits on the Types of\\n Evidence that Can Support a Claim of Actual\\n Innocence\\n\\n The district court found credible and compelling new evidence\\nthat effectively impeached Shaquana Ellis’s trial identification of\\n\\n\\n\\n 36\\n\\nHyman as a participant in the March 10 shootout. At the habeas\\nhearing, Ellis herself recanted her trial testimony, admitting under\\noath that she did not see the shootout. That admission was\\ncorroborated by the sworn testimony or affidavits of six persons.\\n\\n Respondent argues that, even if credible, impeachment\\nevidence cannot be compelling because it does not fall within any of\\nthe three categories of “new reliable evidence” identified in Schlup.\\n513 U.S. at 324 (stating that petitioner must present “new reliable\\nevidence—whether it be [1] exculpatory scientific evidence, [2]\\ntrustworthy eyewitness accounts, or [3] critical physical evidence”).\\nRespondent’s argument is defeated by House v. Bell, which instructs\\nthat Schlup’s list is illustrative, not exhaustive. See 547 U.S. at 537\\n(quoting Schlup list, but observing that “habeas court’s analysis is not\\nlimited to such evidence”); accord Munchinski v. Wilson, 694 F.3d 308,\\n338 (3d Cir. 2012) (observing that Schlup’s list is not exhaustive of\\nevidence that can be reliable); Wolfe v. Johnson, 565 F.3d 140, 164 n.32\\n(4th Cir. 2009) (same); Souter v. Jones, 395 F.3d 577, 593 n.8 (6th Cir.\\n2005) (same).\\n\\n Thus, we conclude that while certain evidence may bear more\\nweight than other evidence in demonstrating factual innocence, there\\nare no categorical limits on the types of evidence that can be offered\\nto do so.\\n\\n 2. The District Court Did Not Clearly Err in Finding\\n Ellis’s Recantation Credible\\n\\n Alternatively, respondent faults the district court for finding\\nEllis’s recantation credible. We review a district court’s credibility\\nassessment of witnesses who testify before it only for clear error. See\\nDoe v. Menefee, 391 F.3d at 163–64. Nevertheless, when, as here, a\\nwitness is recanting prior sworn testimony supporting a conviction,\\n\\n 37\\n\\nwe expect district courts to look upon the recantation “with the\\nutmost suspicion.” Haouari v. United States, 510 F.3d 350, 353 (2d Cir.\\n2007). The district court should consider not only the recantation, but\\nthe motives that may have prompted it, the timing of the submission,\\nany possible motive for the original testimony, any inconsistencies in\\nthe witness’s account or between that account and other evidence, the\\nplausibility or implausibility of inferences or assumptions that\\ncrediting the recantation would require, as well as all other factors\\ngenerally considered in assessing witness credibility. See generally Doe\\nv. Menefee, 391 F.3d at 164–65.\\n\\n Here, respondent argues that the credibility of Ellis’s\\nrecantation is suspect because her hearing testimony was compelled\\nby federal subpoena, following her earlier refusal to provide a sworn\\nstatement. These circumstances warrant consideration in assessing\\nEllis’s credibility, but they do not preclude a finding that her\\nrecantation is credible. So too the fact that Ellis’s hearing testimony\\nwas given under a grant of immunity from prosecution for perjury in\\nher trial testimony. The grant did not absolve Ellis of the duty to\\ntestify truthfully at the habeas hearing. Thus, this circumstance was\\nalso properly considered in determining credibility, but it did not\\ncompel a finding that Ellis’s recantation was not credible.\\n\\n As the record shows, the district court well understood these\\ncircumstances and others pertinent to Ellis’s credibility. It did not\\nhesitate to identify implausibilities and inconsistencies in Ellis’s\\ntestimony. At the same time, the district court observed that Ellis’s\\nrecantation was not recent; she had maintained it for more than a\\ndecade in speaking with various persons. The district court also\\nnoted respondent’s failure to point to any motive Ellis might have for\\nfalsely recanting her trial testimony. In weighing the totality of these\\n\\n\\n\\n 38\\n\\ncircumstances, the district court had a unique advantage unavailable\\nto this court: it heard directly from Ellis and observed her demeanor\\nas her recantation was offered on direct examination and tested on\\ncross‐examination. See id. at 164 (recognizing that “district courts are\\ngenerally best placed to evaluate testimony in light of the witnesses’\\ndemeanor”); Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003)\\n(recognizing “factfinder’s unique ability to assess the witness” in\\nmaking credibility determination).\\n\\n Further, the district court heard testimony or reviewed\\naffidavits from various persons who reported either that they did not\\nwitness the shootout with Ellis, as she testified at trial, or had heard\\nher subsequently admit to not seeing the shootout. The district court\\nconducted a thorough hearing to develop this evidence, proceeded\\ncarefully to assess the extent to which it corroborated or undermined\\nEllis’s own account, and ultimately concluded that Ellis’s recantation\\nand the corroboration supporting it were credible—but only in part.\\n\\n Specifically, the district court credited Ellis’s recantation on the\\nnarrow point that she did not see the March 10 shootout and,\\ntherefore, could not identify Hyman as a shooting participant.\\nOtherwise, the district court found Ellis to be a “facile liar” in\\nexplaining both her motives for testifying falsely at trial and her\\nactual whereabouts at the time of the shootout. Hyman v. Brown, 197\\nF. Supp. 3d at 461. Similarly, as to corroborating witness Benitez, the\\ndistrict court credited only her testimony that she and Ellis were not\\nin the third‐floor hallway of 1540 Hassock Street at the time of the\\nMarch 10 shootout and, thus, not in a position to see what occurred.\\nIt found implausible Benitez’s explanation for telling the police\\notherwise and problematic her inconsistent accounts of the night’s\\nevents.\\n\\n\\n\\n 39\\n\\n We are satisfied that the district court viewed Ellis’s recantation\\nwith the appropriate high level of skepticism. But just as the law\\npermits a factfinder who identifies falsity in part of a witness’s\\ntestimony to discredit the whole, see, e.g., Siewe v. Gonzales, 480 F.3d\\n160, 170 (2d Cir. 2007) (referencing maxim falsus in uno, falsus in\\nomnibus), it also affords a factfinder discretion to credit parts of a\\nwitness’s testimony despite discrediting others, see, e.g., United States\\nv. Norman, 776 F.3d 67, 78 (2d Cir. 2015) (stating that factfinder is “free\\nto believe all, some, or none of a witness’s testimony” (internal\\nquotation marks omitted)). On this record of careful evidentiary\\nreview and discernment by the district court, we identify no clear\\nerror in its decision to credit that part of Hyman’s new evidence\\nindicating that Ellis did not see the March 10 shootout and, thus,\\ncould not identify him as a shooting participant. We defer to that\\nfinding in now assessing whether such credible new evidence made\\na compelling showing of actual innocence.\\n\\n B. Hyman Fails To Show Actual Innocence\\n\\n The fact that new evidence is credible does not necessarily\\nmake it compelling under the Schlup standard for actual innocence.\\nPrecisely because the gateway standard for actual innocence is\\ndemanding and rarely met, in applying it to Hyman’s claim, we begin\\nby considering circumstances in which courts have found it satisfied.\\nSee Rivas v. Fischer, 687 F.3d at 543 (being “guided by Supreme Court’s\\napplication of [Schlup] standard in House [v. Bell]” in assessing Rivas’s\\nclaim of actual innocence).\\n\\n\\n\\n\\n 40\\n\\n 1. Precedents Identifying Compelling Showings of\\n Actual Innocence\\n\\n a. Schlup v. Delo\\n\\n In Schlup, petitioner was convicted of murder based largely on\\nthe testimony of two corrections officers who identified him as one of\\nthree white prisoners who attacked a black inmate and stabbed him\\nto death. Schlup sought federal habeas relief, maintaining his\\ninnocence and arguing that trial counsel had been constitutionally\\nineffective in failing to interview and call exculpatory witnesses. See\\nSchlup v. Delo, 513 U.S. at 306–07. In remanding the case for\\napplication of a more‐likely‐than‐not, rather than clear‐and‐\\nconvincing, standard of actual innocence, see id. at 327, the Supreme\\nCourt highlighted the following new evidence: (1) sworn affidavits\\nfrom inmate eyewitnesses to the murder stating that Schlup was not\\npresent for the crime and implicating other inmates by name;24 (2) the\\nsworn affidavit of a former prison lieutenant reporting a disciplinary\\ninteraction with Schlup at and about the time of the killing, which cast\\ndoubt on Schlup’s ability thereafter to have participated in the\\nmurder and still arrived at the prison dining room 65 seconds before\\nthe distress call prompted by the stabbing, as confirmed by a prison\\nvideotape; and (3) the affidavit of an inmate‐clerk stating that there\\nwas no delay between the stabbing and his placing the distress call,\\nand identifying the three men who assaulted the victim as persons\\nother than Schlup, see id. at 331.\\n\\n The Court acknowledged that this new evidence might be\\ndeemed “unreliable” at an actual innocence hearing on remand. Id.\\n\\n24While the district court had considered these affidavits suspect, see Schlup v. Delo, 513\\nU.S. at 309 n.19, the Supreme Court deemed it noteworthy that it was “black inmates\\nattesting to the innocence of a white defendant in a racially motivated killing,” id. at 316.\\n\\n\\n\\n 41\\n\\nNevertheless, it observed that if the evidence were found credible, it\\nwas sufficiently compelling to warrant relief. See id.\\n\\n b. House v. Bell\\n\\n The House petitioner was convicted of murdering a woman in\\nthe course of what prosecutors contended was a sexual assault.\\nCentral to the state’s largely circumstantial case were forensic\\nfindings that House’s semen was present on the dead woman’s\\nclothing and her blood was present on House’s clothing. In claiming\\nactual innocence, House produced new test results undermining both\\nconclusions. Based on this evidence, prosecutors themselves\\nadmitted that the semen at issue was from the victim’s husband, not\\nHouse. See House v. Bell, 547 U.S. at 540. As for minute quantities of\\nthe victim’s blood on House’s clothes, new evidence prompted even\\nthe state’s Assistant Chief Medical Examiner to acknowledge that the\\nblood likely got on House’s pants, not during the murder, but while\\nthe pants were in police custody and came into contact with\\nmishandled autopsy samples of the victim’s blood. See id. at 547.\\nNevertheless, the Supreme Court observed that the new forensic\\nevidence would not, by itself, have allowed petitioner to pass through\\nthe actual innocence gateway. See id. at 548. What tipped the balance\\nwas further new evidence pointing to the victim’s husband as her\\nmurderer.\\n\\n Most important, in the Court’s view, was testimony from two\\nsisters who stated that, at a gathering at their home after the murder\\nat which the victim’s husband was drinking heavily, they heard him\\n“rambling” about his wife’s death, “crying,” and saying he had\\n\\n\\n\\n\\n 42\\n\\n“slapped” her, causing her to “hit her head and it killed her,” but “he\\ndidn’t mean to do it.” Id. at 549–50.25\\n\\n At the habeas hearing, the husband denied killing his wife or\\nconfessing to doing so, and the district court “did not question his\\ncredibility.” Id. at 552. Nevertheless, the Supreme Court noted that\\nthe husband’s hearing account of his whereabouts on the night of the\\ncrime and his denial to ever striking his wife were both impeached by\\nother evidence, in the latter case by the state itself. See id.\\n\\n The Court thus characterized House’s actual innocence claim\\nas a “close” one. Id. at 554; see also id. at 553–54 (cataloguing evidence\\nthat might “still support an inference of guilt”). Nevertheless,\\nbecause “the central forensic proof connecting House to the crime—\\nthe blood and the semen—has been called into question, and House\\nhas put forward substantial evidence pointing to a different suspect,”\\ni.e., the victim’s husband, the Court concluded that House had carried\\nhis Schlup burden because “had the jury heard all the conflicting\\ntestimony—it is more likely than not that no reasonable juror viewing\\nthe record as a whole would lack reasonable doubt.” Id. at 554.\\n\\n c. Rivas v. Fischer\\n\\n Finally, in Rivas v. Fischer, a case in which this court ruled that\\na Schlup showing of actual innocence could excuse an untimely\\nhabeas petition, see 687 F.3d at 550, we found petitioner to have\\ncarried that burden through new, “largely unchallenged—expert\\n\\n25The Supreme Court distinguished the sisters’ testimony from an “eleventh‐hour affidavit\\nvouching for a defendant and incriminating a conveniently absent suspect.” House v. Bell,\\n547 U.S. at 552. “The confession evidence here involves an alleged spontaneous statement\\nrecounted by two eyewitnesses with no evident motive to lie. For this reason it has more\\nprobative value than, for example, incriminating testimony from inmates, suspects, or\\nfriends or relations of the accused.” Id.\\n\\n\\n\\n 43\\n\\ntestimony, which cast considerable doubt on the ‘central forensic\\nproof’ connecting him” to the murder of his former girlfriend, id. at\\n547. That proof was the medical examiner’s opinion as to the time of\\ndeath. In 1987, he estimated that the victim had died sometime\\nbetween Saturday afternoon March 28, 1987, and early Sunday\\nmorning, March 29, 1987. Because Rivas had a “complete” and\\n“unchallenged” alibi for that time span, id. at 524, 543, the state “had\\nno case” against him unless it could prove that the victim died earlier\\nin the weekend, id. at 525. More than five years after the killing, the\\nstate decided it could make that showing. Although no further\\nevidence had developed, a new district attorney asked the medical\\nexaminer to review his case file again, whereupon the examiner\\nrevised his opinion to conclude that the victim’s death “more likely”\\noccurred sometime “Friday night,” March 27, 1987, or “very early\\nSaturday morning.” Id. at 524.\\n\\n To support his actual innocence claim, Rivas offered new\\ncontrary evidence from a distinguished forensic pathologist, who\\ntestified with a “reasonable degree of medical certainty” that the\\ncondition of the victim’s body when examined by the medical\\nexaminer at 3:30 p.m. on Monday, March 30, 1987—in “full rigor” and\\nwithout “discoloration around the abdominal wall”—meant that her\\n“death could not have occurred longer than 48 hours prior to the\\ntime” of examination, i.e., could not have happened earlier than 3:30\\np.m. on Saturday, March 28. Id. at 531 (internal quotation marks\\nomitted). The state mounted no “serious challenge” to the expert’s\\n“credibility or expertise.” Id. at 544. Moreover, it conceded that when\\nthe medical examiner revised his time‐of‐death estimate, he was\\nunder investigation for professional misconduct and, in November\\n1993, resigned his office, in part, to avoid criminal prosecution. See id.\\nat 521. On this record, this court concluded that “any reasonable juror\\n\\n\\n 44\\n\\nwould almost certainly credit” “the essentially unchallenged\\ntestimony of a respected forensic pathologist” as “against the word of\\na disgraced medical examiner,” and “would therefore, more likely\\nthan not, harbor a reasonable doubt about Rivas’s guilt.” Id. at 543,\\n546.26 At the same time, the court characterized the case as “close,”\\nnoting that it “would not expect a lesser showing of actual innocence\\nto satisfy the Schlup standard.” Id. at 546.\\n\\n 2. Hyman’s Credible New Evidence Does Not Make\\n the Compelling Showing of Actual Innocence\\n Required by Schlup\\n\\n With the benefit of these precedents, we apply the Schlup\\nstandard here and conclude that Hyman’s new evidence, even if\\ncredible, is not sufficiently compelling as to his actual innocence to\\nmake it more likely than not that “no reasonable juror,” aware of the\\nnew evidence, would return a guilty verdict on the charged crimes.\\nSchlup v. Delo, 569 U.S. at 329 (internal quotation marks omitted). This\\nis evident from (a) the substance of the evidence itself, (b) its\\ncomparison to precedent, and (c) the totality of the evidence.\\n\\n a. Substance\\n\\n Plainly, the substance of credible new evidence will bear on\\nhow compellingly it demonstrates actual innocence. The new\\nevidence established that Ellis did not see the March 10 shootout and,\\n\\n\\n26The court noted further new circumstantial evidence—“new” because not disclosed by\\nthe prosecution to the defense at trial—that was, at least, consistent with the victim dying\\non Saturday night: (1) an identified neighbor of the victim swore in an affidavit that, while\\nwatching “Saturday Night Live” late on Saturday night March 28, she had heard a\\n“woman’s voice,” “shriek or scream,” “like someone was in trouble and not like anyone\\nkidding around,” Rivas v. Fischer, 687 F.3d at 529 (internal quotation marks omitted); and\\n(2) an unidentified neighbor reported hearing a dog barking and a car speeding away from\\nthe vicinity of the victim’s home around 11:00 p.m. on Saturday night.\\n\\n\\n\\n 45\\n\\nthus, lied in identifying Hyman as a participant. That is quite\\ndifferent from new evidence that an eyewitness to a crime falsely\\nidentified a person other than the one she actually saw commit it. Such\\na false identification can bear on actual innocence because it is more\\nlikely than not that an accused did not commit a crime if someone else\\nin fact did. But no such conclusion obtains in the circumstance here.\\nEllis’s failure to see the shootout means she cannot inculpate\\npetitioner (or anyone else), but neither can she exonerate him. She\\nsimply has no eyewitness evidence bearing on either petitioner’s guilt\\nor his innocence. Whatever question that might raise as to the\\nsufficiency of the prosecution’s case absent Ellis’s testimony, it does\\nnot indicate Hyman’s likely innocence, much less do so compellingly.\\nSee Bousley v. United States, 523 U.S. at 623 (distinguishing factual\\ninnocence from “legal insufficiency”); accord Dunham v. Travis, 313\\nF.3d at 730.\\n\\n b. Precedent Comparison\\n\\n The failure of Hyman’s new evidence to make a compelling\\nshowing of innocence is further demonstrated by a comparison to\\nSchlup, House, and Rivas. In each of these cases, the new evidence\\ndirectly supported petitioner’s factual innocence by indicating either\\nthat he did not commit, or could not have committed, the crimes of\\nconviction.\\n\\n In Schlup, inmate‐eyewitnesses to a prison stabbing swore that\\npetitioner was not one of the three (identified) men whom they saw\\nparticipate in that crime. If credible, this new evidence indicated that\\npetitioner did not commit the crime. Further, in Schlup, a former police\\nlieutenant swore that he was disciplining petitioner at about the time\\nof the stabbing. Such new evidence indicated that petitioner could not\\nhave committed the crime within the time between the discipline\\n\\n\\n 46\\n\\nencounter and his arrival in the prison dining room as indicated on a\\ntimed prison video recording.\\n\\n In House, credible new tests of forensic evidence used to\\nidentify petitioner at trial as the murderer discredited those\\nidentifications. Further, two witnesses credibly testified to hearing\\nthe victim’s husband admit to killing his wife. Such evidence\\nindicated that the petitioner did not kill the victim, because her\\nhusband had.\\n\\n Finally, in Rivas, credible new forensic evidence showed that\\nthe victim died, not at the time reported by a discredited medical\\nexaminer, but at a later time for which petitioner had an unchallenged\\nalibi. Thus, the new forensic evidence together with the alibi\\nindicated that petitioner could not have committed the murder at\\nissue.\\n\\n Although the evidence in both House and Rivas was thus found\\ncredibly to show that petitioner likely did not commit, or could not\\nhave committed, the crimes of conviction, the courts characterized the\\ngateway showing in each case as “close.” House v. Bell, 547 U.S. at 554;\\nRivas v. Fischer, 687 F.3d at 546. Indeed, in Rivas, this court observed\\nthat it “would not expect a lesser showing of actual innocence” than\\nthat made there “to satisfy the Schlup standard.” 687 F.3d at 546.\\n\\n The new evidence here makes a far “lesser showing” of actual\\ninnocence than that in Rivas, House, or Schlup. Evidence that Ellis\\nfailed to see the March 10 shootout leaves the trial record with no\\neyewitness identification of Hyman as the person firing a gun from\\nthe green Mazda. But the absence of such evidence does not mean\\nthat Hyman did not, or could not, have participated in the shootout.\\nIt means only that Ellis does not know who, if anyone, did. This is\\n\\n\\n 47\\n\\nnot to foreclose the possibility that, in some circumstances, a recanted\\nidentification based on an admitted lack of knowledge, might so\\n“thoroughly undermine[] the evidence supporting the jury’s verdict”\\nas to support the probability determination required by Schlup. Id. at\\n543; see also House v. Bell, 547 U.S. at 553–54. We conclude only that\\nthis is not such a case. To explain, we proceed to review the totality\\nof the evidence.\\n\\n c. Totality of the Evidence\\n\\n The district court concluded that without Ellis’s identification,\\nthe prosecution effectively had no case against Hyman. See Hyman v.\\nBrown, 197 F. Supp. 3d at 462–63. The totality of the evidence shows\\notherwise.\\n\\n i. Hyman Places Himself at the Shootout\\n in the Green Mazda\\n\\n To explain, Ellis’s trial testimony can be understood to consist\\nof two parts: (1) she saw Hyman at the scene of the shootout parked\\noutside 1540 Hassock Street in a green Mazda, and (2) she saw Hyman\\nfiring a gun from the car’s passenger window. Ellis did not recant the\\nfirst statement. At the habeas hearing, she maintained that on March\\n10, 2000, she saw Hyman pull up to 1540 Hassock Street in a green\\ncar. When she heard gunshots, she ran inside without seeing who\\nwas doing the shooting. See supra at 20. But even if Ellis had recanted\\nthe first part of her trial testimony, that would not help Hyman\\nbecause he does not dispute his presence at the shootout. The jury\\nheard his statements to the police and grand jury admitting that, at\\nthe time of the shootout, he was indeed double‐parked outside 1540\\nHassock Street, alone, in his green Mazda. Moreover, Hyman\\nacknowledged that he was not coincidentally caught up in the\\n\\n\\n\\n 48\\n\\nshootout; he professed to be its unarmed target.27 In light of these\\nadmissions, the singular focus of Hyman’s actual innocence claim is\\nthe second part of Ellis’s testimony. Is it more likely than not that,\\nupon learning that Ellis did not see Hyman firing a gun during the\\nMarch 10 shootout—because she did not see the shootout at all—no\\nreasonable juror would find him guilty beyond a reasonable doubt of\\nthe charged crimes? See Schlup v. Delo, 569 U.S. at 329. The totality of\\nthe record does not admit that conclusion.\\n\\n ii. Eyewitnesses See Gunfire From Vicinity\\n of Hyman’s Car\\n\\n Ellis’s recantation shows that she had no probative evidence as\\nto whether Hyman fired a gun during the shootout. But not so other\\neyewitnesses. Three residents of the area testified at trial to seeing\\nflashes of gunfire coming from a green (or dark) car or its occupant\\nduring the shootout. Each witness identified the car as resembling\\nHyman’s green Mazda.\\n\\n Margaret Contreras testified that, as she was trying to move the\\nfatally wounded Maria Medina from the lobby of 1540 Hassock Street\\nto the relative safety of an elevator, she saw flashes of gunfire coming\\nfrom the passenger window of a dark green car. See supra at 9. Lynn\\nBurton testified that, upon hearing gunfire, she looked out a window\\nof her third‐floor apartment at 1540 Hassock Street and saw “shots\\nbeing fired” from both a red car and the dark car parked behind it,\\nwhich she described as “fire coming out of a window.” Trial Tr. at\\n\\n\\n27Because Hyman did not testify at trial or at the habeas hearing, his ambush claim was\\nnot tested by cross‐examination. Nevertheless, he himself cast doubt on his credibility by\\ninitially lying to police about driving to Hassock Street in a red Acura rather than the green\\nMazda that he knew was pocked with bullet marks. See, e.g., United States v. Glenn, 312\\nF.3d 58, 69 (2d Cir. 2002) (observing that defendant’s “false exculpatory statements to law\\nenforcement officials may be circumstantial evidence of consciousness of guilt”).\\n\\n\\n 49\\n\\n1628. Deborah McCoy, who lived across from 1540 Hassock Street,\\ntestified that, after hearing gunfire, she looked out the kitchen\\nwindow of her apartment and saw a man she recognized as Osimba\\nRabsatt firing a gun from near a red car, while another man, whom\\nshe did not know, got out of a dark car parked behind the red one,\\nfired a gun, and then got back in the car. See supra at 10–11.\\n\\n The fact that none of these women could identify the occupant\\nof the green car is of no import because Hyman himself provided that\\nevidence. He stated that he was the sole occupant of the green Mazda\\nthat was involved in the shootout. What is significant about these\\nthree women’s testimony, then, is that each of them—viewing the\\nshootout separately and from different vantage points—reported\\nseeing gunfire coming from that car or its occupant. None testified to\\nseeing the car ambushed.\\n\\n Insofar as the witnesses’ recollections differed on certain\\npoints—e.g., the exact color of the car, whether its occupant fired from\\ninside or outside the car—these differences are not a product of Ellis’s\\nrecantation. Rather, they were known to the trial jury, which\\nnevertheless voted to convict. Even with new evidence that Ellis had\\nnot seen the shootout, a reasonable juror would more likely than not\\nattribute any car‐color confusion among other witnesses to the limited\\nlight available at 7:00 p.m. in March for distinguishing among dark\\ncolors. As for whether Hyman fired some shots from inside or outside\\nhis car—or from both—a reasonable juror would more likely than not\\nconclude that it was not necessary to resolve differences on this point\\nbecause, in any event, the eyewitnesses all testified to seeing flashes\\nof gunfire coming from the direction of the green car, not only at the\\n\\n\\n\\n\\n 50\\n\\ncar as Hyman told police in claiming to have been ambushed.28 In\\nlight of consistent eyewitness testimony on this point, and Hyman’s\\nown admissions to being the sole occupant of the green car, Ellis’s\\nrecantation of her gunfire sighting (based on a failure to see the\\nshootout at all) would not likely preclude any reasonable juror from\\nfinding Hyman’s guilt proved beyond a reasonable doubt.\\n\\n In concluding otherwise, the district court reasoned that Ellis’s\\nrecantation might heighten juror skepticism about Contreras’s,\\nBurton’s, and McCoy’s testimony because these women, like Ellis,\\nhad relationships with Whitmore or members of his family, providing\\na motive for them to testify in his favor. The district court thought\\nsuch bias was evident in Contreras’s belated trial disclosure that she\\nsaw Whitmore enter 1540 Hassock Street carrying a gun. While that\\nbelated disclosure—known to the trial jury—could certainly inform\\nan assessment of Contreras’s credibility, in the end, it is not likely that\\nEllis’s recantation would make every reasonable juror reject\\nContreras’s testimony.\\n\\n To begin, it hardly appears likely that Contreras delayed\\nreporting Whitmore’s March 10 gun possession to shield him from\\npolice suspicion. After all, on the day after the shootout, March 11,\\n2000, Whitmore himself told police that he had been in possession of\\na gun, firing an entire seven‐shot clip at Hyman during the gunfight.\\nWhitmore simply attempted to minimize his culpability by saying\\n\\n28There is some non‐trial evidentiary support for Hyman shooting from outside as well as\\ninside a car. The Howard statement summarized supra at 25–26, identifies Hyman as one\\nof two shooters exiting the red Acura. And a police report summarizing interviews with\\n1540 Hassock Street residents indicates that, although most did not see the shooting, third‐\\nfloor resident Tiffany Weeks stated that she saw two black males exit a red Acura and a\\ngreen Mazda, fire guns, and then speed away. In sum, even without Ellis, five\\neyewitnesses (six with Whitmore) reported seeing gunfire coming from, not only at, the\\nparked cars. No person interviewed reported seeing an ambush of the cars.\\n\\n\\n\\n 51\\n\\nthat he acted defensively rather than offensively. The fact that\\nContreras had seen Whitmore with a gun at the conclusion of the\\nMarch 10 shootout did nothing to support or undermine Whitmore’s\\ndefensive version of events. In any event, when questioned at trial,\\nContreras admitted seeing Whitmore. This makes it more, not less,\\nlikely that she would not lie under oath, whether about seeing\\nWhitmore, seeing gun flashes, or any other part of her testimony.\\n\\n Burton’s gunfire sighting also sheds no light on who was the\\naggressor in the gunfire exchange.\\n\\n As for McCoy, she testified that she “first” saw gunfire coming\\nfrom occupants of the parked cars. Trial Tr. at 1813. But the statement\\nmust be considered in context. The gunshots McCoy first saw\\nfollowed the gunshots she heard, which is what prompted her to go\\nto the window. In short, when McCoy went to the window, the\\nshootout was already underway. Thus, her testimony also did not\\nidentify either side in the shootout as the aggressor. Moreover, it\\nhardly appears more likely than not that McCoy’s mutual godmother\\nrelationship with members of Whitmore’s family prompted her to\\nshade testimony in his favor. She is the one trial witness who, on\\ndirect examination, specifically identified Whitmore as one of the\\nMarch 10 shooters. Meanwhile, she did not identify Hyman. At trial,\\nall she could state was that she saw gunfire coming from a red car and\\na dark car. While she identified Rabsatt as the driver of the red car,\\nMcCoy could not identify the driver of the dark car. It is Hyman’s\\nown statements that, even after Ellis’s recantation, identify him as the\\nsole occupant of that car.\\n\\n\\n\\n\\n 52\\n\\n iii. Ballistic Evidence Indicates a Gunfire\\n Exchange, not an Ambush\\n\\n Ballistic evidence makes it unlikely that any reasonable juror\\nwould reject eyewitness testimony about seeing flashes of gunfire\\ncoming from Hyman’s car. Notably, .45 caliber and 9mm shell\\ncasings were retrieved from the middle of Hassock Street, which was\\nright about where they would have been discharged from guns fired\\nfrom the passenger side window of a car double‐parked across from\\n1540 Hassock Street, where Hyman placed his own car. Meanwhile,\\n.380 caliber shell casings recovered from the walkway bordering 1540\\nHassock Street were consistent with guns fired from that area toward\\nthe car, as Whitmore himself admitted. In short, the casings retrievals\\nindicated gunshots fired both from and at the green car, not an\\nambush of the green car’s unarmed occupant.29\\n\\n As noted supra at 13, the guns that discharged the .45 caliber\\nand 9mm casings retrieved from the middle of Hassock Street were\\nthemselves recovered from the wheel well of Whitmore’s car. If\\nHyman fired one of the guns that discharged some of these casings, it\\nis curious that the gun would wind up in Whitmore’s car. The record\\noffers no satisfactory explanation. At trial, the prosecution suggested\\nthat someone planted the guns in Whitmore’s car to deflect blame\\n\\n\\n29At the habeas hearing, respondent stated that the ballistic evidence was not “probative\\nas to . . . the defendant’s participation.” Habeas Hearing Tr. at 45. We construe this to\\nconcede that the ballistic evidence could not specifically identify Hyman as the person\\nresponsible for particular ballistic evidence. We do not construe it as a concession that the\\nballistic evidence was irrelevant to the chain of circumstances establishing Hyman’s guilt,\\nmuch less to Hyman’s ability to make a compelling showing of actual innocence. Indeed,\\nin the sentence following the “participation” statement, respondent noted the recovery of\\n“several rounds of shells . . . or ballistics from the car [Hyman] was purportedly driving at\\nthe time.” Id. As noted in text, spent shells would indicate shots fired from the general\\nlocation where they were retrieved, i.e., the parked green Mazda, while bullet marks on\\nthat car would indicate shots fired toward it. In sum, the ballistic evidence provides strong\\ncircumstantial evidence of a gunfire exchange, not an ambush.\\n\\n\\n 53\\n\\nfrom Hyman and Rabsatt. The hypothesis is pure speculation.\\nNevertheless, it was argued to the jury at Hyman’s trial, which either\\naccepted it or, more likely, did not find it necessary to resolve to\\nconclude that guilt was established beyond a reasonable doubt. The\\nimportant point for purposes of actual innocence is that Ellis’s\\nrecantation neither simplifies nor complicates the puzzle.\\nAccordingly, we do not think it more likely than not that, with the\\naddition of Ellis’s recantation to the gun‐location puzzle, no\\nreasonable juror would find Hyman guilty beyond a reasonable\\ndoubt based on the totality of other evidence.\\n\\n The conclusion finds further support in ballistic evidence\\nrecovered from the 1540 Hassock Street building. The height of bullet\\nholes in the lobby door was consistent with gunshots fired toward the\\nbuilding from a relatively low position, such as the open window of\\na parked car, as Contreras and Burton witnessed. That the Mazda’s\\nwindow was open during the shootout was confirmed by shattered\\nglass inside the passenger door window track. The window did not\\n“pop” in Hyman’s face, as he told police in trying to support his\\nambush story. See United States v. Glenn, 312 F.3d 58, 69 (2d Cir. 2002).\\n\\n Indeed, for bullets entering 1540 Hassock Street—including the\\nbullet killing Ms. Medina—to have come from persons firing at the\\ngreen Mazda as Hyman asserted, rather than from it as eyewitnesses\\ntestified, one or more shooters would have had to have been firing\\ntoward the car’s driver’s side. Hyman told police he was shot at from\\nboth sides of his car. See supra at 8. But that account is convincingly\\nbelied by the complete lack of bullet marks on the Mazda’s driver’s\\nside. Nor were there bullet marks on the car’s rear to support\\nHyman’s story that the men who ambushed him first fired from that\\ndirection.\\n\\n\\n\\n 54\\n\\n In sum, the totality of ballistic evidence indicates a gunfire\\nexchange on March 10, not a one‐sided ambush.\\n\\n As for other evidence, not admitted at trial—such as the\\nWhitmore, Howard, and Tiffany Weeks statements—we do not here\\nassume a reasonable juror’s likely reliance on those statements in\\nfinding Hyman guilty. We note only that the statements do not\\nsupport his claim of actual innocence.\\n\\n Any trial perjury is a serious matter and nothing mitigates\\nEllis’s willingness to lie under oath—a willingness she appeared to\\nmaintain, at least in part, even at the habeas hearing. Nevertheless,\\nwhere, as here, a witness recants a trial identification, not because the\\nwitness knows the accused not to be the person firing a gun during a\\nshootout, but because the witness did not see the shootout at all, that\\nnew evidence is far less compelling in demonstrating actual\\ninnocence than that in Schlup, House, and Rivas. In light of petitioner’s\\nown admission that he was the sole occupant of the green car that was\\nthe focal point of the shootout; three eyewitnesses’ testimony to\\nseeing flashes of gunfire coming from that car or its occupant; and\\nballistic evidence indicating that bullets were fired from, not just at,\\nthe car, we cannot conclude that, upon learning of the Ellis\\nrecantation, it is more likely than not that “no reasonable juror”\\nwould still find Hyman guilty beyond a reasonable doubt of the\\ncharged crimes.\\n\\n Accordingly, we conclude that Hyman has not made the actual\\ninnocence showing necessary to pass through the narrow gateway for\\n\\n\\n\\n\\n 55\\n\\nfederal habeas review of his procedurally barred Sixth Amendment\\nclaim.30\\n\\n CONCLUSION\\n\\n To summarize, we conclude:\\n\\n 1. There are no categorical limits on the types of evidence that\\n can be offered to demonstrate actual innocence and, thus,\\n the district court did not err in considering impeachment\\n evidence.\\n\\n\\n\\n30Because Hyman did not carry his gateway burden, the district court should not have\\ndecided—and we need not review—his barred Sixth Amendment claim. We, nevertheless,\\nnote that the merits of that claim are not apparent.\\n\\nFirst, it is not clearly established by Supreme Court precedent that a fee dispute between a\\ndefense attorney and a potential witness gives rise to an “actual conflict” of interest that\\nallows a petitioner to claim ineffective assistance of counsel without showing prejudice. In\\nCuyler v. Sullivan, 446 U.S. 335, 349–50 (1980), the Court recognized multiple concurrent\\nrepresentations to give rise to an actual conflict, but in Mickins v. Taylor, 535 U.S. 162 (2002),\\nit cautioned against an “expansive application” of Sullivan to such circumstances as when\\n“representation of the defendant somehow implicates counsel’s personal financial\\ninterests,” Mickins v. Taylor, 535 U.S. at 174–75. In Tueros v. Greiner, 343 F.3d 587 (2d Cir.\\n2003), this court stated that “we must look to Sullivan, not . . . Mickens” for “‘clearly\\nestablished Federal law,’” id. at 593. Nevertheless, we have since expressly relied on\\nMickens in refusing to extend Sullivan to circumstances involving an attorney’s ethical\\nobligation to correct false testimony. See Torres v. Donnelly, 554 F.3d 322, 326 (2d Cir. 2009).\\nThus, no clearly established Supreme Court precedent establishes an actual conflict of\\ninterest here.\\n\\nSecond, even if the circumstances indicated such a conflict, Hyman would have to show\\nthat it “‘adversely affected his lawyer’s performance.’” Strickland v. Washington, 466 U.S.\\nat 692 (quoting Cuyler v. Sullivan, 446 U.S. at 350). The state court found that Hyman failed\\nto do so because the Hinkson and Sanders affidavits allowed only speculation as to why\\ntrial counsel had not called Hinkson. The conclusion cannot be deemed an unreasonable\\napplication of clearly established law because Hinkson’s own photographs seem to refute,\\nrather than support, his opinion that it was impossible to see the shootout from the third‐\\nfloor hallway window of 1540 Hassock Street. In these circumstances, the decision to\\nforego calling a particular witness is generally a matter of strategy falling within the wide\\nrange of reasonable professional assistance. See Greiner v. Wells, 417 F.3d 305, 323 (2d Cir.\\n2005); see also Bell v. Cone, 535 U.S. 685, 701–02 (2002).\\n\\n\\n 56\\n\\n2. The district court did not clearly err in finding some of the\\n new evidence Hyman offered to support his actual\\n innocence claim credible.\\n\\n3. Even deferring to that credibility finding, however, on de\\n novo review, we conclude that Hyman has not made the\\n compelling showing of actual innocence necessary for\\n merits review of his procedurally barred Sixth Amendment\\n claim.\\n\\n a. The credible new evidence showed only that a\\n recanting trial witness did not view the shootout at\\n issue in the charged crimes, not that Hyman did not\\n or could not have committed those crimes as\\n indicated by new evidence found compelling in\\n Schlup, House, and Rivas.\\n\\n b. The totality of the evidence nevertheless showed:\\n\\n i. Hyman’s admitted presence at the crime scene\\n as the sole occupant of the dark green car that\\n was the focus of the shootout,\\n\\n ii. Three eyewitnesses, viewing the shootout from\\n difference vantage points, each saw gunshots\\n fired from the direction of that car,\\n\\n iii. Ballistic evidence strongly corroborates that\\n gunshots were fired from, not only at, Hyman’s\\n car, and\\n\\n iv. No evidence (except for Hyman’s own self‐\\n serving account) supports his ambush claim.\\n\\n\\n\\n 57\\n\\n On this record, we cannot conclude that, upon learning of the\\nrecanted trial identification by a witness who had not seen the\\nshootout, it is more likely than not that no reasonable juror would find\\nHyman guilty beyond a reasonable doubt.\\n\\n Accordingly, the judgment of the district court is REVERSED\\nand the petition for a writ of habeas corpus is DISMISSED.\\n\\n\\n\\n\\n 58\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2399,"cells":{"id":{"kind":"number","value":4632224,"string":"4,632,224"},"name":{"kind":"string","value":"BOZZUTO'S INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner."},"name_abbreviation":{"kind":"string","value":"Bozzuto's Inc. v. Nat'l Labor Relations Bd."},"decision_date":{"kind":"string","value":"2019-06-24"},"docket_number":{"kind":"string","value":"Docket 18-125(L); 18-331(XAP); August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Kearse, Livingston, Carney\", \"parties\": \"\", \"opinions\": [{\"author\": \"KEARSE, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"18-125(L)\\n Bozzuto's Inc. v. NLRB\\n\\n\\n\\n\\n 1 UNITED STATES COURT OF APPEALS\\n\\n 2 FOR THE SECOND CIRCUIT\\n\\n 3 ------\\n\\n 4 August Term, 2018\\n\\n 5 (Argued: November 29, 2018 Decided: June 24, 2019)\\n\\n 6 Docket Nos. 18-125(L), 18-331(XAP)\\n\\n 7 _________________________________________________________\\n\\n 8 BOZZUTO'S INC.,\\n 9 Petitioner-Cross-Respondent,\\n\\n10 - v. -\\n\\n11 NATIONAL LABOR RELATIONS BOARD,\\n\\n12 Respondent-Cross-Petitioner.\\n13 _________________________________________________________\\n\\n14 Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.\\n\\n15 Cross-petition by respondent National Labor Relations Board for\\n\\n16 enforcement of an order (A) holding that petitioner employer engaged in unfair labor\\n\\n17 practices in violation of the National Labor Relations Act (the \\\"Act\\\"), 29 U.S.C.\\n\\n18 §§ 158(a)(1) and (3), by, inter alia, announcing wage increases in conjunction with\\n\\f 1 urging employees to decline to join a union, asking one pro-union employee \\\"what's\\n\\n 2 going on with this union stuff,\\\" later suspending and then discharging him for\\n\\n 3 allegedly low productivity, and discharging another pro-union employee for\\n\\n 4 insubordination in refusing to attend a meeting; and (B) requiring employer to (1)\\n\\n 5 cease and desist from such or similar violations, (2) reinstate the insubordinate\\n\\n 6 employee, (3) compensate and make whole both discharged employees, (4) post the\\n\\n 7 Board's remedial notice listing the employer actions found to have violated the Act,\\n\\n 8 and (5) hold a meeting at which that notice is read aloud to its employees by, or in the\\n\\n 9 presence of, employer's senior vice president. See Bozzuto's, Inc., 365 N.L.R.B. No. 146\\n\\n10 (2017).\\n\\n11 Employer petitions for review of the Board's holdings that the above\\n\\n12 single question constituted impermissible interrogation and that the discharges were\\n\\n13 motivated by antiunion animus, contending that those findings are not supported by\\n\\n14 substantial evidence; and it contends that the Board abused its discretion in ordering\\n\\n15 remedies for the discharged employees and ordering that the remedial notice be read\\n\\n16 aloud at a meeting of employees.\\n\\n17 The petition for review is granted to the extent that it challenges (1) the\\n\\n18 Board's rulings and orders with regard to (a) \\\"interrogation\\\" and (b) the discharge of\\n\\n\\n 2\\n\\f 1 an employee for insubordination, and (2) the order that the Board's remedial notice\\n\\n 2 be read aloud at a meeting of employees. In all other respects, the petition for review\\n\\n 3 is denied. The Board's cross-petition for enforcement is granted in all respects except\\n\\n 4 those in which the petition for review is granted.\\n\\n 5 MIGUEL A. ESCALERA, Jr., Hartford, Connecticut (Sheldon D.\\n 6 Myers, Kainen, Escalera & McHale, Hartford, Connecticut,\\n 7 on the brief), for Petitioner-Cross-Respondent.\\n\\n 8 DAVID A. SEID, Washington, D.C. (Peter B. Robb,General\\n 9 Counsel, John W. Kyle, Deputy General Counsel, Linda\\n10 Dreeben, Deputy Associate General Counsel, Julie Brock\\n11 Broido, Supervisory Attorney, National Labor Relations\\n12 Board, Washington, D.C., on the brief), for Respondent-Cross-\\n13 Petitioner.\\n\\n\\n\\n14 KEARSE, Circuit Judge:\\n\\n15 Petitioner-cross-respondent Bozzuto's Inc. (\\\"Bozzuto\\\") petitions for\\n\\n16 review of so much of an order of respondent-cross-petitioner National Labor\\n\\n17 Relations Board (\\\"NLRB\\\" or \\\"Board\\\"), see Bozzuto's, Inc., 365 N.L.R.B. No. 146 (2017),\\n\\n18 as (A) found Bozzuto committed unfair labor practices in violation of §§ 8(a)(1) and/or\\n\\n19 (3) of the National Labor Relations Act (the \\\"Act\\\"), 29 U.S.C. §§ 158(a)(1) and (3), in\\n\\n20 its treatment of two employees who were union supporters, by asking Todd McCarty\\n\\n21 \\\"what's going on with this union stuff,\\\" later discharging him for allegedly low\\n\\n\\n 3\\n\\f 1 productivity, and discharging Patrick Greichen for alleged insubordination in\\n\\n 2 refusing to attend a meeting to which he was summoned by management; and (B)\\n\\n 3 orders Bozzuto to reinstate Greichen, to provide Greichen and McCarty with backpay\\n\\n 4 and compensation for other losses, and to read the Board's remedial notice, detailing\\n\\n 5 Bozzuto's violations of the Act, aloud at a meeting of its employees. In support of its\\n\\n 6 petition, Bozzuto contends principally that substantial evidence did not support the\\n\\n 7 Board's findings that the single question to McCarty was coercive or that either\\n\\n 8 McCarty or Greichen was terminated because of antiunion animus or protected\\n\\n 9 activity, and that the Board abused its discretion in ordering Bozzuto to reinstate\\n\\n10 Greichen with backpay and to read the remedial order aloud to employees.\\n\\n11 The Board cross-petitions for enforcement of its order which--in addition\\n\\n12 to the above aspects challenged by Bozzuto-- found that Bozzuto violated the Act by\\n\\n13 announcing wage increases in conjunction with urging employees to decline to join\\n\\n14 a union; by maintaining a restrictive speech policy that conditioned continued\\n\\n15 employment for suspended employees on their written agreement not to discuss with\\n\\n16 coworkers terms of employment, including discipline; by disciplining Greichen for\\n\\n17 talking with other Bozzuto employees about conditions of employment; and by\\n\\n18 suspending McCarty for supposedly low productivity.\\n\\n\\n 4\\n\\f 1 For the reasons that follow, we grant Bozzuto's petition for review to the\\n\\n 2 extent that it challenges (1) the Board's rulings and orders with regard to the\\n\\n 3 \\\"interrogation\\\" of McCarty and the discharge of Greichen, and (2) the order that the\\n\\n 4 Board's remedial notice be read aloud at a meeting of employees. In all other\\n\\n 5 respects, the petition for review is denied. The Board's cross-petition for enforcement\\n\\n 6 is granted in all respects except those in which the petition for review is granted.\\n\\n\\n\\n\\n 7 I. BACKGROUND\\n\\n\\n\\n\\n 8 The observable events leading to these administrative proceedings,\\n\\n 9 despite some vagueness in the testimony as to their precise timing, are largely\\n\\n10 undisputed. Bozzuto operates wholesale warehouses in Connecticut for the\\n\\n11 distribution of food products, employing approximately 450 production workers in\\n\\n12 capacities such as loaders, forklift operators, and \\\"selectors.\\\" A selector's job includes\\n\\n13 receiving orders for food products, driving a motorized vehicle to the section in\\n\\n14 which the ordered products are stored, and loading the products onto portable\\n\\n15 platforms that are ultimately carried by truck to the customers.\\n\\n\\n\\n\\n 5\\n\\f 1 In order to evaluate selectors' productivity, Bozzuto attaches machine-\\n\\n 2 readable tags to each warehouse product and uses a computerized system to compare\\n\\n 3 the speed with which selectors complete their tasks against a standard time--which\\n\\n 4 the parties call the \\\"labor standard.\\\" The labor standards were established by Bozzuto\\n\\n 5 engineers after months of studies, in accordance with accepted engineering methods,\\n\\n 6 calculating average times needed to complete specific tasks. The resulting standards\\n\\n 7 are posted publicly on Bozzuto bulletin boards for the employees' information.\\n\\n 8 A Bozzuto selector whose performance exceeded the labor standard on\\n\\n 9 a weekly basis became eligible for added incentive pay; a selector whose performance\\n\\n10 failed, for a given week, to meet at least 95 percent of the labor standard was subject\\n\\n11 to potential discipline.\\n\\n12 McCarty and Greichen were employed at a Bozzuto warehouse as\\n\\n13 selectors. McCarty had frequently earned extra incentive pay for exceeding the labor\\n\\n14 standards. In August 2013, Bozzuto posted a commendation for his \\\"outstanding job\\n\\n15 selecting . . . food products\\\" and his \\\"expertise and dedication to always doing the\\n\\n16 right job!\\\" (Bozzuto's High Achievers, August 23-25, 2013, \\\"Todd McCarty\\\" (\\\"GREAT\\n\\n17 JOB, TODD!!!!\\\").)\\n\\n\\n\\n\\n 6\\n\\f 1 A. The events of mid-September through October 1, 2013\\n\\n 2 In September 2013, McCarty contacted the United Food and Commercial\\n\\n 3 Workers Union, Local 919 (the \\\"Union\\\"); shortly thereafter, he, Greichen, and two\\n\\n 4 other Bozzuto employees met with a Union representative. On Monday September\\n\\n 5 23, McCarty and Greichen began handing out union authorization cards to their\\n\\n 6 fellow production workers, urging them to sign up.\\n\\n 7 The effort to unionize Bozzuto employees did not long remain covert.\\n\\n 8 On September 26, an employee posted a message to Bozzuto's internal electronic\\n\\n 9 message board stating that union authorization cards were being distributed.\\n\\n10 McCarty had initially hoped the unionization effort would escape management's\\n\\n11 notice for at least the first few weeks; but it did not, and within the first week he chose\\n\\n12 to be open about his participation. By September's end, the Union had obtained 84\\n\\n13 signed authorization cards from Bozzuto employees.\\n\\n14 Bozzuto's management was generally aware in that first week that a\\n\\n15 union-organizing effort was under way. On Monday September 30, Bozzuto's Vice\\n\\n16 President of Human Resources Carl Koch posted a message stating that Bozzuto was\\n\\n17 \\\"aware of the current activity.\\\"\\n\\n\\n\\n\\n 7\\n\\f 1 On or about October 1, as McCarty exited a restroom near a Bozzuto\\n\\n 2 work area, he encountered Bozzuto's Senior Vice President Rick Clark, with whom\\n\\n 3 he had a good relationship. Clark asked, \\\"Hey, Todd, what's going on with this\\n\\n 4 Union stuff?\\\" McCarty replied, \\\"I'm not going to talk about it with you, Mr. Clark.\\\"\\n\\n 5 (Hearing Transcript (\\\"Tr.\\\") 485.) That was the end of the conversation.\\n\\n 6 On October 1, Bozzuto issued a written announcement that stated in\\n\\n 7 pertinent part as follows:\\n\\n 8 We have been advised by a number of our associates that\\n 9 the [Union] is attempting to unionize our associates and asked\\n10 them to sign a union card. The associates that came to us did so\\n11 out of concern for themselves and their fellow workers stating\\n12 that having a union is not in the best interest of Bozzuto[] or the\\n13 associates.\\n\\n14 ....\\n\\n15 We want all of our associates to understand that they are\\n16 not required to sign a union card. It's absolutely ok to say NO.\\n17 If anyone harasses you about that, tell them to stop and feel free\\n18 to seek our assistance.\\n\\n19 We do not need a union at Bozzuto[]. Unions do not\\n20 provide jobs, only successful companies can . . . .\\n\\n21 (Emphasis in original.) On the same day, Bozzuto posted a memorandum\\n\\n22 announcing that nearly all production workers would be receiving hourly pay\\n\\n\\n\\n 8\\n\\f 1 increases ranging from 50 cents to two dollars per hour, retroactive to September 29,\\n\\n 2 2013.\\n\\n 3 Also on October 1, 2013, Greichen was summoned to a meeting with\\n\\n 4 several members of Bozzuto's management team: Senior Vice President Clark,\\n\\n 5 Human Resources Vice President Koch, Associate Relations and Development\\n\\n 6 Manager Doug Vaughan, and Head of Security Bill Glass. Bozzuto maintains that the\\n\\n 7 meeting was called because Clark had been told by other employees that Greichen\\n\\n 8 was displaying erratic behavior and making various negative comments about\\n\\n 9 Bozzuto's labor standards being too stringent, complaining that they did not, in\\n\\n10 Greichen's view, allow enough time for employees to complete their assigned tasks.\\n\\n11 As reflected in a memorandum prepared by Vaughan from his notes of the meeting,\\n\\n12 Clark informed Greichen \\\"that several associates\\\" had \\\"commented on how his\\n\\n13 behavior had been increasingly more erratic and some hourly associates considered\\n\\n14 his behavior 'scary,'\\\" and that \\\"it was management's job to provide a safe and clean\\n\\n15 work environment for all associates\\\" and to address \\\"comments . . . made to\\n\\n16 management that raise a red flag.\\\"\\n\\n17 Greichen was warned against continuing his behavior and told he\\n\\n18 \\\"needed to stop disrupting the work environment by making negative comments in\\n\\n\\n 9\\n\\f 1 the aisles, such as[] being forced to work 20 hours per day or comments about\\n\\n 2 needing three legs to do the work here, in the hallway in front of his peers.\\\"\\n\\n\\n\\n\\n 3 B. The Discharge of Greichen on October 8\\n\\n 4 On October 8, 2013, Greichen complained first to his supervisors, and\\n\\n 5 thereafter to Bozzuto's then-Grocery Distribution Manager Jason Winans, that the\\n\\n 6 labor standard pertaining to his assigned tasks for the day had been unfairly\\n\\n 7 shortened, making timely completion of his work impossible. Winans's ensuing\\n\\n 8 memorandum summarizing his conversation with Greichen stated that Winans\\n\\n 9 \\\"attempt[ed] to calm Mr. Greichen down\\\" by reviewing with him the computer\\n\\n10 records as to individual assignments; but when Winans \\\"didn't see anything out of\\n\\n11 the ordinary,\\\"\\n\\n12 Patrick [Greichen] began telling me how he believes Bozzuto[]\\n13 cuts the standard time on assignments on days when the volume\\n14 is high in order to get more cases out of people and to pay them\\n15 less, in the process making them miserable. Patrick then told me\\n16 that he tells anybody and everybody he can that he believes we are\\n17 purposely changing the standards on a daily basis in order to screw the\\n18 associates. I told Patrick that I didn't believe any of this to be true\\n19 and that these were very serious accusations he was making.\\n\\n20 (Memorandum of Jason Winans dated October 9, 2013, as to October 8, 2013\\n\\n\\n\\n 10\\n\\f 1 accusations by Patrick Greichen (\\\"Winans Memorandum of Greichen's October 8\\n\\n 2 statements\\\") at 1 (emphases added)). As indicated in that memorandum, Winans\\n\\n 3 viewed the situation as problematic, and he promptly reported Greichen's accusations\\n\\n 4 to Clark and Vaughan.\\n\\n 5 Clark and Winans arranged for a 4:00 meeting on October 8 at which\\n\\n 6 Bozzuto industrial engineers James Wright and David Heatley could explain to\\n\\n 7 Greichen how the standard times for various tasks were determined and functioned\\n\\n 8 so that Greichen could see that the targets were not subject to manipulation. Bozzuto\\n\\n 9 maintains that it hoped both to educate and reassure Greichen and to prevent him\\n\\n10 from spreading misinformation to other employees.\\n\\n11 Winans then, as instructed by Clark, told Greichen of the scheduling of\\n\\n12 the meeting and its purpose, and said Greichen's presence was required. Despite\\n\\n13 Winans's repeated urging, Greichen refused to attend. He said he felt he was being\\n\\n14 harassed. Vaughan then joined Winans in attempting to persuade Greichen to attend\\n\\n15 the meeting. Vaughan said Greichen would not face discrimination or harassment\\n\\n16 or \\\"anything negative\\\" if he attended the meeting; Winans emphasized that the\\n\\n17 meeting was mandatory and that if Greichen did not attend, he would be suspended\\n\\n18 pending termination for insubordination. Greichen confirmed that he understood.\\n\\n\\n 11\\n\\f 1 There is no dispute that he was also informed the meeting would be attended by\\n\\n 2 industrial engineers.\\n\\n 3 Greichen nonetheless refused to attend. Bozzuto discharged him,\\n\\n 4 effective that day, citing his insubordination.\\n\\n\\n\\n\\n 5 C. The 2014 Suspension and Termination of McCarty\\n\\n 6 Following the October 8, 2013 discharge of Greichen, McCarty remained\\n\\n 7 involved in supporting the union-organizing effort and was one of the few remaining\\n\\n 8 active union supporters. His involvement with the Union had been well known to\\n\\n 9 Bozzuto's management since the first week of the campaign.\\n\\n10 In early January 2014, McCarty became aware that his reported\\n\\n11 productivity numbers for the week ending January 4 appeared to be unduly low, and\\n\\n12 he deduced that Bozzuto's computerized reporting system, in tracking his efficiency\\n\\n13 as compared to the labor standard, had failed to take account of his \\\"down time,\\\" i.e.,\\n\\n14 time when he properly was not on-the-clock. Down time, such as a supervisor-\\n\\n15 approved break or time needed for equipment repairs, does not count toward the\\n\\n16 total time the employee has taken to complete a task. Thus, failure to account for an\\n\\n\\n\\n\\n 12\\n\\f 1 employee's down time would make his performance appear to be less productive\\n\\n 2 than it actually was.\\n\\n 3 To verify his suspicion that the reporting system was not taking proper\\n\\n 4 account of his down time, McCarty began to take screen shots each week of the raw\\n\\n 5 data shown for him in the computer, in order to prove inaccuracies in the final\\n\\n 6 productivity reports. He complained to Winans about the discrepancies he observed\\n\\n 7 due to his missing down time. According to McCarty, Winans essentially\\n\\n 8 disregarded his complaint, saying \\\"If you wanted down time put in, you should have\\n\\n 9 made sure it was put in. . . . It is what it is.\\\" (Tr. 515.)\\n\\n10 In mid-January, McCarty spoke with his supervisor William Englehart\\n\\n11 to pursue his complaint about improper treatment of his down time. According to\\n\\n12 McCarty, Englehart told him not to worry about it (see id. at 516); but Bozzuto\\n\\n13 proceeded to suspend McCarty for five days on account of his supposedly low\\n\\n14 productivity numbers. McCarty refused to sign the Bozzuto write-up documenting\\n\\n15 this five-day suspension, arguing that the productivity numbers shown were\\n\\n16 inaccurate.\\n\\n17 McCarty then was away for a few weeks, in part on vacation, and he had\\n\\n18 coworkers take screen shots of his data for the week ending January 18. Their\\n\\n\\n 13\\n\\f 1 photographs showed that McCarty's originally recorded down time was thereafter\\n\\n 2 deleted, thereby lowering McCarty's productivity score.\\n\\n 3 On February 18, the day that McCarty returned, he was summoned to\\n\\n 4 a meeting with members of Bozzuto's management. He was told that his\\n\\n 5 performance for the week of January 11 was at 94 percent of the labor standard, and\\n\\n 6 that, as a result, he was being discharged. McCarty objected on the ground that the\\n\\n 7 productivity numbers were skewed, and he refused to sign the write-up documenting\\n\\n 8 his termination.\\n\\n 9 Shortly after his suspension, McCarty had contacted the NLRB Regional\\n\\n10 Office and had begun submitting his photographic evidence of the alterations relating\\n\\n11 to his productivity. On April 9, 2014, that Office sent Bozzuto a letter stating that\\n\\n12 McCarty's productivity data had been altered, and attached, inter alia, photographs\\n\\n13 for each of the weeks ending January 11 and 18, 2014, showing the records for\\n\\n14 McCarty before and after the alterations took place.\\n\\n15 McCarty had not submitted his photographic evidence to Bozzuto. After\\n\\n16 receiving the April 9 communication from the NLRB, Bozzuto initiated an internal\\n\\n17 investigation, led by industrial engineer Wright. As a result of this investigation,\\n\\n18 Bozzuto concluded on April 14, 2014, that McCarty's data had in fact been changed--\\n\\n\\n 14\\n\\f 1 adversely to McCarty--with respect to the weeks ending January 11 and January 18.\\n\\n 2 On May 14, 2014, it unconditionally offered McCarty reinstatement, plus\\n\\n 3 compensation for losses in earnings and benefits. McCarty declined reinstatement.\\n\\n\\n\\n\\n 4 D. The Administrative Proceedings\\n\\n 5 In October 2014, the NLRB's General Counsel, through its Regional\\n\\n 6 Director (collectively the \\\"General Counsel\\\"), issued a complaint alleging that Bozzuto\\n\\n 7 had violated §§ 8(a)(1) and/or (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3), by--to the\\n\\n 8 extent pertinent to the present petitions--(1) interrogating McCarty on or about\\n\\n 9 September 27, 2013; (2) implementing a work rule that prohibited disciplined\\n\\n10 employees from discussing the terms of their employment, including disciplinary\\n\\n11 measures, with other employees; (3) raising wages on October 1 in an attempt to\\n\\n12 discourage employees from joining the Union; (4) warning Greichen on October 1\\n\\n13 against engaging in activity protected by the Act; (5) discharging Greichen on October\\n\\n14 8 in retaliation for his previous conduct that was protected by the Act; and (6)\\n\\n15 suspending and discharging McCarty because of the company's antiunion animus.\\n\\n16 The matter was tried before administrative law judge (\\\"ALJ\\\") Raymond\\n\\n17 P. Green, who found against Bozzuto on each of the above charges and principally\\n\\n\\n 15\\n\\f 1 recommended the issuance of cease-and-desist orders and affirmative relief for\\n\\n 2 Greichen and McCarty.\\n\\n\\n\\n\\n 3 1. The Rulings and Recommendations of the ALJ\\n\\n 4 First, the ALJ considered Bozzuto's October 1, 2013 announcement of\\n\\n 5 retroactive pay raises for most of its production workers. There was clear evidence\\n\\n 6 that management had become aware of the union-organizing activity several days\\n\\n 7 earlier. The ALJ also noted an absence of evidence that such increases were given on\\n\\n 8 a regular basis or that the decision to implement these increases had been made\\n\\n 9 before Bozzuto became aware of the union- organizing activity. On the same day that\\n\\n10 Bozzuto announced the pay raises, it announced that it \\\"was aware that the Union\\n\\n11 had obtained a list of the warehouse employees,\\\" and it \\\"encouraged employees to\\n\\n12 refrain from signing union authorization cards and stated that 'we do not need a\\n\\n13 union at Bozzuto[] . . . .'\\\" 365 N.L.R.B. No. 146, slip op. at 15. The ALJ found that\\n\\n14 \\\"[t]he notices posted simultaneously on October 1, 2013, leave no doubt that the pay\\n\\n15 increases were motivated by the fact that the Company became aware that the Union\\n\\n16 was engaged in organizing activity,\\\" and that the announcement of the raises violated\\n\\n17 § 8(a)(1) of the Act. Id. at 16 (emphasis added).\\n\\n\\n 16\\n\\f 1 As to Bozzuto's treatment of Greichen on October 1, the ALJ found that\\n\\n 2 summoning him to a meeting and criticizing him because of employee reports that\\n\\n 3 he was complaining to other workers about how the production standards were\\n\\n 4 resulting in long hours and affecting, inter alia, their rights to receive premium pay,\\n\\n 5 interfered with Greichen's protected right to engage in concerted activity within the\\n\\n 6 meaning of § 7 of the Act. See id. at 16-17; see also id. at 17 (finding that the warning\\n\\n 7 of Greichen \\\"at virtually the same time that the Company notified employees that\\n\\n 8 they should avoid union activity\\\" suggests that \\\"management more than likely\\n\\n 9 believed that he was among the employees who most likely would support a union\\\").\\n\\n10 The ALJ also found that Bozzuto's general policy of conditioning continued\\n\\n11 employment for suspended employees on their agreement not to discuss terms of\\n\\n12 employment, including discipline, with their coworkers (Bozzuto's \\\"restrictive speech\\n\\n13 policy\\\") violated § 8(a)(1) of the Act.\\n\\n14 As to Clark's asking McCarty \\\"what's going on with this union stuff,\\\" the\\n\\n15 ALJ found as follows:\\n\\n16 While this single act of interrogation might be viewed as an\\n17 offhand and somewhat innocuous comment, the fact is that this\\n18 event occurred at or near the same time of the unlawfully motivated\\n19 pay increase and the unlawful discrimination against Greichen. I\\n\\n\\n 17\\n\\f 1 therefore shall conclude that this interrogation, in the\\n 2 circumstances, violated Section 8(a)(1) of the Act.\\n\\n 3 365 N.L.R.B. No. 146, slip op. at 18 (emphases added).\\n\\n 4 The ALJ also found that the discharge of Greichen on October 8 violated\\n\\n 5 the Act, rejecting Bozzuto's contention that he had been discharged solely for\\n\\n 6 insubordination:\\n\\n 7 Even taking [Bozzuto's] premise that Greichen's refusal to attend\\n 8 a meeting constituted insubordination, . . . . Greichen was told to\\n 9 go to a meeting to discuss his complaints about productivity\\n10 standards because [Bozzuto] was concerned that he was talking\\n11 about them and misinforming his fellow employees. Thus, the\\n12 demand that he attend this meeting was inexplicably [sic] bound up to\\n13 the Company's earlier unlawful warning on October 1, which was issued\\n14 because of Greichen's protected concerted activity. One follows from\\n15 the other and the October 8 meeting would not have taken place but for\\n16 the earlier interference with Greichen's right to talk to his coworkers\\n17 about their collective terms and conditions of employment.\\n\\n18 Id. at 17 (emphases added).\\n\\n19 Finally, the ALJ found that Bozzuto's suspension and discharge of\\n\\n20 McCarty in 2014 were motivated by antiunion animus, noting \\\"that McCarty was the\\n\\n21 leading union activist among the employees after October 8,\\\" that Bozzuto \\\"was fully\\n\\n22 aware of his union activity,\\\" and that \\\"the ostensible reason for his suspension and\\n\\n23 discharge was manifestly false.\\\" Id. at 18; see also id. (noting that Bozzuto \\\"ha[d] failed\\n\\n\\n\\n 18\\n\\f 1 to show that it would have taken these actions apart from McCarty's union activity\\\").\\n\\n 2 The ALJ concluded that the General Counsel had established by a preponderance of\\n\\n 3 the evidence that Bozzuto's suspension and discharge of McCarty violated §§ 8(a)(1)\\n\\n 4 and (3) of the Act.\\n\\n 5 In light of his findings as to these violations, the ALJ recommended that\\n\\n 6 Bozzuto be ordered to cease and desist from such conduct, that it offer reinstatement\\n\\n 7 to Greichen and take affirmative steps to make Greichen and McCarty whole for any\\n\\n 8 losses resulting from Bozzuto's violations of their rights, and that it post notice of the\\n\\n 9 Board's findings and remedial order.\\n\\n10 However, the ALJ rejected the General Counsel's request for a\\n\\n11 recommendation that Bozzuto be ordered to read such an order aloud to its\\n\\n12 assembled employees. The ALJ recognized that such a public reading is an\\n\\n13 \\\"'extraordinary remed[y],'\\\" 365 N.L.R.B. No. 146, slip op. at 19 (quoting Federated\\n\\n14 Logistics & Operations, 340 N.L.R.B. 255, 256-57 (2003)). And while noting that\\n\\n15 Bozzuto's violations were not trivial, the ALJ concluded that they were \\\"not . . .\\n\\n16 numerous, pervasive or outrageous,\\\" and there had been no showing that Bozzuto\\n\\n17 had violated the Act in the past or that it was likely to do so again in the future. 365\\n\\n18 N.L.R.B. No. 146, slip op. at 19.\\n\\n\\n 19\\n\\f 1 2. The Decision of the Board\\n\\n 2 A three-member panel of the Board unanimously adopted the ALJ's\\n\\n 3 findings that Bozzuto engaged in unfair labor practices on October 1, 2013, in its\\n\\n 4 announcement of wage increases and its restrictive speech policy--findings to which\\n\\n 5 Bozzuto had not objected--and in 2014 by suspending and discharging McCarty. As\\n\\n 6 discussed below, the ALJ's other findings were adopted by a 2-1 vote of the Board,\\n\\n 7 with the Chairman dissenting principally from the findings that Bozzuto violated the\\n\\n 8 Act in questioning McCarty (see Part II.B.1. below) and in discharging Greichen (see\\n\\n 9 Part II.C. below). The Board also, by a 2-1 vote with the Chairman dissenting,\\n\\n10 modified the ALJ's recommended remedy by requiring that the Board's remedial\\n\\n11 notice be read aloud at a meeting of employees by Clark or by a Board member in\\n\\n12 Clark's presence (see Part II.D. below).\\n\\n\\n\\n\\n13 II. DISCUSSION\\n\\n\\n\\n\\n14 Bozzuto in its petition for review contends principally (A) that\\n\\n15 substantial evidence does not support the Board's findings that Clark's single\\n\\n16 question to McCarty constituted an unlawful interrogation or that Bozzuto's\\n\\n\\n 20\\n\\f 1 discharges of Greichen and McCarty were either punishment for statutorily protected\\n\\n 2 activity or motivated by antiunion animus; and (B) that neither Bozzuto's conduct nor\\n\\n 3 its history warrants the extraordinary remedy of ordering that the Board's remedial\\n\\n 4 notice be read aloud to Bozzuto's employees.\\n\\n 5 The Board petitions for enforcement of its findings in full, either for lack\\n\\n 6 of timely objection by Bozzuto, or on the merits, i.e., contending\\n\\n 7 # that its decision upholding two findings and recommendations\\n 8 of the ALJ--that Bozzuto violated § 8(a)(1) of the Act (a) by announcing\\n 9 and implementing wage increases in response to the union-organizing\\n10 activity, and (b) by its restrictive speech policy conditioning continued\\n11 employment for disciplined employees on their refraining from\\n12 discussing their discipline, etc., with coworkers--should be summarily\\n13 enforced because Bozzuto did not object to those ALJ findings before the\\n14 Board, see 29 U.S.C. § 160(e) (absent extraordinary circumstances, \\\"[n]o\\n15 objection that has not been urged before the Board . . . shall be\\n16 considered by the court\\\");\\n\\n17 # that two other Board findings--that Bozzuto violated § 8(a)(1) of\\n18 the Act by warning Greichen not to discuss the terms of his employment\\n19 with other Bozzuto employees (a finding that Bozzuto no longer\\n20 challenges (see Bozzuto reply brief in support of petition for review\\n21 at 7-8)), and violated §§ 8(a)(1) and (3) by suspending McCarty--should\\n22 be summarily enforced because Bozzuto's opening brief contains no\\n23 challenges to those findings or the related orders, see, e.g., Fed. R. App.\\n24 P. 28(a)(8)(A) (\\\"appellant's brief must contain . . . appellant's contentions\\n25 and the reasons for them, with citations to the authorities and parts of\\n26 the record on which the appellant relies\\\"); and\\n\\n\\n\\n\\n 21\\n\\f 1 # that the Board's findings that Bozzuto violated § 8(a)(1) by\\n 2 interrogating McCarty and discharging Greichen, and violated §§ 8(a)(1)\\n 3 and (3) by discharging McCarty, are supported by substantial evidence.\\n\\n 4 The Board seeks enforcement of its entire remedial order, including the requirement\\n\\n 5 of a public reading of the findings and the order to Bozzuto's employees, as within\\n\\n 6 its broad discretion.\\n\\n 7 In light of 29 U.S.C. § 160(e) and Fed. R. App. P. 28(a)(8)(A), the findings\\n\\n 8 and orders that Bozzuto did not timely challenge will be summarily enforced.\\n\\n 9 For the reasons that follow, we grant Bozzuto's petition with respect to\\n\\n10 the questioning of McCarty and the discharge of Greichen, and the remedial orders\\n\\n11 associated with those rulings, and with respect to the order that the Board's remedial\\n\\n12 notice be read aloud to Bozzuto employees. In all other respects, we grant the Board's\\n\\n13 petition for enforcement.\\n\\n\\n\\n\\n14 A. The National Labor Relations Act\\n\\n15 Section 7 of the Act provides, as a fundamental matter, that employees\\n\\n16 of an employer covered by the Act\\n\\n17 shall have the right to self-organization, to form, join, or assist\\n18 labor organizations, to bargain collectively through\\n19 representatives of their own choosing, and to engage in other\\n\\n\\n 22\\n\\f 1 concerted activities for the purpose of collective bargaining or\\n 2 other mutual aid or protection.\\n\\n 3 29 U.S.C. § 157. Section 8(a) of the Act provides, in pertinent part, that \\\"[i]t shall be\\n\\n 4 an unfair labor practice for an employer--\\n\\n 5 (1) to interfere with, restrain, or coerce employees in the\\n 6 exercise of the rights guaranteed in section 157 of [Title 29 U.S.C.],\\n\\n 7 29 U.S.C. § 158(a)(1) (emphases added), or\\n\\n 8 (3) by discrimination in regard to hire or tenure of\\n 9 employment or any term or condition of employment to encourage\\n10 or discourage membership in any labor organization,\\n\\n11 29 U.S.C. § 158(a)(3) (emphases added).\\n\\n\\n\\n\\n12 1. Discipline and Discharge\\n\\n13 An employer violates §§ 8(a)(1) and (3) of the Act by disciplining or\\n\\n14 discharging an employee for engaging in union activity or other section 7 conduct.\\n\\n15 See, e.g., NLRB v. Transportation Management Corp., 462 U.S. 393, 397-98 (1983)\\n\\n16 (\\\"Transportation Management\\\"), abrogated on other grounds by Director, Office of Workers'\\n\\n17 Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994). \\\"Under\\n\\n18 these provisions it is undisputed that if the employer fires an employee for having\\n\\n19 engaged in union activities and has no other basis for the discharge, or if the reasons\\n\\n\\n 23\\n\\f 1 that he proffers are pretextual, the employer commits an unfair labor practice.\\\"\\n\\n 2 Transportation Management, 462 U.S. at 398 (emphasis added).\\n\\n 3 However, while the Act \\\"makes unlawful the discharge of a worker\\n\\n 4 because of union activity, . . . employers retain the right to discharge workers for any\\n\\n 5 number of other reasons unrelated to the employee's union activities.\\\" Id. at 394. An\\n\\n 6 employer \\\"does not violate the NLRA . . . if any anti-union animus that he might have\\n\\n 7 entertained did not contribute at all to an otherwise lawful discharge for good cause.\\\"\\n\\n 8 Id. at 398. For example, \\\"insubordination, disobedience or disloyalty is adequate\\n\\n 9 cause for discharge . . . .\\\" NLRB v. Local Union No. 1229, International Brotherhood of\\n\\n10 Electrical Workers, 346 U.S. 464, 475 (1953). And the Act expressly provides that\\n\\n11 [n]o order of the Board shall require the reinstatement of any\\n12 individual as an employee who has been suspended or\\n13 discharged, or the payment to him of any back pay, if such\\n14 individual was suspended or discharged for cause.\\n\\n15 29 U.S.C. § 160(c).\\n\\n16 When the General Counsel files a complaint alleging that an employee\\n\\n17 was discharged because of his union activities and the employer counters that it had\\n\\n18 an unrelated, legitimate motive for its decision, \\\"Wright Line analysis\\\" is applied, see\\n\\n19 Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied\\n\\n\\n\\n 24\\n\\f 1 455 U.S. 989 (1982); Transportation Management, 462 U.S. at 404. Under Wright Line\\n\\n 2 analysis, the initial question is whether the General Counsel has carried his \\\"burden\\n\\n 3 of persuading the Board that an anti-union animus contributed to the employer's\\n\\n 4 decision to discharge [the] employee, a burden that does not shift\\\"; but if that burden\\n\\n 5 has been carried, \\\"the employer, even if it failed to meet or neutralize the General\\n\\n 6 Counsel's showing, c[an] avoid the finding that it violated the statute by\\n\\n 7 demonstrating by a preponderance of the evidence that the worker would have been\\n\\n 8 fired even if he had not been involved with the Union.\\\" Id. at 395; see id. at 401-02\\n\\n 9 (deferring to the Board's interpretation of the Act as designating the employer's\\n\\n10 assertion of a purely union-unrelated motive \\\"as an affirmative defense that the\\n\\n11 employer has the burden of sustaining\\\"). In effect, under this sequence, \\\"'[i]nitially,\\n\\n12 the General Counsel must establish a prima facie case that protected conduct was a\\n\\n13 motivating factor in the employer's decision to fire. The burden then shifts to the\\n\\n14 employer to show, as an affirmative defense, that the discharge would have occurred\\n\\n15 in any event and for valid reasons.'\\\" NLRB v. Starbucks Corp., 679 F.3d 70, 80 (2d Cir.\\n\\n16 2012) (quoting NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 957 (2d Cir. 1988) (\\\"S.E.\\n\\n17 Nichols\\\") (other internal quotation marks omitted), cert. denied, 490 U.S. 1108 (1989)).\\n\\n18\\n\\n\\n 25\\n\\f 1 \\\"[T]he Board may infer [an employer's] discriminatory motive from\\n\\n 2 circumstantial evidence,\\\" Abbey's Transportation Services, Inc. v. NLRB, 837 F.2d 575,\\n\\n 3 579 (2d Cir. 1988); see also NLRB v. Windsor Industries, Inc., 730 F.2d 860, 863 (2d Cir.\\n\\n 4 1984), which may include the employer's \\\"knowledge of the employees' union\\n\\n 5 activities,\\\" the timing of the discharge, or other antiunion activity by the employer,\\n\\n 6 S.E. Nichols, 862 F.2d at 957.\\n\\n\\n\\n\\n 7 2. Interrogation\\n\\n 8 While § 8(a)(1) of the Act prohibits interference with, inter alia, an\\n\\n 9 employee's interest in joining a union, employers nonetheless have a First\\n\\n10 Amendment right to engage in communications with employees about union activity,\\n\\n11 see, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969); such communications do\\n\\n12 not constitute unfair labor practices so long as they \\\"contain[] no threat of reprisal or\\n\\n13 force or promise of benefit,\\\" 29 U.S.C. § 158(c); see, e.g., NLRB v. Montgomery Ward &\\n\\n14 Co., 192 F.2d 160, 163 (2d Cir. 1951) (\\\"inquiries made by [a] manager concerning what\\n\\n15 was being done in behalf of the union\\\"-- even in conjunction with \\\"statements as to\\n\\n16 his not liking the union\\\"--were not unlawful \\\"to the extent that they constituted no\\n\\n\\n\\n 26\\n\\f 1 threat or intimidation, or promise of favor or benefit in return for resistance to the\\n\\n 2 union\\\").\\n\\n 3 An employer's questioning of an employee will, however, amount to a\\n\\n 4 violation of § 8(a)(1) if \\\"either the words themselves or the context in which they are\\n\\n 5 used . . . suggest an element of coercion or interference.\\\" Rossmore House, 269 N.L.R.B.\\n\\n 6 1176, 1177 (1984) (internal quotation marks omitted), enforced sub nom. Hotel Employees\\n\\n 7 Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). But \\\"'the realities of the workplace'\\\"\\n\\n 8 require recognition that\\n\\n 9 \\\"[b]ecause production supervisors and employees often work\\n10 closely together, one can expect that during the course of the\\n11 workday they will discuss a range of subjects of mutual interest,\\n12 including ongoing unionization efforts.\\\"\\n\\n13 Rossmore House, 269 N.L.R.B. at 1177 (quoting Graham Architectural Products v. NLRB,\\n\\n14 697 F.2d 534, 541 (3d Cir. 1983) (\\\"Graham\\\")). \\\"'To hold that any'\\\" and every \\\"'instance\\n\\n15 of casual questioning concerning union sympathies violates the Act'\\\" would thus\\n\\n16 \\\"'ignore[] the realities.'\\\" Rossmore House, 269 N.L.R.B. at 1177 (quoting Graham).\\n\\n17 Accordingly, an interrogation that is \\\"not itself threatening[] is not held\\n\\n18 to be an unfair labor practice unless it meets certain fairly severe standards,\\\" Bourne\\n\\n19 v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) (\\\"Bourne\\\"). The factors to be considered in\\n\\n\\n\\n 27\\n\\f 1 determining whether questioning is threatening or coercive include\\n\\n 2 (1) The background, i.e., is there a history of employer\\n 3 hostility and discrimination?\\n\\n 4 (2) The nature of the information sought, e.g., did the\\n 5 interrogator appear to be seeking information on which to base\\n 6 taking action against individual employees?\\n\\n 7 (3) The identity of the questioner, i.e., how high was he in\\n 8 the company hierarchy?\\n\\n 9 (4) Place and method of interrogation, e.g., was employee\\n10 called from work to the boss's office? Was there an atmosphere of\\n11 'unnatural formality'?\\n\\n12 (5) Truthfulness of the reply.\\n\\n13 Id.; see, e.g., Rossmore House, 269 N.L.R.B. at 1178 n.20 (considering the above Bourne\\n\\n14 factors); Regal Recycling, Inc., 329 N.L.R.B. 355, 365 (1999) (deeming employer's\\n\\n15 inquiries coercive in part because employees gave false answers or failed to respond);\\n\\n16 Town & Country Supermarkets, 340 N.L.R.B. 1410, 1423-24 (2004) (deeming employer's\\n\\n17 inquiries coercive in part because employee gave responses that were evasive); see also\\n\\n18 Vista Del Sol Health Services, Inc., 363 N.L.R.B. No. 135, slip op. at 17 (2016)\\n\\n19 (considering also \\\"the timing of the interrogation and whether the interrogated\\n\\n20 employees are open and active union supporters\\\"); Gardner Engineering, Inc., 313\\n\\n21 N.L.R.B. 755, 755 (1994) (deeming employer questions coercive in part because the\\n\\n\\n 28\\n\\f 1 employee was not \\\"an open and active union supporter at the time of the\\n\\n 2 interrogation\\\"), enforced as modified on other grounds, 115 F.3d 636 (9th Cir. 1997).\\n\\n 3 In sum, the Bourne factors \\\"are not to be mechanically applied,\\\" Rossmore\\n\\n 4 House, 269 N.L.R.B. at 1178 n.20; and in order to determine whether questioning\\n\\n 5 constituted an unfair labor practice, the Board assesses the \\\"totality of the\\n\\n 6 circumstances,\\\" i.e., it considers \\\"whether under all the circumstances the\\n\\n 7 interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed\\n\\n 8 by the Act,\\\" id. at 1178 & n.20.\\n\\n\\n\\n\\n 9 3. Standards of Decision\\n\\n10 Section 10(c) of the Act requires that the Board hear evidence on claims\\n\\n11 of unfair labor practices and grant relief if it finds such claims established by a\\n\\n12 \\\"preponderance\\\" of the evidence. 29 U.S.C. § 160(c). Sections 10(e) and 10(f) of the\\n\\n13 Act, 29 U.S.C. §§ 160(e) and (f), allow petitions to the relevant court of appeals by,\\n\\n14 respectively, the Board for enforcement of its order and the respondent in opposition.\\n\\n15 Each of those sections provides that on such review, the \\\"findings of the Board with\\n\\n16 respect to questions of fact if supported by substantial evidence on the record\\n\\n17 considered as a whole shall\\\" \\\"be conclusive,\\\" 29 U.S.C. §§ 160(e) and (f). In this\\n\\n\\n 29\\n\\f 1 respect,\\n\\n 2 [s]ubstantial evidence is more than a mere scintilla. It means such\\n 3 relevant evidence as a reasonable mind might accept as adequate\\n 4 to support a conclusion. . . . Accordingly, it must do more than\\n 5 create a suspicion of the existence of the fact to be established.\\n\\n 6 Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (internal quotation marks\\n\\n 7 omitted).\\n\\n 8 Further, proper assessment of \\\"[t]he substantiality of evidence must take\\n\\n 9 into account whatever in the record fairly detracts from its weight.\\\" Id. at 488 (emphasis\\n\\n10 added). However, when choosing between \\\"two fairly conflicting views,\\\" we will not\\n\\n11 overturn the Board's fact finding, even if we would have come to \\\"a different choice\\n\\n12 had the matter been before [us] de novo.\\\" NLRB v. G & T Terminal Packaging Co., 246\\n\\n13 F.3d 103, 114 (2d Cir. 2001) (internal quotation marks omitted). \\\"[R]eversal based\\n\\n14 upon a factual question will only be warranted if, after looking at the record as a\\n\\n15 whole, we are left with the impression that no rational trier of fact could reach the\\n\\n16 conclusion drawn by the Board.\\\" NLRB v. Katz's Delicatessen of Houston Street, Inc., 80\\n\\n17 F.3d 755, 763 (2d Cir. 1996) (internal quotation marks omitted).\\n\\n18 We review the Board's conclusions of law \\\"to ensure that they have a\\n\\n19 reasonable basis,\\\" and in so doing, we \\\"afford the Board a degree of legal leeway.\\\"\\n\\n\\n\\n 30\\n\\f 1 NLRB v. Caval Tool Division, 262 F.3d 184, 188 (2d Cir. 2001) (internal quotation marks\\n\\n 2 omitted). We \\\"will uphold the Board's legal determinations 'if not arbitrary and\\n\\n 3 capricious.'\\\" NLRB v. Consolidated Bus Transit, Inc., 577 F.3d 467, 474 (2d Cir. 2009)\\n\\n 4 (\\\"Consolidated Bus\\\") (quoting Cibao Meat Products, Inc. v. NLRB, 547 F.3d 336, 339 (2d\\n\\n 5 Cir. 2008)).\\n\\n\\n\\n\\n 6 B. McCarty\\n\\n 7 Bozzuto challenges the Board's rulings that (1) Clark's single question to\\n\\n 8 McCarty, and (2) the 2014 discharge of McCarty, violated the Act. We find merit in\\n\\n 9 the first challenge, but not the second.\\n\\n\\n\\n\\n10 1. Interrogation\\n\\n11 The ALJ noted that Clark's \\\"what's going on with this union stuff\\\"\\n\\n12 question to McCarty, was a \\\"single act of interrogation [that] might be viewed as an\\n\\n13 offhand and somewhat innocuous comment\\\"; but he found that it violated § 8(a)(1)\\n\\n14 simply because it \\\"occurred at or near the same time of the unlawfully motivated pay\\n\\n15 increase and the unlawful discrimination against Greichen.\\\" 365 N.L.R.B. No. 146,\\n\\n16 slip op. at 18. The Board majority, after considering, inter alia, Rossmore House and the\\n\\n\\n 31\\n\\f 1 Bourne factors and the totality of the circumstances, see id. at 2-3, agreed with the ALJ.\\n\\n 2 It stated as follows:\\n\\n 3 Clark was a high-ranking official; he initiated a conversation in\\n 4 which he questioned an active, but not yet open, union supporter;\\n 5 McCarty . . . did not answer Clark's question; and the inquiry\\n 6 occurred at or near the same time as [Bozzuto's] unlawful\\n 7 discrimination against union supporter Patrick Greichen,\\n 8 including his disciplinary warning and discharge, and its\\n 9 unlawfully motivated pay increase to employees.\\n\\n10 Id. at 2 (footnotes omitted). The majority also found that \\\"despite McCarty's 'good\\n\\n11 relationship' with Clark, it is telling that McCarty did not feel comfortable telling\\n\\n12 Clark 'what was going on' with the organizing campaign.\\\" Id. at 2 n.6.\\n\\n13 The Board Chairman, dissenting--also considering Rossmore House and\\n\\n14 the Bourne factors and the totality of the circumstances, see id. at 7-9--disagreed,\\n\\n15 concluding that only one Bourne factor, the fact that Clark was an officer, was any\\n\\n16 indicator of coercion, see id. at 8. The dissent noted, inter alia, that McCarty was\\n\\n17 known to Bozzuto management to be a union supporter, and that \\\"Clark's question\\n\\n18 was no more objectionable than the manager's question found lawful in Rossmore\\n\\n19 House itself ('What is this about a union?'), and it was clearly less intrusive than the\\n\\n20 owner's inquiry also found lawful in Rossmore House, where the owner asked an\\n\\n\\n\\n 32\\n\\f 1 employee why he was 'trying to get a union in here.'\\\" Id. at 8 n.7 (quoting Rossmore\\n\\n 2 House, 269 N.L.R.B. at 1178) (emphases in dissent)).\\n\\n 3 Our review of the record persuades us that some of the majority's\\n\\n 4 findings with regard to the Clark question are not supported by the record as a\\n\\n 5 whole. First, neither the record nor certain other findings made by the majority\\n\\n 6 support its view that Clark's question was coercive in part because it was asked when\\n\\n 7 McCarty was \\\"not yet [an] open[] union supporter.\\\" 365 N.L.R.B. No. 146, slip op.\\n\\n 8 at 2. While the General Counsel's complaint had alleged that Clark's question to\\n\\n 9 McCarty occurred on September 27, the Board majority refused to accept that date,\\n\\n10 stating that \\\"the record and the judge's decision as a whole indicate that it occurred\\n\\n11 about October 1.\\\" Id. at 1 n.5. Yet the majority found that \\\"the campaign began on\\n\\n12 Monday, September 23,\\\" id. at 2 n.5; that Bozzuto's \\\"management became aware of\\n\\n13 McCarty's involvement from another employee early in the organizing campaign,\\\"\\n\\n14 id. at 2 n.10; see, e.g., id. at 1 n.4 (\\\"[t]he record shows that sometime before October 1,\\n\\n15 an employee told . . . Clark[] of McCarty's involvement in the organization efforts\\\");\\n\\n16 and that McCarty himself testified that \\\"' within that first week I was not secret about [the\\n\\n17 union campaign] at all,'\\\" id. at 2 n.10 (quoting Tr. 693 (emphasis ours)). The majority's\\n\\n18 view that \\\"this testimony\\\"--by McCarty himself--\\\"does not establish that McCarty was\\n\\n 33\\n\\f 1 open at the time of the interrogation,\\\" 365 N.L.R.B. No. 146, slip op. at 2 n.10 (emphasis\\n\\n 2 added), is at odds with the fact that the Union campaign began on September 23 and\\n\\n 3 the majority's own insistence that the interrogation occurred on October 1, which was\\n\\n 4 the ninth day of the campaign. And while the majority was entitled to its view that\\n\\n 5 management's \\\"aware[ness] of McCarty's involvement from another employee early\\n\\n 6 in the organizing campaign\\\" did not necessarily \\\"equate[] to openness on McCarty's\\n\\n 7 part,\\\" id., the majority's refusal to accept as true McCarty's own statement that he\\n\\n 8 became open--\\\"'not secret . . . at all'\\\"--\\\"'within that first week,'\\\" id. (quoting Tr. 693),\\n\\n 9 strikes us as arbitrary and capricious. The majority's view that \\\"the record does not\\n\\n10 support the conclusion that McCarty was an open union supporter at the time of the\\n\\n11 interrogation,\\\" 365 N.L.R.B. No. 146, slip op. at 2 (emphasis in original), is itself\\n\\n12 contradicted by the record.\\n\\n13 Second, the generality of Clark's question did not suggest that\\n\\n14 management sought to identify or discipline employees because they were union\\n\\n15 sympathizers; it was no more intrusive than the question asked by the manager in\\n\\n16 Rossmore House, \\\"What is this about a union,\\\" which was found not to violate the Act.\\n\\n17 The majority, without attempting any explanation as to why the language of Clark's\\n\\n18 question, \\\"what's going on with this union stuff,\\\" was in any way significantly\\n\\n\\n 34\\n\\f 1 different, cited the fact that the employer in Rossmore House \\\"had not\\\" committed any\\n\\n 2 unfair labor practices before the questioning occurred. See 365 N.L.R.B. No. 146, slip\\n\\n 3 op. at 3 n.11. But it is hardly clear that this was not also true of the present case. The\\n\\n 4 only unfair labor practices by Bozzuto in the fall of 2013 that are sustained here\\n\\n 5 occurred on October 1: the pay raise, the restrictive speech policy of continuing to\\n\\n 6 employ suspended employees only if they would agree not to discuss their discipline,\\n\\n 7 etc., with coworkers, and the warning to Greichen to stop talking to his coworkers\\n\\n 8 about conditions of employment. If the majority was correct in its finding that\\n\\n 9 McCarty was not an open union supporter at the time of Clark's question, that\\n\\n10 question would had to have been asked prior to September 30; and at that time\\n\\n11 Bozzuto--indistinguishably from employer in Rossmore House--would not have\\n\\n12 committed any prior unfair labor practice.\\n\\n13 We also note that McCarty testified that the Clark question occurred in\\n\\n14 the second week of the Union campaign (see Tr. 485). The campaign had begun on\\n\\n15 Monday September 23. While the majority stated that \\\"[i]t goes without saying that\\n\\n16 the week after the September 23 start date of the campaign was the week of October 1,\\\"\\n\\n17 365 N.L.R.B. No. 146, slip op. at 2 n.5 (emphasis added)--a convenient date because\\n\\n18 that was the date on which there were confirmable unfair labor practices--in fact that\\n\\n\\n 35\\n\\f 1 second week began on Monday September 30, a date that itself may, consistent with\\n\\n 2 McCarty's testimony, have been the day of Clark's question. September 30, however,\\n\\n 3 was prior to Bozzuto's commission of any unfair labor practice.\\n\\n 4 Further, we do not find that the record supports the majority's view that\\n\\n 5 McCarty's response to Clark's question indicates that the question was coercive on the\\n\\n 6 basis that \\\"McCarty did not feel comfortable telling Clark 'what was going on' with\\n\\n 7 the organizing campaign,\\\" id. at 2 n.6. As the Board has noted in the past, \\\"[i]t is\\n\\n 8 actually none of [management's] lawful business as to [an employee's] evaluation of\\n\\n 9 union activities,\\\" Medical Center of Ocean County, 315 N.L.R.B. 1150, 1154 (1994)\\n\\n10 (\\\"Medical Center\\\"), and McCarty's response apparently so recognized. While the\\n\\n11 majority again saw this case as different from Rossmore House, stating that the\\n\\n12 employee there \\\"responded to the inquiry ['What is this about a union,'] candidly and\\n\\n13 without hesitation,\\\" 365 N.L.R.B. No. 146, slip op. at 3 n.11, the record here contains\\n\\n14 no indication that McCarty had any hesitance whatever in saying \\\"I'm not going to\\n\\n15 talk about it with you, Mr. Clark\\\" (Tr. 485). That answer provided no information\\n\\n16 that was responsive to the question, but it also evinced no discomfort in telling Clark,\\n\\n17 in a most civil way, that the union activity was none of Clark's lawful business.\\n\\n18 McCarty's response cannot be viewed as an indicium of coercion.\\n\\n\\n 36\\n\\f 1 We conclude, as did the dissent, that the record supports the conclusion\\n\\n 2 that all of the Bourne factors, except Clark's position as a company officer, point\\n\\n 3 toward a finding that Clark's question was not coercive and did not violate the Act.\\n\\n 4 There is no evidence in the record as to any history whatever prior to this union-\\n\\n 5 organizing effort of any animosity of Bozzuto toward unions. Indeed, the ALJ\\n\\n 6 expressly found that Bozzuto had not violated the Act in the past (and he saw no\\n\\n 7 indication that it was likely to do so in the future). See 365 N.L.R.B. No. 146, slip op.\\n\\n 8 at 19. The question was asked by Clark during a chance encounter as McCarty was\\n\\n 9 leaving a restroom. It was asked of an employee who was, by then, an open\\n\\n10 supporter of the union. The question was entirely general, the sort of question that\\n\\n11 might pass between any two employees, regardless of rank; it did not ask about\\n\\n12 individuals, and it carried no portent of discipline. It produced McCarty's direct\\n\\n13 response that he would not discuss the matter with Clark. And no further questions\\n\\n14 were asked.\\n\\n15 The Board majority in finding Clark's question coercive cited nearly two\\n\\n16 dozen cases. All of the cases in which a question was found to be coercive involved\\n\\n17 either supervisors calling employees into their offices for closed-door exploration of\\n\\n18 the identities of union supporters, or repeated or insistent questioning, or threats of\\n\\n\\n 37\\n\\f 1 discipline, or imposition of more severe working conditions, or threats to close or\\n\\n 2 move the company, or a backdrop of numerous unfair labor practices. See, e.g., Seton\\n\\n 3 Co., 332 N.L.R.B. 979, 981-82 (2000) (in questioning that took place \\\"against a\\n\\n 4 background of numerous other unfair labor practices including threats of plant\\n\\n 5 closure . . . and more onerous working conditions,\\\" supervisor interrogated employee\\n\\n 6 as to whether he had been \\\"talking about the Union\\\" and threatened the employee\\n\\n 7 that \\\"if he was caught talking about the Union he could be fired\\\"); Acme Bus Corp., 320\\n\\n 8 N.L.R.B. 458, 461, 478 (1995) (for several months, supervisor \\\"spent about 45 minutes\\n\\n 9 of every 2 hours . . . speaking to employees regarding the Union,\\\" asking, inter alia,\\n\\n10 as directed by upper management, \\\"whether the[ employees] supported the Union,\\\"\\n\\n11 and \\\"where union meetings would be held,\\\" and reported back to management on his\\n\\n12 findings); Management Consulting, Inc., 349 N.L.R.B. 249, 258 (2007) (manager called\\n\\n13 an employee into his office and asked the employee a series of questions as to his\\n\\n14 union activity and that of his fellow employees); Medical Center, 315 N.L.R.B. at 1154\\n\\n15 (supervisor called employee, who was not an open union supporter, \\\"into his office\\n\\n16 and closed the door\\\" and asked employee about union activity; employee had worked\\n\\n17 at this company for 10 years and had \\\"never worked with [that supervisor] . . . and\\n\\n18 had never been called into an office for a conversation with his supervisor where the\\n\\n\\n 38\\n\\f 1 door was closed\\\"). Not one of the cases relied on by the majority found the Act\\n\\n 2 violated in circumstances paralleling those here: a single very general question, asked\\n\\n 3 in a chance encounter, by a supervisor whose company had no history of union\\n\\n 4 animosity, where the question was met with a simple and forthright refusal to\\n\\n 5 discuss, was not followed by any questions to McCarty or any other employee, and\\n\\n 6 was not accompanied by pervasive unlawful conduct as occurred in the cases cited\\n\\n 7 by the Board majority.\\n\\n 8 In these circumstances, which fall far short of meeting the \\\"fairly severe\\n\\n 9 standards\\\" needed to constitute an unfair labor practice, Bourne, 332 F.2d at 48, the\\n\\n10 Board's finding instead comes close to creating a per se rule that no manager can,\\n\\n11 without committing an unfair labor practice, ask an employee any question about\\n\\n12 ongoing union activity. We conclude that the Board's finding that Bozzuto\\n\\n13 unlawfully interrogated McCarty is not supported by the record as a whole.\\n\\n\\n\\n\\n14 2. McCarty's Discharge\\n\\n15 In contrast, we reject, without a need for extended discussion, Bozzuto's\\n\\n16 challenge to the finding that it violated the Act by terminating McCarty's employment\\n\\n17 in February 2014. The record is clear that Bozzuto told McCarty he was being\\n\\n\\n 39\\n\\f 1 discharged because of low productivity, and that the basis for that assessment was\\n\\n 2 data that, although originally entered correctly in the company's computer system,\\n\\n 3 had thereafter been altered to decrease McCarty's perceived level of productivity.\\n\\n 4 Bozzuto's own eventual internal investigation in April 2014 confirmed that McCarty's\\n\\n 5 data had been so altered.\\n\\n 6 Bozzuto's contention that, despite the fact that the alterations had been\\n\\n 7 made using a supervisor's access code, its internal investigation was unable, because\\n\\n 8 of the company's lax security, to establish \\\"conclusively\\\" who made those alterations\\n\\n 9 (Bozzuto reply brief in support of petition for review at 26), and hence that the\\n\\n10 alterations themselves should not be attributed to management--even if it were\\n\\n11 sustainable--is of no moment. The fact remains that Bozzuto discharged McCarty on\\n\\n12 the basis of fraudulent data.\\n\\n13 Bozzuto's contention that its discharge of McCarty did not violate the Act\\n\\n14 because the company did not know at that time that his productivity data had been\\n\\n15 altered--because it did not receive McCarty's screen shots proving such alterations\\n\\n16 until after his discharge--is doubly flawed. First, the distorted notion that an\\n\\n17 employer could successfully defend its improper firing of an employee simply\\n\\n18 because the employee did not show the employer his proof that the employer's own\\n\\n\\n 40\\n\\f 1 relevant records were fraudulent, would turn the law on its head. Second, the record\\n\\n 2 amply supports the Board's finding that Bozzuto's assertion that McCarty was being\\n\\n 3 fired because of low productivity was pretextual. In August 2013, just a month before\\n\\n 4 commencing his union activity, McCarty had been celebrated by Bozzuto for his high\\n\\n 5 level of productivity (see Bozzuto's High Achievers, August 23-25, 2013, \\\"Todd\\n\\n 6 McCarty\\\" (\\\"always doing the right job!\\\")). And McCarty testified that in the past\\n\\n 7 when he brought compensation discrepancies to management's attention they would\\n\\n 8 be corrected. Yet after McCarty's involvement with the Union was known to\\n\\n 9 management, Bozzuto chose to ignore his persistent complaints to supervisors and\\n\\n10 management that his productivity data were being altered, and instead to suspend\\n\\n11 him, and five weeks later to fire him, for low productivity, without making any effort\\n\\n12 to look into his complaints of alteration. After receiving the NLRB's April 2014 letter,\\n\\n13 it took Bozzuto less than five days to verify what McCarty had been protesting--that\\n\\n14 his data had been altered.\\n\\n15 The Board's finding that the discharge of McCarty was motivated by\\n\\n16 antiunion animus and violated the Act was supported by the record as a whole.\\n\\n17 Bozzuto's petition for review in this regard is denied.\\n\\n\\n\\n\\n 41\\n\\f 1 C. The Discharge of Greichen\\n\\n 2 In ruling that the discharge of Greichen violated the Act, the Board\\n\\n 3 majority found that Bozzuto's stated reason for summoning him to the meeting on\\n\\n 4 October 8--i.e., to enlighten and reassure Greichen as to the bona fides of the\\n\\n 5 company's labor standards--\\\"was a pretext,\\\" 365 N.L.R.B. No. 146, slip op. at 4, and\\n\\n 6 instead was \\\"an outgrowth of [Bozzuto's] earlier unlawful warning [on October 1] to\\n\\n 7 Greichen for discussing those standards with other employees,\\\" id. (emphasis added);\\n\\n 8 (see also Board brief in support of petition for enforcement at 40 (arguing that\\n\\n 9 substantial evidence supports finding the October 8 events were linked to Greichen's\\n\\n10 \\\"earlier protected conduct\\\")). The majority found that Greichen would not have been\\n\\n11 summoned to an October 8 meeting had it not been for his pre-October 1 protected\\n\\n12 conduct. 365 N.L.R.B. No. 146, slip op. at 5 n.19; see also id. at 4 (opining that if\\n\\n13 Bozzuto was seriously concerned about Greichen's spreading accusations of corporate\\n\\n14 dishonesty, \\\"it would have done more than simply discharge Greichen\\\"). The\\n\\n15 majority also found that when Winans and Vaughan told Greichen that he would not\\n\\n16 be discharged if he attended the meeting, they did not tell him he would not be\\n\\n17 disciplined in any other way. See id. at 4 n.15. We conclude that none of these\\n\\n18 findings are supported by substantial evidence in the record as a whole.\\n\\n\\n 42\\n\\f 1 First, to support its inference that summoning Greichen to the October\\n\\n 2 8 meeting was pretextual, the Board principally stated that\\n\\n 3 [t]he evidence shows that the meeting was not organized in a manner\\n 4 typical to those held to address complaints about production and safety\\n 5 standards. Jamie Wright, the industrial engineer Clark directed to\\n 6 participate in the meeting, testified that, contrary to past practice,\\n 7 Clark was \\\"vague and [unspecific,] saying [he wanted] to have a\\n 8 meeting with an associate about standards.\\\" Wright asked for\\n 9 more information and Clark declined to give him any more\\n10 information, noting only that the meeting was about standards.\\n11 Wright testified that he was not told about the nature of the\\n12 complaint or given any information to prepare for the meeting and that\\n13 it was \\\"atypically vague\\\" and \\\"frustrating.\\\"\\n\\n14 Id. at 4 (emphases added). We have several difficulties with this rationale, given\\n\\n15 Wright's testimony as a whole.\\n\\n16 Although the Board emphasized the facts that Rick Clark did not tell\\n\\n17 Wright either who the employee was or the nature of the concerns, some lack of\\n\\n18 specificity is understandable, given that Greichen was not complaining about a\\n\\n19 particular task or standard but had made a broadside assault on the company,\\n\\n20 claiming that it was manipulating the labor standards every day for the purpose of\\n\\n21 cheating the employees. And as to any impact of the lack of detail, Wright said it was\\n\\n22 \\\"[a] little frustrating\\\" (Tr. 606), that he was only \\\"vaguely frustrated and I got over it\\n\\n23 in a hurry. I mean this is not a big ordeal [sic]. To me it was just okay, Rick, you want\\n\\n\\n 43\\n\\f 1 me to prepare for a meeting. Okay. Alright. I'll talk about standards. . . . [And the\\n\\n 2 identity of the employee] wasn't something that mattered to me\\\" (id. at 614-15; id.\\n\\n 3 at 611 (\\\"It was about standards.\\\").)\\n\\n 4 Further, while the Board also emphasized that Wright himself did not\\n\\n 5 make special preparations for this meeting, Wright testified that when Clark told him\\n\\n 6 on October 8 \\\"to attend a meeting with an employee who had questions about\\n\\n 7 standards,\\\" Wright asked whether he could bring \\\"David Heatley, who was [his]\\n\\n 8 senior industrial engineer, and [Clark] said yes. And David developed a small . . .\\n\\n 9 packet of information to review with the employee\\\" (Tr. 557).\\n\\n10 The Board found that Heatley's preparation of materials for the October\\n\\n11 8 meeting, \\\"which included a 1-page example of Greichen's work,\\\" did not undermine\\n\\n12 \\\"Wright's testimony or [the Board's] conclusion that the stated reason for the meeting\\n\\n13 was a pretext,\\\" giving as its reasons only that \\\"Heatley did not testify\\\" in the hearing\\n\\n14 before the ALJ and that there was \\\"no evidence indicating why Heatley chose to\\n\\n15 include an example of Greichen's work in the packet of materials,\\\" 365 N.L.R.B. No.\\n\\n16 146, slip op. at 4 n.17. It is true that Heatley did not testify. But there is no dispute\\n\\n17 that he had in fact prepared materials for the meeting, apparently having determined\\n\\n18 that the employee in question was Greichen (see, e.g., Tr. 612-13); that Heatley\\n\\n\\n 44\\n\\f 1 appeared for the scheduled meeting with the prepared materials in hand (see id.\\n\\n 2 at 614-15, 559); that he gave copies of those materials to Wright, his boss (see id.\\n\\n 3 at 615); and that the materials themselves were introduced in evidence at the hearing\\n\\n 4 before the ALJ (see id. at 557-58). Further, Wright testified before the ALJ as to the\\n\\n 5 nature of the materials, which were screen prints of a \\\"portion of a labor standards\\n\\n 6 table,\\\" an example of a \\\"work assignment that ha[d] not been . . . assigned to\\n\\n 7 somebody yet,\\\" and an assignment that \\\"actually had been assigned to and was\\n\\n 8 worked [on] by Mr. Greichen.\\\" (Id. at 558.) Wright also testified that he had \\\"used\\n\\n 9 materials like this before in meetings with other employees.\\\" (Id.)\\n\\n10 In sum, the Board's finding that \\\"the [October 8] meeting was not\\n\\n11 organized in a manner typical to those held to address complaints about production\\n\\n12 and safety standards,\\\" 365 N.L.R.B. No. 146, slip op. at 4, is not supported by the\\n\\n13 record as a whole. It is instead belied by the facts that the chief industrial engineer\\n\\n14 was asked to attend the meeting; he was told that the subject was labor standards; he\\n\\n15 asked to have his senior assistant engineer attend the meeting; that assistant\\n\\n16 assembled, in advance of the meeting, materials on the labor standards and reporting\\n\\n17 forms to be used by employees; the assistant engineer determined the identity of the\\n\\n18 employee in question and included in the meeting materials an example of that\\n\\n\\n 45\\n\\f 1 employee's records; the assistant engineer gave copies of the materials to the chief\\n\\n 2 engineer for the meeting; both engineers showed up at the time and place scheduled\\n\\n 3 for the meeting; and the chief engineer testified that he had \\\"used materials like this\\n\\n 4 before in meetings with other employees\\\" (Tr. 558).\\n\\n 5 Given the context of a meeting called to correct Greichen's understanding\\n\\n 6 of the labor standards, it is difficult to fathom the Board's stated need for additional\\n\\n 7 evidence as to why the materials brought to the meeting included not only generic\\n\\n 8 labor standard materials but also an example of Greichen's own work, as a frame of\\n\\n 9 reference with which Greichen would be familiar. What does seem atypical was the\\n\\n10 accusatory nature of Greichen's complaint.\\n\\n11 Second, the Board appears to have found that Greichen in fact was not\\n\\n12 given any assurance \\\"that there would be no adverse consequences if he attended the\\n\\n13 [October 8] meeting,\\\" 365 N.L.R.B. No. 146, slip op. at 4 n.15 (emphasis added), stating\\n\\n14 that the recorded evidence\\n\\n\\n\\n\\n15 of Winans' and Greichen's conversation prior to the meeting\\n16 reflects only that Greichen understood that he would not be\\n17 discharged if he attended the meeting, rather than that he would\\n18 not be disciplined as he had been just a week earlier,\\n\\n\\n\\n 46\\n\\f 1 id. (first emphasis added; other emphases in original). The tape itself does not reflect\\n\\n 2 that Greichen's understanding was so limited, for in that conversation--surreptitiously\\n\\n 3 recorded by Greichen--his acknowledgement of his understanding as to whether he\\n\\n 4 would or would not be discharged was not the end of the discussion (see\\n\\n 5 Transcription of Tapes (\\\"Tape\\\") at 21). Rather, the Board failed to note that after that\\n\\n 6 acknowledgement, Greichen evinced concern precisely about the possibility of lesser\\n\\n 7 disciplines as well, as he proceeded to point out that he had attended a meeting the\\n\\n 8 week before, in which he was criticized for his \\\"behavior\\\" (id.). And after further\\n\\n 9 discussion, Vaughan reiterated that if Greichen refused to attend the meeting \\\"that\\n\\n10 is considered insubordination\\\" and \\\"you're going to be suspended pending\\n\\n11 [termination]\\\" (Tape at 24); but Vaughan told him if you do attend \\\"there's nothing\\n\\n12 here that's unsafe or discriminatory or harassment in this meeting,\\\" \\\"you're not going\\n\\n13 to lose incentive [or pay],\\\" \\\"we're not doing anything negative to you\\\" (id.) (emphases\\n\\n14 added)). Greichen then said \\\"My choice is not to go to the meeting.\\\" (Tape at 24-25.)\\n\\n15 The finding that Greichen did not understand that attending the meeting would not\\n\\n16 expose him to \\\"any[]\\\" discipline is not supported by the record.\\n\\n17 Finally, while the Board majority agreed with the ALJ's view that it was\\n\\n18 impossible to \\\"separate\\\" the October 8 order that Greichen meet with management\\n\\n\\n 47\\n\\f 1 from the improper October 1 warning to Greichen that he should not discuss terms\\n\\n 2 and conditions of employment with his coworkers, see, e.g., 365 N.L.R.B. No. 146, slip\\n\\n 3 op. at 17 (ALJ stating \\\"I frankly don't see how one can separate these\\\"); id. at 4 (Board\\n\\n 4 \\\"agree[ing] with the judge that [Bozzuto's] insistence that Greichen attend the October\\n\\n 5 8 meeting to discuss his ongoing concerns about [Bozzuto's] productivity standards\\n\\n 6 was an outgrowth of [Bozzuto's] earlier unlawful warning [on October 1] to Greichen\\n\\n 7 for discussing those standards with other employees\\\"), the record does not reveal\\n\\n 8 such a connection. We have seen no evidence, for example, that after October 1\\n\\n 9 Bozzuto subjected Greichen to surveillance to see whether he was disregarding its\\n\\n10 (unlawful) instruction not to discuss working conditions with his coworkers, or\\n\\n11 otherwise targeted him in an effort to \\\"create[ an] allegedly 'for cause' basis for\\n\\n12 discharge,\\\" Consolidated Bus, 577 F.3d at 479 (emphasis in original); see id. at 474 n.2\\n\\n13 (employer conceded that it followed and surveilled an employee, and singled him out\\n\\n14 for performance testing because of its antiunion animus). Rather, on October 8,\\n\\n15 Bozzuto was responding to Greichen's approach to Winans, and to Greichen's\\n\\n16 disclosure that he had begun engaging in conduct that was qualitatively different.\\n\\n17 Whereas Greichen had previously been complaining merely that the\\n\\n18 standards did not provide enough time to complete the assigned tasks, there is no\\n\\n\\n 48\\n\\f 1 evidence that his October 1 complaints impugned the company's honesty and\\n\\n 2 integrity. On October 8, however, \\\"Greichen told Winans that 'he tells anybody and\\n\\n 3 everybody he can that he believes [the Company is] purposely changing the daily\\n\\n 4 standards in order to screw the associates'\\\" (Board brief in support of petition for\\n\\n 5 enforcement at 8-9 (quoting Winans Memorandum of Greichen's October 8\\n\\n 6 statements (emphases ours))). This is a serious qualitative difference. As stated by\\n\\n 7 the Board dissenter, \\\"This should go without saying, but I will say it anyway:\\n\\n 8 complaining that [Bozzuto's] production standards are too demanding and accusing\\n\\n 9 [Bozzuto] of being a wage cheat are very different matters . . . .\\\" 365 N.L.R.B. No. 146,\\n\\n10 slip op. at 10 (emphases added). The Board majority's view that if Greichen had made\\n\\n11 no previous complaints about the standards he would not have been called upon by\\n\\n12 management to address his accusations of corporate dishonesty--which he said he\\n\\n13 was telling to anyone who would listen--is unrealistic.\\n\\n14 In sum, despite Bozzuto's now-conceded violation of the Act on October\\n\\n15 1 by warning Greichen for complaining to coworkers about the stringency of the labor\\n\\n16 standards, we cannot conclude that substantial evidence supports the Board's finding\\n\\n17 that, if he had not previously complained about tight labor standards, Greichen\\n\\n18 would not have been ordered to attend the October 8 meeting with respect to his\\n\\n\\n 49\\n\\f 1 accusation--which, according to his own description, he widely trumpeted--that\\n\\n 2 Bozzuto was intentionally \\\"screw[ing]\\\" the employees.\\n\\n 3 Greichen's refusal to attend the meeting constituted insubordination. For\\n\\n 4 such conduct, Bozzuto had a no-tolerance policy that predated any union-related\\n\\n 5 activity and called for termination of an employee upon the first occurrence of\\n\\n 6 insubordination. Bozzuto's insistence that Greichen, in light of his accusations of\\n\\n 7 cheating, attend a meeting with the engineers in order to educate him as to why he\\n\\n 8 was wrong about the labor standards, and its termination of his employment upon\\n\\n 9 his steadfast refusal to attend, did not violate the Act.\\n\\n\\n\\n\\n10 D. The Board's Remedies\\n\\n11 In light of our conclusions that Bozzuto did not violate the Act in\\n\\n12 discharging Greichen and posing the \\\"what's going on with this union stuff\\\" question\\n\\n13 to McCarty, the remedies ordered by the Board with respect to those findings are not\\n\\n14 enforced.\\n\\n15 We also do not enforce the Board's order that its findings of unfair labor\\n\\n16 practices and its remedial notice be read aloud by Clark, or by a Board member in\\n\\n17 Clark's presence, at a meeting of Bozzuto's employees. The ALJ declined to\\n\\n\\n 50\\n\\f 1 recommend such an extraordinary remedy, finding it inappropriate. While the Board\\n\\n 2 majority ordered the public reading, it did so without making findings contrary to\\n\\n 3 those of the ALJ that Bozzuto had not been guilty of any prior unfair labor practices\\n\\n 4 and that it was not likely to engage in unfair labor practices in the future. In these\\n\\n 5 circumstances, and with two of the unfair labor practice findings of the ALJ and the\\n\\n 6 Board being overturned, the extraordinary remedy of a public reading to employees\\n\\n 7 is even more inappropriate.\\n\\n 8 Bozzuto remains liable for engaging in several unfair labor practices--\\n\\n 9 raising wages in an attempt to discourage employees from joining the Union,\\n\\n10 adopting a restrictive speech policy for disciplined employees, warning Greichen\\n\\n11 against talking with coworkers about conditions of employment, and suspending and\\n\\n12 firing McCarty in reliance on fraudulent alterations of his production records. These\\n\\n13 are not inconsequential violations. But they do not warrant an order for a public\\n\\n14 reading.\\n\\n\\n\\n\\n 51\\n\\f1 CONCLUSION\\n\\n\\n\\n\\n2 We have considered all of the parties' arguments in support of their\\n\\n3 respective positions on these petitions and, except as indicated above, have found\\n\\n4 them to be without merit. The petition for review is granted with respect to the\\n\\n5 rulings and orders relating to the interrogation of McCarty and the discharge of\\n\\n6 Greichen, and with respect to the order that the Board's remedial notice be read aloud\\n\\n7 at a meeting of employees. In all other respects, the petition for review is denied. The\\n\\n8 Board's cross-petition for enforcement is granted in all respects except those in which\\n\\n9 the petition for review is granted.\\n\\n\\n\\n\\n 52\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4409477/\", \"author_raw\": \"KEARSE, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KEARSE"},"judge2":{"kind":"string","value":"LIVINGSTON"},"judge3":{"kind":"string","value":"CARNEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4632224/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":6,"string":"6"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: BOZZUTO'S INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-06-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18-125(L)\n Bozzuto's Inc. v. NLRB\n\n\n\n\n 1 UNITED STATES COURT OF APPEALS\n\n 2 FOR THE SECOND CIRCUIT\n\n 3 ------\n\n 4 August Term, 2018\n\n 5 (Argued: November 29, 2018 Decided: June 24, 2019)\n\n 6 Docket Nos. 18-125(L), 18-331(XAP)\n\n 7 _________________________________________________________\n\n 8 BOZZUTO'S INC.,\n 9 Petitioner-Cross-Respondent,\n\n10 - v. -\n\n11 NATIONAL LABOR RELATIONS BOARD,\n\n12 Respondent-Cross-Petitioner.\n13 _________________________________________________________\n\n14 Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.\n\n15 Cross-petition by respondent National Labor Relations Board for\n\n16 enforcement of an order (A) holding that petitioner employer engaged in unfair labor\n\n17 practices in violation of the National Labor Relations Act (the \"Act\"), 29 U.S.C.\n\n18 §§ 158(a)(1) and (3), by, inter alia, announcing wage increases in conjunction with\n\f 1 urging employees to decline to join a union, asking one pro-union employee \"what's\n\n 2 going on with this union stuff,\" later suspending and then discharging him for\n\n 3 allegedly low productivity, and discharging another pro-union employee for\n\n 4 insubordination in refusing to attend a meeting; and (B) requiring employer to (1)\n\n 5 cease and desist from such or similar violations, (2) reinstate the insubordinate\n\n 6 employee, (3) compensate and make whole both discharged employees, (4) post the\n\n 7 Board's remedial notice listing the employer actions found to have violated the Act,\n\n 8 and (5) hold a meeting at which that notice is read aloud to its employees by, or in the\n\n 9 presence of, employer's senior vice president. See Bozzuto's, Inc., 365 N.L.R.B. No. 146\n\n10 (2017).\n\n11 Employer petitions for review of the Board's holdings that the above\n\n12 single question constituted impermissible interrogation and that the discharges were\n\n13 motivated by antiunion animus, contending that those findings are not supported by\n\n14 substantial evidence; and it contends that the Board abused its discretion in ordering\n\n15 remedies for the discharged employees and ordering that the remedial notice be read\n\n16 aloud at a meeting of employees.\n\n17 The petition for review is granted to the extent that it challenges (1) the\n\n18 Board's rulings and orders with regard to (a) \"interrogation\" and (b) the discharge of\n\n\n 2\n\f 1 an employee for insubordination, and (2) the order that the Board's remedial notice\n\n 2 be read aloud at a meeting of employees. In all other respects, the petition for review\n\n 3 is denied. The Board's cross-petition for enforcement is granted in all respects except\n\n 4 those in which the petition for review is granted.\n\n 5 MIGUEL A. ESCALERA, Jr., Hartford, Connecticut (Sheldon D.\n 6 Myers, Kainen, Escalera & McHale, Hartford, Connecticut,\n 7 on the brief), for Petitioner-Cross-Respondent.\n\n 8 DAVID A. SEID, Washington, D.C. (Peter B. Robb,General\n 9 Counsel, John W. Kyle, Deputy General Counsel, Linda\n10 Dreeben, Deputy Associate General Counsel, Julie Brock\n11 Broido, Supervisory Attorney, National Labor Relations\n12 Board, Washington, D.C., on the brief), for Respondent-Cross-\n13 Petitioner.\n\n\n\n14 KEARSE, Circuit Judge:\n\n15 Petitioner-cross-respondent Bozzuto's Inc. (\"Bozzuto\") petitions for\n\n16 review of so much of an order of respondent-cross-petitioner National Labor\n\n17 Relations Board (\"NLRB\" or \"Board\"), see Bozzuto's, Inc., 365 N.L.R.B. No. 146 (2017),\n\n18 as (A) found Bozzuto committed unfair labor practices in violation of §§ 8(a)(1) and/or\n\n19 (3) of the National Labor Relations Act (the \"Act\"), 29 U.S.C. §§ 158(a)(1) and (3), in\n\n20 its treatment of two employees who were union supporters, by asking Todd McCarty\n\n21 \"what's going on with this union stuff,\" later discharging him for allegedly low\n\n\n 3\n\f 1 productivity, and discharging Patrick Greichen for alleged insubordination in\n\n 2 refusing to attend a meeting to which he was summoned by management; and (B)\n\n 3 orders Bozzuto to reinstate Greichen, to provide Greichen and McCarty with backpay\n\n 4 and compensation for other losses, and to read the Board's remedial notice, detailing\n\n 5 Bozzuto's violations of the Act, aloud at a meeting of its employees. In support of its\n\n 6 petition, Bozzuto contends principally that substantial evidence did not support the\n\n 7 Board's findings that the single question to McCarty was coercive or that either\n\n 8 McCarty or Greichen was terminated because of antiunion animus or protected\n\n 9 activity, and that the Board abused its discretion in ordering Bozzuto to reinstate\n\n10 Greichen with backpay and to read the remedial order aloud to employees.\n\n11 The Board cross-petitions for enforcement of its order which--in addition\n\n12 to the above aspects challenged by Bozzuto-- found that Bozzuto violated the Act by\n\n13 announcing wage increases in conjunction with urging employees to decline to join\n\n14 a union; by maintaining a restrictive speech policy that conditioned continued\n\n15 employment for suspended employees on their written agreement not to discuss with\n\n16 coworkers terms of employment, including discipline; by disciplining Greichen for\n\n17 talking with other Bozzuto employees about conditions of employment; and by\n\n18 suspending McCarty for supposedly low productivity.\n\n\n 4\n\f 1 For the reasons that follow, we grant Bozzuto's petition for review to the\n\n 2 extent that it challenges (1) the Board's rulings and orders with regard to the\n\n 3 \"interrogation\" of McCarty and the discharge of Greichen, and (2) the order that the\n\n 4 Board's remedial notice be read aloud at a meeting of employees. In all other\n\n 5 respects, the petition for review is denied. The Board's cross-petition for enforcement\n\n 6 is granted in all respects except those in which the petition for review is granted.\n\n\n\n\n 7 I. BACKGROUND\n\n\n\n\n 8 The observable events leading to these administrative proceedings,\n\n 9 despite some vagueness in the testimony as to their precise timing, are largely\n\n10 undisputed. Bozzuto operates wholesale warehouses in Connecticut for the\n\n11 distribution of food products, employing approximately 450 production workers in\n\n12 capacities such as loaders, forklift operators, and \"selectors.\" A selector's job includes\n\n13 receiving orders for food products, driving a motorized vehicle to the section in\n\n14 which the ordered products are stored, and loading the products onto portable\n\n15 platforms that are ultimately carried by truck to the customers.\n\n\n\n\n 5\n\f 1 In order to evaluate selectors' productivity, Bozzuto attaches machine-\n\n 2 readable tags to each warehouse product and uses a computerized system to compare\n\n 3 the speed with which selectors complete their tasks against a standard time--which\n\n 4 the parties call the \"labor standard.\" The labor standards were established by Bozzuto\n\n 5 engineers after months of studies, in accordance with accepted engineering methods,\n\n 6 calculating average times needed to complete specific tasks. The resulting standards\n\n 7 are posted publicly on Bozzuto bulletin boards for the employees' information.\n\n 8 A Bozzuto selector whose performance exceeded the labor standard on\n\n 9 a weekly basis became eligible for added incentive pay; a selector whose performance\n\n10 failed, for a given week, to meet at least 95 percent of the labor standard was subject\n\n11 to potential discipline.\n\n12 McCarty and Greichen were employed at a Bozzuto warehouse as\n\n13 selectors. McCarty had frequently earned extra incentive pay for exceeding the labor\n\n14 standards. In August 2013, Bozzuto posted a commendation for his \"outstanding job\n\n15 selecting . . . food products\" and his \"expertise and dedication to always doing the\n\n16 right job!\" (Bozzuto's High Achievers, August 23-25, 2013, \"Todd McCarty\" (\"GREAT\n\n17 JOB, TODD!!!!\").)\n\n\n\n\n 6\n\f 1 A. The events of mid-September through October 1, 2013\n\n 2 In September 2013, McCarty contacted the United Food and Commercial\n\n 3 Workers Union, Local 919 (the \"Union\"); shortly thereafter, he, Greichen, and two\n\n 4 other Bozzuto employees met with a Union representative. On Monday September\n\n 5 23, McCarty and Greichen began handing out union authorization cards to their\n\n 6 fellow production workers, urging them to sign up.\n\n 7 The effort to unionize Bozzuto employees did not long remain covert.\n\n 8 On September 26, an employee posted a message to Bozzuto's internal electronic\n\n 9 message board stating that union authorization cards were being distributed.\n\n10 McCarty had initially hoped the unionization effort would escape management's\n\n11 notice for at least the first few weeks; but it did not, and within the first week he chose\n\n12 to be open about his participation. By September's end, the Union had obtained 84\n\n13 signed authorization cards from Bozzuto employees.\n\n14 Bozzuto's management was generally aware in that first week that a\n\n15 union-organizing effort was under way. On Monday September 30, Bozzuto's Vice\n\n16 President of Human Resources Carl Koch posted a message stating that Bozzuto was\n\n17 \"aware of the current activity.\"\n\n\n\n\n 7\n\f 1 On or about October 1, as McCarty exited a restroom near a Bozzuto\n\n 2 work area, he encountered Bozzuto's Senior Vice President Rick Clark, with whom\n\n 3 he had a good relationship. Clark asked, \"Hey, Todd, what's going on with this\n\n 4 Union stuff?\" McCarty replied, \"I'm not going to talk about it with you, Mr. Clark.\"\n\n 5 (Hearing Transcript (\"Tr.\") 485.) That was the end of the conversation.\n\n 6 On October 1, Bozzuto issued a written announcement that stated in\n\n 7 pertinent part as follows:\n\n 8 We have been advised by a number of our associates that\n 9 the [Union] is attempting to unionize our associates and asked\n10 them to sign a union card. The associates that came to us did so\n11 out of concern for themselves and their fellow workers stating\n12 that having a union is not in the best interest of Bozzuto[] or the\n13 associates.\n\n14 ....\n\n15 We want all of our associates to understand that they are\n16 not required to sign a union card. It's absolutely ok to say NO.\n17 If anyone harasses you about that, tell them to stop and feel free\n18 to seek our assistance.\n\n19 We do not need a union at Bozzuto[]. Unions do not\n20 provide jobs, only successful companies can . . . .\n\n21 (Emphasis in original.) On the same day, Bozzuto posted a memorandum\n\n22 announcing that nearly all production workers would be receiving hourly pay\n\n\n\n 8\n\f 1 increases ranging from 50 cents to two dollars per hour, retroactive to September 29,\n\n 2 2013.\n\n 3 Also on October 1, 2013, Greichen was summoned to a meeting with\n\n 4 several members of Bozzuto's management team: Senior Vice President Clark,\n\n 5 Human Resources Vice President Koch, Associate Relations and Development\n\n 6 Manager Doug Vaughan, and Head of Security Bill Glass. Bozzuto maintains that the\n\n 7 meeting was called because Clark had been told by other employees that Greichen\n\n 8 was displaying erratic behavior and making various negative comments about\n\n 9 Bozzuto's labor standards being too stringent, complaining that they did not, in\n\n10 Greichen's view, allow enough time for employees to complete their assigned tasks.\n\n11 As reflected in a memorandum prepared by Vaughan from his notes of the meeting,\n\n12 Clark informed Greichen \"that several associates\" had \"commented on how his\n\n13 behavior had been increasingly more erratic and some hourly associates considered\n\n14 his behavior 'scary,'\" and that \"it was management's job to provide a safe and clean\n\n15 work environment for all associates\" and to address \"comments . . . made to\n\n16 management that raise a red flag.\"\n\n17 Greichen was warned against continuing his behavior and told he\n\n18 \"needed to stop disrupting the work environment by making negative comments in\n\n\n 9\n\f 1 the aisles, such as[] being forced to work 20 hours per day or comments about\n\n 2 needing three legs to do the work here, in the hallway in front of his peers.\"\n\n\n\n\n 3 B. The Discharge of Greichen on October 8\n\n 4 On October 8, 2013, Greichen complained first to his supervisors, and\n\n 5 thereafter to Bozzuto's then-Grocery Distribution Manager Jason Winans, that the\n\n 6 labor standard pertaining to his assigned tasks for the day had been unfairly\n\n 7 shortened, making timely completion of his work impossible. Winans's ensuing\n\n 8 memorandum summarizing his conversation with Greichen stated that Winans\n\n 9 \"attempt[ed] to calm Mr. Greichen down\" by reviewing with him the computer\n\n10 records as to individual assignments; but when Winans \"didn't see anything out of\n\n11 the ordinary,\"\n\n12 Patrick [Greichen] began telling me how he believes Bozzuto[]\n13 cuts the standard time on assignments on days when the volume\n14 is high in order to get more cases out of people and to pay them\n15 less, in the process making them miserable. Patrick then told me\n16 that he tells anybody and everybody he can that he believes we are\n17 purposely changing the standards on a daily basis in order to screw the\n18 associates. I told Patrick that I didn't believe any of this to be true\n19 and that these were very serious accusations he was making.\n\n20 (Memorandum of Jason Winans dated October 9, 2013, as to October 8, 2013\n\n\n\n 10\n\f 1 accusations by Patrick Greichen (\"Winans Memorandum of Greichen's October 8\n\n 2 statements\") at 1 (emphases added)). As indicated in that memorandum, Winans\n\n 3 viewed the situation as problematic, and he promptly reported Greichen's accusations\n\n 4 to Clark and Vaughan.\n\n 5 Clark and Winans arranged for a 4:00 meeting on October 8 at which\n\n 6 Bozzuto industrial engineers James Wright and David Heatley could explain to\n\n 7 Greichen how the standard times for various tasks were determined and functioned\n\n 8 so that Greichen could see that the targets were not subject to manipulation. Bozzuto\n\n 9 maintains that it hoped both to educate and reassure Greichen and to prevent him\n\n10 from spreading misinformation to other employees.\n\n11 Winans then, as instructed by Clark, told Greichen of the scheduling of\n\n12 the meeting and its purpose, and said Greichen's presence was required. Despite\n\n13 Winans's repeated urging, Greichen refused to attend. He said he felt he was being\n\n14 harassed. Vaughan then joined Winans in attempting to persuade Greichen to attend\n\n15 the meeting. Vaughan said Greichen would not face discrimination or harassment\n\n16 or \"anything negative\" if he attended the meeting; Winans emphasized that the\n\n17 meeting was mandatory and that if Greichen did not attend, he would be suspended\n\n18 pending termination for insubordination. Greichen confirmed that he understood.\n\n\n 11\n\f 1 There is no dispute that he was also informed the meeting would be attended by\n\n 2 industrial engineers.\n\n 3 Greichen nonetheless refused to attend. Bozzuto discharged him,\n\n 4 effective that day, citing his insubordination.\n\n\n\n\n 5 C. The 2014 Suspension and Termination of McCarty\n\n 6 Following the October 8, 2013 discharge of Greichen, McCarty remained\n\n 7 involved in supporting the union-organizing effort and was one of the few remaining\n\n 8 active union supporters. His involvement with the Union had been well known to\n\n 9 Bozzuto's management since the first week of the campaign.\n\n10 In early January 2014, McCarty became aware that his reported\n\n11 productivity numbers for the week ending January 4 appeared to be unduly low, and\n\n12 he deduced that Bozzuto's computerized reporting system, in tracking his efficiency\n\n13 as compared to the labor standard, had failed to take account of his \"down time,\" i.e.,\n\n14 time when he properly was not on-the-clock. Down time, such as a supervisor-\n\n15 approved break or time needed for equipment repairs, does not count toward the\n\n16 total time the employee has taken to complete a task. Thus, failure to account for an\n\n\n\n\n 12\n\f 1 employee's down time would make his performance appear to be less productive\n\n 2 than it actually was.\n\n 3 To verify his suspicion that the reporting system was not taking proper\n\n 4 account of his down time, McCarty began to take screen shots each week of the raw\n\n 5 data shown for him in the computer, in order to prove inaccuracies in the final\n\n 6 productivity reports. He complained to Winans about the discrepancies he observed\n\n 7 due to his missing down time. According to McCarty, Winans essentially\n\n 8 disregarded his complaint, saying \"If you wanted down time put in, you should have\n\n 9 made sure it was put in. . . . It is what it is.\" (Tr. 515.)\n\n10 In mid-January, McCarty spoke with his supervisor William Englehart\n\n11 to pursue his complaint about improper treatment of his down time. According to\n\n12 McCarty, Englehart told him not to worry about it (see id. at 516); but Bozzuto\n\n13 proceeded to suspend McCarty for five days on account of his supposedly low\n\n14 productivity numbers. McCarty refused to sign the Bozzuto write-up documenting\n\n15 this five-day suspension, arguing that the productivity numbers shown were\n\n16 inaccurate.\n\n17 McCarty then was away for a few weeks, in part on vacation, and he had\n\n18 coworkers take screen shots of his data for the week ending January 18. Their\n\n\n 13\n\f 1 photographs showed that McCarty's originally recorded down time was thereafter\n\n 2 deleted, thereby lowering McCarty's productivity score.\n\n 3 On February 18, the day that McCarty returned, he was summoned to\n\n 4 a meeting with members of Bozzuto's management. He was told that his\n\n 5 performance for the week of January 11 was at 94 percent of the labor standard, and\n\n 6 that, as a result, he was being discharged. McCarty objected on the ground that the\n\n 7 productivity numbers were skewed, and he refused to sign the write-up documenting\n\n 8 his termination.\n\n 9 Shortly after his suspension, McCarty had contacted the NLRB Regional\n\n10 Office and had begun submitting his photographic evidence of the alterations relating\n\n11 to his productivity. On April 9, 2014, that Office sent Bozzuto a letter stating that\n\n12 McCarty's productivity data had been altered, and attached, inter alia, photographs\n\n13 for each of the weeks ending January 11 and 18, 2014, showing the records for\n\n14 McCarty before and after the alterations took place.\n\n15 McCarty had not submitted his photographic evidence to Bozzuto. After\n\n16 receiving the April 9 communication from the NLRB, Bozzuto initiated an internal\n\n17 investigation, led by industrial engineer Wright. As a result of this investigation,\n\n18 Bozzuto concluded on April 14, 2014, that McCarty's data had in fact been changed--\n\n\n 14\n\f 1 adversely to McCarty--with respect to the weeks ending January 11 and January 18.\n\n 2 On May 14, 2014, it unconditionally offered McCarty reinstatement, plus\n\n 3 compensation for losses in earnings and benefits. McCarty declined reinstatement.\n\n\n\n\n 4 D. The Administrative Proceedings\n\n 5 In October 2014, the NLRB's General Counsel, through its Regional\n\n 6 Director (collectively the \"General Counsel\"), issued a complaint alleging that Bozzuto\n\n 7 had violated §§ 8(a)(1) and/or (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3), by--to the\n\n 8 extent pertinent to the present petitions--(1) interrogating McCarty on or about\n\n 9 September 27, 2013; (2) implementing a work rule that prohibited disciplined\n\n10 employees from discussing the terms of their employment, including disciplinary\n\n11 measures, with other employees; (3) raising wages on October 1 in an attempt to\n\n12 discourage employees from joining the Union; (4) warning Greichen on October 1\n\n13 against engaging in activity protected by the Act; (5) discharging Greichen on October\n\n14 8 in retaliation for his previous conduct that was protected by the Act; and (6)\n\n15 suspending and discharging McCarty because of the company's antiunion animus.\n\n16 The matter was tried before administrative law judge (\"ALJ\") Raymond\n\n17 P. Green, who found against Bozzuto on each of the above charges and principally\n\n\n 15\n\f 1 recommended the issuance of cease-and-desist orders and affirmative relief for\n\n 2 Greichen and McCarty.\n\n\n\n\n 3 1. The Rulings and Recommendations of the ALJ\n\n 4 First, the ALJ considered Bozzuto's October 1, 2013 announcement of\n\n 5 retroactive pay raises for most of its production workers. There was clear evidence\n\n 6 that management had become aware of the union-organizing activity several days\n\n 7 earlier. The ALJ also noted an absence of evidence that such increases were given on\n\n 8 a regular basis or that the decision to implement these increases had been made\n\n 9 before Bozzuto became aware of the union- organizing activity. On the same day that\n\n10 Bozzuto announced the pay raises, it announced that it \"was aware that the Union\n\n11 had obtained a list of the warehouse employees,\" and it \"encouraged employees to\n\n12 refrain from signing union authorization cards and stated that 'we do not need a\n\n13 union at Bozzuto[] . . . .'\" 365 N.L.R.B. No. 146, slip op. at 15. The ALJ found that\n\n14 \"[t]he notices posted simultaneously on October 1, 2013, leave no doubt that the pay\n\n15 increases were motivated by the fact that the Company became aware that the Union\n\n16 was engaged in organizing activity,\" and that the announcement of the raises violated\n\n17 § 8(a)(1) of the Act. Id. at 16 (emphasis added).\n\n\n 16\n\f 1 As to Bozzuto's treatment of Greichen on October 1, the ALJ found that\n\n 2 summoning him to a meeting and criticizing him because of employee reports that\n\n 3 he was complaining to other workers about how the production standards were\n\n 4 resulting in long hours and affecting, inter alia, their rights to receive premium pay,\n\n 5 interfered with Greichen's protected right to engage in concerted activity within the\n\n 6 meaning of § 7 of the Act. See id. at 16-17; see also id. at 17 (finding that the warning\n\n 7 of Greichen \"at virtually the same time that the Company notified employees that\n\n 8 they should avoid union activity\" suggests that \"management more than likely\n\n 9 believed that he was among the employees who most likely would support a union\").\n\n10 The ALJ also found that Bozzuto's general policy of conditioning continued\n\n11 employment for suspended employees on their agreement not to discuss terms of\n\n12 employment, including discipline, with their coworkers (Bozzuto's \"restrictive speech\n\n13 policy\") violated § 8(a)(1) of the Act.\n\n14 As to Clark's asking McCarty \"what's going on with this union stuff,\" the\n\n15 ALJ found as follows:\n\n16 While this single act of interrogation might be viewed as an\n17 offhand and somewhat innocuous comment, the fact is that this\n18 event occurred at or near the same time of the unlawfully motivated\n19 pay increase and the unlawful discrimination against Greichen. I\n\n\n 17\n\f 1 therefore shall conclude that this interrogation, in the\n 2 circumstances, violated Section 8(a)(1) of the Act.\n\n 3 365 N.L.R.B. No. 146, slip op. at 18 (emphases added).\n\n 4 The ALJ also found that the discharge of Greichen on October 8 violated\n\n 5 the Act, rejecting Bozzuto's contention that he had been discharged solely for\n\n 6 insubordination:\n\n 7 Even taking [Bozzuto's] premise that Greichen's refusal to attend\n 8 a meeting constituted insubordination, . . . . Greichen was told to\n 9 go to a meeting to discuss his complaints about productivity\n10 standards because [Bozzuto] was concerned that he was talking\n11 about them and misinforming his fellow employees. Thus, the\n12 demand that he attend this meeting was inexplicably [sic] bound up to\n13 the Company's earlier unlawful warning on October 1, which was issued\n14 because of Greichen's protected concerted activity. One follows from\n15 the other and the October 8 meeting would not have taken place but for\n16 the earlier interference with Greichen's right to talk to his coworkers\n17 about their collective terms and conditions of employment.\n\n18 Id. at 17 (emphases added).\n\n19 Finally, the ALJ found that Bozzuto's suspension and discharge of\n\n20 McCarty in 2014 were motivated by antiunion animus, noting \"that McCarty was the\n\n21 leading union activist among the employees after October 8,\" that Bozzuto \"was fully\n\n22 aware of his union activity,\" and that \"the ostensible reason for his suspension and\n\n23 discharge was manifestly false.\" Id. at 18; see also id. (noting that Bozzuto \"ha[d] failed\n\n\n\n 18\n\f 1 to show that it would have taken these actions apart from McCarty's union activity\").\n\n 2 The ALJ concluded that the General Counsel had established by a preponderance of\n\n 3 the evidence that Bozzuto's suspension and discharge of McCarty violated §§ 8(a)(1)\n\n 4 and (3) of the Act.\n\n 5 In light of his findings as to these violations, the ALJ recommended that\n\n 6 Bozzuto be ordered to cease and desist from such conduct, that it offer reinstatement\n\n 7 to Greichen and take affirmative steps to make Greichen and McCarty whole for any\n\n 8 losses resulting from Bozzuto's violations of their rights, and that it post notice of the\n\n 9 Board's findings and remedial order.\n\n10 However, the ALJ rejected the General Counsel's request for a\n\n11 recommendation that Bozzuto be ordered to read such an order aloud to its\n\n12 assembled employees. The ALJ recognized that such a public reading is an\n\n13 \"'extraordinary remed[y],'\" 365 N.L.R.B. No. 146, slip op. at 19 (quoting Federated\n\n14 Logistics & Operations, 340 N.L.R.B. 255, 256-57 (2003)). And while noting that\n\n15 Bozzuto's violations were not trivial, the ALJ concluded that they were \"not . . .\n\n16 numerous, pervasive or outrageous,\" and there had been no showing that Bozzuto\n\n17 had violated the Act in the past or that it was likely to do so again in the future. 365\n\n18 N.L.R.B. No. 146, slip op. at 19.\n\n\n 19\n\f 1 2. The Decision of the Board\n\n 2 A three-member panel of the Board unanimously adopted the ALJ's\n\n 3 findings that Bozzuto engaged in unfair labor practices on October 1, 2013, in its\n\n 4 announcement of wage increases and its restrictive speech policy--findings to which\n\n 5 Bozzuto had not objected--and in 2014 by suspending and discharging McCarty. As\n\n 6 discussed below, the ALJ's other findings were adopted by a 2-1 vote of the Board,\n\n 7 with the Chairman dissenting principally from the findings that Bozzuto violated the\n\n 8 Act in questioning McCarty (see Part II.B.1. below) and in discharging Greichen (see\n\n 9 Part II.C. below). The Board also, by a 2-1 vote with the Chairman dissenting,\n\n10 modified the ALJ's recommended remedy by requiring that the Board's remedial\n\n11 notice be read aloud at a meeting of employees by Clark or by a Board member in\n\n12 Clark's presence (see Part II.D. below).\n\n\n\n\n13 II. DISCUSSION\n\n\n\n\n14 Bozzuto in its petition for review contends principally (A) that\n\n15 substantial evidence does not support the Board's findings that Clark's single\n\n16 question to McCarty constituted an unlawful interrogation or that Bozzuto's\n\n\n 20\n\f 1 discharges of Greichen and McCarty were either punishment for statutorily protected\n\n 2 activity or motivated by antiunion animus; and (B) that neither Bozzuto's conduct nor\n\n 3 its history warrants the extraordinary remedy of ordering that the Board's remedial\n\n 4 notice be read aloud to Bozzuto's employees.\n\n 5 The Board petitions for enforcement of its findings in full, either for lack\n\n 6 of timely objection by Bozzuto, or on the merits, i.e., contending\n\n 7 # that its decision upholding two findings and recommendations\n 8 of the ALJ--that Bozzuto violated § 8(a)(1) of the Act (a) by announcing\n 9 and implementing wage increases in response to the union-organizing\n10 activity, and (b) by its restrictive speech policy conditioning continued\n11 employment for disciplined employees on their refraining from\n12 discussing their discipline, etc., with coworkers--should be summarily\n13 enforced because Bozzuto did not object to those ALJ findings before the\n14 Board, see 29 U.S.C. § 160(e) (absent extraordinary circumstances, \"[n]o\n15 objection that has not been urged before the Board . . . shall be\n16 considered by the court\");\n\n17 # that two other Board findings--that Bozzuto violated § 8(a)(1) of\n18 the Act by warning Greichen not to discuss the terms of his employment\n19 with other Bozzuto employees (a finding that Bozzuto no longer\n20 challenges (see Bozzuto reply brief in support of petition for review\n21 at 7-8)), and violated §§ 8(a)(1) and (3) by suspending McCarty--should\n22 be summarily enforced because Bozzuto's opening brief contains no\n23 challenges to those findings or the related orders, see, e.g., Fed. R. App.\n24 P. 28(a)(8)(A) (\"appellant's brief must contain . . . appellant's contentions\n25 and the reasons for them, with citations to the authorities and parts of\n26 the record on which the appellant relies\"); and\n\n\n\n\n 21\n\f 1 # that the Board's findings that Bozzuto violated § 8(a)(1) by\n 2 interrogating McCarty and discharging Greichen, and violated §§ 8(a)(1)\n 3 and (3) by discharging McCarty, are supported by substantial evidence.\n\n 4 The Board seeks enforcement of its entire remedial order, including the requirement\n\n 5 of a public reading of the findings and the order to Bozzuto's employees, as within\n\n 6 its broad discretion.\n\n 7 In light of 29 U.S.C. § 160(e) and Fed. R. App. P. 28(a)(8)(A), the findings\n\n 8 and orders that Bozzuto did not timely challenge will be summarily enforced.\n\n 9 For the reasons that follow, we grant Bozzuto's petition with respect to\n\n10 the questioning of McCarty and the discharge of Greichen, and the remedial orders\n\n11 associated with those rulings, and with respect to the order that the Board's remedial\n\n12 notice be read aloud to Bozzuto employees. In all other respects, we grant the Board's\n\n13 petition for enforcement.\n\n\n\n\n14 A. The National Labor Relations Act\n\n15 Section 7 of the Act provides, as a fundamental matter, that employees\n\n16 of an employer covered by the Act\n\n17 shall have the right to self-organization, to form, join, or assist\n18 labor organizations, to bargain collectively through\n19 representatives of their own choosing, and to engage in other\n\n\n 22\n\f 1 concerted activities for the purpose of collective bargaining or\n 2 other mutual aid or protection.\n\n 3 29 U.S.C. § 157. Section 8(a) of the Act provides, in pertinent part, that \"[i]t shall be\n\n 4 an unfair labor practice for an employer--\n\n 5 (1) to interfere with, restrain, or coerce employees in the\n 6 exercise of the rights guaranteed in section 157 of [Title 29 U.S.C.],\n\n 7 29 U.S.C. § 158(a)(1) (emphases added), or\n\n 8 (3) by discrimination in regard to hire or tenure of\n 9 employment or any term or condition of employment to encourage\n10 or discourage membership in any labor organization,\n\n11 29 U.S.C. § 158(a)(3) (emphases added).\n\n\n\n\n12 1. Discipline and Discharge\n\n13 An employer violates §§ 8(a)(1) and (3) of the Act by disciplining or\n\n14 discharging an employee for engaging in union activity or other section 7 conduct.\n\n15 See, e.g., NLRB v. Transportation Management Corp., 462 U.S. 393, 397-98 (1983)\n\n16 (\"Transportation Management\"), abrogated on other grounds by Director, Office of Workers'\n\n17 Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994). \"Under\n\n18 these provisions it is undisputed that if the employer fires an employee for having\n\n19 engaged in union activities and has no other basis for the discharge, or if the reasons\n\n\n 23\n\f 1 that he proffers are pretextual, the employer commits an unfair labor practice.\"\n\n 2 Transportation Management, 462 U.S. at 398 (emphasis added).\n\n 3 However, while the Act \"makes unlawful the discharge of a worker\n\n 4 because of union activity, . . . employers retain the right to discharge workers for any\n\n 5 number of other reasons unrelated to the employee's union activities.\" Id. at 394. An\n\n 6 employer \"does not violate the NLRA . . . if any anti-union animus that he might have\n\n 7 entertained did not contribute at all to an otherwise lawful discharge for good cause.\"\n\n 8 Id. at 398. For example, \"insubordination, disobedience or disloyalty is adequate\n\n 9 cause for discharge . . . .\" NLRB v. Local Union No. 1229, International Brotherhood of\n\n10 Electrical Workers, 346 U.S. 464, 475 (1953). And the Act expressly provides that\n\n11 [n]o order of the Board shall require the reinstatement of any\n12 individual as an employee who has been suspended or\n13 discharged, or the payment to him of any back pay, if such\n14 individual was suspended or discharged for cause.\n\n15 29 U.S.C. § 160(c).\n\n16 When the General Counsel files a complaint alleging that an employee\n\n17 was discharged because of his union activities and the employer counters that it had\n\n18 an unrelated, legitimate motive for its decision, \"Wright Line analysis\" is applied, see\n\n19 Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied\n\n\n\n 24\n\f 1 455 U.S. 989 (1982); Transportation Management, 462 U.S. at 404. Under Wright Line\n\n 2 analysis, the initial question is whether the General Counsel has carried his \"burden\n\n 3 of persuading the Board that an anti-union animus contributed to the employer's\n\n 4 decision to discharge [the] employee, a burden that does not shift\"; but if that burden\n\n 5 has been carried, \"the employer, even if it failed to meet or neutralize the General\n\n 6 Counsel's showing, c[an] avoid the finding that it violated the statute by\n\n 7 demonstrating by a preponderance of the evidence that the worker would have been\n\n 8 fired even if he had not been involved with the Union.\" Id. at 395; see id. at 401-02\n\n 9 (deferring to the Board's interpretation of the Act as designating the employer's\n\n10 assertion of a purely union-unrelated motive \"as an affirmative defense that the\n\n11 employer has the burden of sustaining\"). In effect, under this sequence, \"'[i]nitially,\n\n12 the General Counsel must establish a prima facie case that protected conduct was a\n\n13 motivating factor in the employer's decision to fire. The burden then shifts to the\n\n14 employer to show, as an affirmative defense, that the discharge would have occurred\n\n15 in any event and for valid reasons.'\" NLRB v. Starbucks Corp., 679 F.3d 70, 80 (2d Cir.\n\n16 2012) (quoting NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 957 (2d Cir. 1988) (\"S.E.\n\n17 Nichols\") (other internal quotation marks omitted), cert. denied, 490 U.S. 1108 (1989)).\n\n18\n\n\n 25\n\f 1 \"[T]he Board may infer [an employer's] discriminatory motive from\n\n 2 circumstantial evidence,\" Abbey's Transportation Services, Inc. v. NLRB, 837 F.2d 575,\n\n 3 579 (2d Cir. 1988); see also NLRB v. Windsor Industries, Inc., 730 F.2d 860, 863 (2d Cir.\n\n 4 1984), which may include the employer's \"knowledge of the employees' union\n\n 5 activities,\" the timing of the discharge, or other antiunion activity by the employer,\n\n 6 S.E. Nichols, 862 F.2d at 957.\n\n\n\n\n 7 2. Interrogation\n\n 8 While § 8(a)(1) of the Act prohibits interference with, inter alia, an\n\n 9 employee's interest in joining a union, employers nonetheless have a First\n\n10 Amendment right to engage in communications with employees about union activity,\n\n11 see, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969); such communications do\n\n12 not constitute unfair labor practices so long as they \"contain[] no threat of reprisal or\n\n13 force or promise of benefit,\" 29 U.S.C. § 158(c); see, e.g., NLRB v. Montgomery Ward &\n\n14 Co., 192 F.2d 160, 163 (2d Cir. 1951) (\"inquiries made by [a] manager concerning what\n\n15 was being done in behalf of the union\"-- even in conjunction with \"statements as to\n\n16 his not liking the union\"--were not unlawful \"to the extent that they constituted no\n\n\n\n 26\n\f 1 threat or intimidation, or promise of favor or benefit in return for resistance to the\n\n 2 union\").\n\n 3 An employer's questioning of an employee will, however, amount to a\n\n 4 violation of § 8(a)(1) if \"either the words themselves or the context in which they are\n\n 5 used . . . suggest an element of coercion or interference.\" Rossmore House, 269 N.L.R.B.\n\n 6 1176, 1177 (1984) (internal quotation marks omitted), enforced sub nom. Hotel Employees\n\n 7 Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). But \"'the realities of the workplace'\"\n\n 8 require recognition that\n\n 9 \"[b]ecause production supervisors and employees often work\n10 closely together, one can expect that during the course of the\n11 workday they will discuss a range of subjects of mutual interest,\n12 including ongoing unionization efforts.\"\n\n13 Rossmore House, 269 N.L.R.B. at 1177 (quoting Graham Architectural Products v. NLRB,\n\n14 697 F.2d 534, 541 (3d Cir. 1983) (\"Graham\")). \"'To hold that any'\" and every \"'instance\n\n15 of casual questioning concerning union sympathies violates the Act'\" would thus\n\n16 \"'ignore[] the realities.'\" Rossmore House, 269 N.L.R.B. at 1177 (quoting Graham).\n\n17 Accordingly, an interrogation that is \"not itself threatening[] is not held\n\n18 to be an unfair labor practice unless it meets certain fairly severe standards,\" Bourne\n\n19 v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) (\"Bourne\"). The factors to be considered in\n\n\n\n 27\n\f 1 determining whether questioning is threatening or coercive include\n\n 2 (1) The background, i.e., is there a history of employer\n 3 hostility and discrimination?\n\n 4 (2) The nature of the information sought, e.g., did the\n 5 interrogator appear to be seeking information on which to base\n 6 taking action against individual employees?\n\n 7 (3) The identity of the questioner, i.e., how high was he in\n 8 the company hierarchy?\n\n 9 (4) Place and method of interrogation, e.g., was employee\n10 called from work to the boss's office? Was there an atmosphere of\n11 'unnatural formality'?\n\n12 (5) Truthfulness of the reply.\n\n13 Id.; see, e.g., Rossmore House, 269 N.L.R.B. at 1178 n.20 (considering the above Bourne\n\n14 factors); Regal Recycling, Inc., 329 N.L.R.B. 355, 365 (1999) (deeming employer's\n\n15 inquiries coercive in part because employees gave false answers or failed to respond);\n\n16 Town & Country Supermarkets, 340 N.L.R.B. 1410, 1423-24 (2004) (deeming employer's\n\n17 inquiries coercive in part because employee gave responses that were evasive); see also\n\n18 Vista Del Sol Health Services, Inc., 363 N.L.R.B. No. 135, slip op. at 17 (2016)\n\n19 (considering also \"the timing of the interrogation and whether the interrogated\n\n20 employees are open and active union supporters\"); Gardner Engineering, Inc., 313\n\n21 N.L.R.B. 755, 755 (1994) (deeming employer questions coercive in part because the\n\n\n 28\n\f 1 employee was not \"an open and active union supporter at the time of the\n\n 2 interrogation\"), enforced as modified on other grounds, 115 F.3d 636 (9th Cir. 1997).\n\n 3 In sum, the Bourne factors \"are not to be mechanically applied,\" Rossmore\n\n 4 House, 269 N.L.R.B. at 1178 n.20; and in order to determine whether questioning\n\n 5 constituted an unfair labor practice, the Board assesses the \"totality of the\n\n 6 circumstances,\" i.e., it considers \"whether under all the circumstances the\n\n 7 interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed\n\n 8 by the Act,\" id. at 1178 & n.20.\n\n\n\n\n 9 3. Standards of Decision\n\n10 Section 10(c) of the Act requires that the Board hear evidence on claims\n\n11 of unfair labor practices and grant relief if it finds such claims established by a\n\n12 \"preponderance\" of the evidence. 29 U.S.C. § 160(c). Sections 10(e) and 10(f) of the\n\n13 Act, 29 U.S.C. §§ 160(e) and (f), allow petitions to the relevant court of appeals by,\n\n14 respectively, the Board for enforcement of its order and the respondent in opposition.\n\n15 Each of those sections provides that on such review, the \"findings of the Board with\n\n16 respect to questions of fact if supported by substantial evidence on the record\n\n17 considered as a whole shall\" \"be conclusive,\" 29 U.S.C. §§ 160(e) and (f). In this\n\n\n 29\n\f 1 respect,\n\n 2 [s]ubstantial evidence is more than a mere scintilla. It means such\n 3 relevant evidence as a reasonable mind might accept as adequate\n 4 to support a conclusion. . . . Accordingly, it must do more than\n 5 create a suspicion of the existence of the fact to be established.\n\n 6 Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (internal quotation marks\n\n 7 omitted).\n\n 8 Further, proper assessment of \"[t]he substantiality of evidence must take\n\n 9 into account whatever in the record fairly detracts from its weight.\" Id. at 488 (emphasis\n\n10 added). However, when choosing between \"two fairly conflicting views,\" we will not\n\n11 overturn the Board's fact finding, even if we would have come to \"a different choice\n\n12 had the matter been before [us] de novo.\" NLRB v. G & T Terminal Packaging Co., 246\n\n13 F.3d 103, 114 (2d Cir. 2001) (internal quotation marks omitted). \"[R]eversal based\n\n14 upon a factual question will only be warranted if, after looking at the record as a\n\n15 whole, we are left with the impression that no rational trier of fact could reach the\n\n16 conclusion drawn by the Board.\" NLRB v. Katz's Delicatessen of Houston Street, Inc., 80\n\n17 F.3d 755, 763 (2d Cir. 1996) (internal quotation marks omitted).\n\n18 We review the Board's conclusions of law \"to ensure that they have a\n\n19 reasonable basis,\" and in so doing, we \"afford the Board a degree of legal leeway.\"\n\n\n\n 30\n\f 1 NLRB v. Caval Tool Division, 262 F.3d 184, 188 (2d Cir. 2001) (internal quotation marks\n\n 2 omitted). We \"will uphold the Board's legal determinations 'if not arbitrary and\n\n 3 capricious.'\" NLRB v. Consolidated Bus Transit, Inc., 577 F.3d 467, 474 (2d Cir. 2009)\n\n 4 (\"Consolidated Bus\") (quoting Cibao Meat Products, Inc. v. NLRB, 547 F.3d 336, 339 (2d\n\n 5 Cir. 2008)).\n\n\n\n\n 6 B. McCarty\n\n 7 Bozzuto challenges the Board's rulings that (1) Clark's single question to\n\n 8 McCarty, and (2) the 2014 discharge of McCarty, violated the Act. We find merit in\n\n 9 the first challenge, but not the second.\n\n\n\n\n10 1. Interrogation\n\n11 The ALJ noted that Clark's \"what's going on with this union stuff\"\n\n12 question to McCarty, was a \"single act of interrogation [that] might be viewed as an\n\n13 offhand and somewhat innocuous comment\"; but he found that it violated § 8(a)(1)\n\n14 simply because it \"occurred at or near the same time of the unlawfully motivated pay\n\n15 increase and the unlawful discrimination against Greichen.\" 365 N.L.R.B. No. 146,\n\n16 slip op. at 18. The Board majority, after considering, inter alia, Rossmore House and the\n\n\n 31\n\f 1 Bourne factors and the totality of the circumstances, see id. at 2-3, agreed with the ALJ.\n\n 2 It stated as follows:\n\n 3 Clark was a high-ranking official; he initiated a conversation in\n 4 which he questioned an active, but not yet open, union supporter;\n 5 McCarty . . . did not answer Clark's question; and the inquiry\n 6 occurred at or near the same time as [Bozzuto's] unlawful\n 7 discrimination against union supporter Patrick Greichen,\n 8 including his disciplinary warning and discharge, and its\n 9 unlawfully motivated pay increase to employees.\n\n10 Id. at 2 (footnotes omitted). The majority also found that \"despite McCarty's 'good\n\n11 relationship' with Clark, it is telling that McCarty did not feel comfortable telling\n\n12 Clark 'what was going on' with the organizing campaign.\" Id. at 2 n.6.\n\n13 The Board Chairman, dissenting--also considering Rossmore House and\n\n14 the Bourne factors and the totality of the circumstances, see id. at 7-9--disagreed,\n\n15 concluding that only one Bourne factor, the fact that Clark was an officer, was any\n\n16 indicator of coercion, see id. at 8. The dissent noted, inter alia, that McCarty was\n\n17 known to Bozzuto management to be a union supporter, and that \"Clark's question\n\n18 was no more objectionable than the manager's question found lawful in Rossmore\n\n19 House itself ('What is this about a union?'), and it was clearly less intrusive than the\n\n20 owner's inquiry also found lawful in Rossmore House, where the owner asked an\n\n\n\n 32\n\f 1 employee why he was 'trying to get a union in here.'\" Id. at 8 n.7 (quoting Rossmore\n\n 2 House, 269 N.L.R.B. at 1178) (emphases in dissent)).\n\n 3 Our review of the record persuades us that some of the majority's\n\n 4 findings with regard to the Clark question are not supported by the record as a\n\n 5 whole. First, neither the record nor certain other findings made by the majority\n\n 6 support its view that Clark's question was coercive in part because it was asked when\n\n 7 McCarty was \"not yet [an] open[] union supporter.\" 365 N.L.R.B. No. 146, slip op.\n\n 8 at 2. While the General Counsel's complaint had alleged that Clark's question to\n\n 9 McCarty occurred on September 27, the Board majority refused to accept that date,\n\n10 stating that \"the record and the judge's decision as a whole indicate that it occurred\n\n11 about October 1.\" Id. at 1 n.5. Yet the majority found that \"the campaign began on\n\n12 Monday, September 23,\" id. at 2 n.5; that Bozzuto's \"management became aware of\n\n13 McCarty's involvement from another employee early in the organizing campaign,\"\n\n14 id. at 2 n.10; see, e.g., id. at 1 n.4 (\"[t]he record shows that sometime before October 1,\n\n15 an employee told . . . Clark[] of McCarty's involvement in the organization efforts\");\n\n16 and that McCarty himself testified that \"' within that first week I was not secret about [the\n\n17 union campaign] at all,'\" id. at 2 n.10 (quoting Tr. 693 (emphasis ours)). The majority's\n\n18 view that \"this testimony\"--by McCarty himself--\"does not establish that McCarty was\n\n 33\n\f 1 open at the time of the interrogation,\" 365 N.L.R.B. No. 146, slip op. at 2 n.10 (emphasis\n\n 2 added), is at odds with the fact that the Union campaign began on September 23 and\n\n 3 the majority's own insistence that the interrogation occurred on October 1, which was\n\n 4 the ninth day of the campaign. And while the majority was entitled to its view that\n\n 5 management's \"aware[ness] of McCarty's involvement from another employee early\n\n 6 in the organizing campaign\" did not necessarily \"equate[] to openness on McCarty's\n\n 7 part,\" id., the majority's refusal to accept as true McCarty's own statement that he\n\n 8 became open--\"'not secret . . . at all'\"--\"'within that first week,'\" id. (quoting Tr. 693),\n\n 9 strikes us as arbitrary and capricious. The majority's view that \"the record does not\n\n10 support the conclusion that McCarty was an open union supporter at the time of the\n\n11 interrogation,\" 365 N.L.R.B. No. 146, slip op. at 2 (emphasis in original), is itself\n\n12 contradicted by the record.\n\n13 Second, the generality of Clark's question did not suggest that\n\n14 management sought to identify or discipline employees because they were union\n\n15 sympathizers; it was no more intrusive than the question asked by the manager in\n\n16 Rossmore House, \"What is this about a union,\" which was found not to violate the Act.\n\n17 The majority, without attempting any explanation as to why the language of Clark's\n\n18 question, \"what's going on with this union stuff,\" was in any way significantly\n\n\n 34\n\f 1 different, cited the fact that the employer in Rossmore House \"had not\" committed any\n\n 2 unfair labor practices before the questioning occurred. See 365 N.L.R.B. No. 146, slip\n\n 3 op. at 3 n.11. But it is hardly clear that this was not also true of the present case. The\n\n 4 only unfair labor practices by Bozzuto in the fall of 2013 that are sustained here\n\n 5 occurred on October 1: the pay raise, the restrictive speech policy of continuing to\n\n 6 employ suspended employees only if they would agree not to discuss their discipline,\n\n 7 etc., with coworkers, and the warning to Greichen to stop talking to his coworkers\n\n 8 about conditions of employment. If the majority was correct in its finding that\n\n 9 McCarty was not an open union supporter at the time of Clark's question, that\n\n10 question would had to have been asked prior to September 30; and at that time\n\n11 Bozzuto--indistinguishably from employer in Rossmore House--would not have\n\n12 committed any prior unfair labor practice.\n\n13 We also note that McCarty testified that the Clark question occurred in\n\n14 the second week of the Union campaign (see Tr. 485). The campaign had begun on\n\n15 Monday September 23. While the majority stated that \"[i]t goes without saying that\n\n16 the week after the September 23 start date of the campaign was the week of October 1,\"\n\n17 365 N.L.R.B. No. 146, slip op. at 2 n.5 (emphasis added)--a convenient date because\n\n18 that was the date on which there were confirmable unfair labor practices--in fact that\n\n\n 35\n\f 1 second week began on Monday September 30, a date that itself may, consistent with\n\n 2 McCarty's testimony, have been the day of Clark's question. September 30, however,\n\n 3 was prior to Bozzuto's commission of any unfair labor practice.\n\n 4 Further, we do not find that the record supports the majority's view that\n\n 5 McCarty's response to Clark's question indicates that the question was coercive on the\n\n 6 basis that \"McCarty did not feel comfortable telling Clark 'what was going on' with\n\n 7 the organizing campaign,\" id. at 2 n.6. As the Board has noted in the past, \"[i]t is\n\n 8 actually none of [management's] lawful business as to [an employee's] evaluation of\n\n 9 union activities,\" Medical Center of Ocean County, 315 N.L.R.B. 1150, 1154 (1994)\n\n10 (\"Medical Center\"), and McCarty's response apparently so recognized. While the\n\n11 majority again saw this case as different from Rossmore House, stating that the\n\n12 employee there \"responded to the inquiry ['What is this about a union,'] candidly and\n\n13 without hesitation,\" 365 N.L.R.B. No. 146, slip op. at 3 n.11, the record here contains\n\n14 no indication that McCarty had any hesitance whatever in saying \"I'm not going to\n\n15 talk about it with you, Mr. Clark\" (Tr. 485). That answer provided no information\n\n16 that was responsive to the question, but it also evinced no discomfort in telling Clark,\n\n17 in a most civil way, that the union activity was none of Clark's lawful business.\n\n18 McCarty's response cannot be viewed as an indicium of coercion.\n\n\n 36\n\f 1 We conclude, as did the dissent, that the record supports the conclusion\n\n 2 that all of the Bourne factors, except Clark's position as a company officer, point\n\n 3 toward a finding that Clark's question was not coercive and did not violate the Act.\n\n 4 There is no evidence in the record as to any history whatever prior to this union-\n\n 5 organizing effort of any animosity of Bozzuto toward unions. Indeed, the ALJ\n\n 6 expressly found that Bozzuto had not violated the Act in the past (and he saw no\n\n 7 indication that it was likely to do so in the future). See 365 N.L.R.B. No. 146, slip op.\n\n 8 at 19. The question was asked by Clark during a chance encounter as McCarty was\n\n 9 leaving a restroom. It was asked of an employee who was, by then, an open\n\n10 supporter of the union. The question was entirely general, the sort of question that\n\n11 might pass between any two employees, regardless of rank; it did not ask about\n\n12 individuals, and it carried no portent of discipline. It produced McCarty's direct\n\n13 response that he would not discuss the matter with Clark. And no further questions\n\n14 were asked.\n\n15 The Board majority in finding Clark's question coercive cited nearly two\n\n16 dozen cases. All of the cases in which a question was found to be coercive involved\n\n17 either supervisors calling employees into their offices for closed-door exploration of\n\n18 the identities of union supporters, or repeated or insistent questioning, or threats of\n\n\n 37\n\f 1 discipline, or imposition of more severe working conditions, or threats to close or\n\n 2 move the company, or a backdrop of numerous unfair labor practices. See, e.g., Seton\n\n 3 Co., 332 N.L.R.B. 979, 981-82 (2000) (in questioning that took place \"against a\n\n 4 background of numerous other unfair labor practices including threats of plant\n\n 5 closure . . . and more onerous working conditions,\" supervisor interrogated employee\n\n 6 as to whether he had been \"talking about the Union\" and threatened the employee\n\n 7 that \"if he was caught talking about the Union he could be fired\"); Acme Bus Corp., 320\n\n 8 N.L.R.B. 458, 461, 478 (1995) (for several months, supervisor \"spent about 45 minutes\n\n 9 of every 2 hours . . . speaking to employees regarding the Union,\" asking, inter alia,\n\n10 as directed by upper management, \"whether the[ employees] supported the Union,\"\n\n11 and \"where union meetings would be held,\" and reported back to management on his\n\n12 findings); Management Consulting, Inc., 349 N.L.R.B. 249, 258 (2007) (manager called\n\n13 an employee into his office and asked the employee a series of questions as to his\n\n14 union activity and that of his fellow employees); Medical Center, 315 N.L.R.B. at 1154\n\n15 (supervisor called employee, who was not an open union supporter, \"into his office\n\n16 and closed the door\" and asked employee about union activity; employee had worked\n\n17 at this company for 10 years and had \"never worked with [that supervisor] . . . and\n\n18 had never been called into an office for a conversation with his supervisor where the\n\n\n 38\n\f 1 door was closed\"). Not one of the cases relied on by the majority found the Act\n\n 2 violated in circumstances paralleling those here: a single very general question, asked\n\n 3 in a chance encounter, by a supervisor whose company had no history of union\n\n 4 animosity, where the question was met with a simple and forthright refusal to\n\n 5 discuss, was not followed by any questions to McCarty or any other employee, and\n\n 6 was not accompanied by pervasive unlawful conduct as occurred in the cases cited\n\n 7 by the Board majority.\n\n 8 In these circumstances, which fall far short of meeting the \"fairly severe\n\n 9 standards\" needed to constitute an unfair labor practice, Bourne, 332 F.2d at 48, the\n\n10 Board's finding instead comes close to creating a per se rule that no manager can,\n\n11 without committing an unfair labor practice, ask an employee any question about\n\n12 ongoing union activity. We conclude that the Board's finding that Bozzuto\n\n13 unlawfully interrogated McCarty is not supported by the record as a whole.\n\n\n\n\n14 2. McCarty's Discharge\n\n15 In contrast, we reject, without a need for extended discussion, Bozzuto's\n\n16 challenge to the finding that it violated the Act by terminating McCarty's employment\n\n17 in February 2014. The record is clear that Bozzuto told McCarty he was being\n\n\n 39\n\f 1 discharged because of low productivity, and that the basis for that assessment was\n\n 2 data that, although originally entered correctly in the company's computer system,\n\n 3 had thereafter been altered to decrease McCarty's perceived level of productivity.\n\n 4 Bozzuto's own eventual internal investigation in April 2014 confirmed that McCarty's\n\n 5 data had been so altered.\n\n 6 Bozzuto's contention that, despite the fact that the alterations had been\n\n 7 made using a supervisor's access code, its internal investigation was unable, because\n\n 8 of the company's lax security, to establish \"conclusively\" who made those alterations\n\n 9 (Bozzuto reply brief in support of petition for review at 26), and hence that the\n\n10 alterations themselves should not be attributed to management--even if it were\n\n11 sustainable--is of no moment. The fact remains that Bozzuto discharged McCarty on\n\n12 the basis of fraudulent data.\n\n13 Bozzuto's contention that its discharge of McCarty did not violate the Act\n\n14 because the company did not know at that time that his productivity data had been\n\n15 altered--because it did not receive McCarty's screen shots proving such alterations\n\n16 until after his discharge--is doubly flawed. First, the distorted notion that an\n\n17 employer could successfully defend its improper firing of an employee simply\n\n18 because the employee did not show the employer his proof that the employer's own\n\n\n 40\n\f 1 relevant records were fraudulent, would turn the law on its head. Second, the record\n\n 2 amply supports the Board's finding that Bozzuto's assertion that McCarty was being\n\n 3 fired because of low productivity was pretextual. In August 2013, just a month before\n\n 4 commencing his union activity, McCarty had been celebrated by Bozzuto for his high\n\n 5 level of productivity (see Bozzuto's High Achievers, August 23-25, 2013, \"Todd\n\n 6 McCarty\" (\"always doing the right job!\")). And McCarty testified that in the past\n\n 7 when he brought compensation discrepancies to management's attention they would\n\n 8 be corrected. Yet after McCarty's involvement with the Union was known to\n\n 9 management, Bozzuto chose to ignore his persistent complaints to supervisors and\n\n10 management that his productivity data were being altered, and instead to suspend\n\n11 him, and five weeks later to fire him, for low productivity, without making any effort\n\n12 to look into his complaints of alteration. After receiving the NLRB's April 2014 letter,\n\n13 it took Bozzuto less than five days to verify what McCarty had been protesting--that\n\n14 his data had been altered.\n\n15 The Board's finding that the discharge of McCarty was motivated by\n\n16 antiunion animus and violated the Act was supported by the record as a whole.\n\n17 Bozzuto's petition for review in this regard is denied.\n\n\n\n\n 41\n\f 1 C. The Discharge of Greichen\n\n 2 In ruling that the discharge of Greichen violated the Act, the Board\n\n 3 majority found that Bozzuto's stated reason for summoning him to the meeting on\n\n 4 October 8--i.e., to enlighten and reassure Greichen as to the bona fides of the\n\n 5 company's labor standards--\"was a pretext,\" 365 N.L.R.B. No. 146, slip op. at 4, and\n\n 6 instead was \"an outgrowth of [Bozzuto's] earlier unlawful warning [on October 1] to\n\n 7 Greichen for discussing those standards with other employees,\" id. (emphasis added);\n\n 8 (see also Board brief in support of petition for enforcement at 40 (arguing that\n\n 9 substantial evidence supports finding the October 8 events were linked to Greichen's\n\n10 \"earlier protected conduct\")). The majority found that Greichen would not have been\n\n11 summoned to an October 8 meeting had it not been for his pre-October 1 protected\n\n12 conduct. 365 N.L.R.B. No. 146, slip op. at 5 n.19; see also id. at 4 (opining that if\n\n13 Bozzuto was seriously concerned about Greichen's spreading accusations of corporate\n\n14 dishonesty, \"it would have done more than simply discharge Greichen\"). The\n\n15 majority also found that when Winans and Vaughan told Greichen that he would not\n\n16 be discharged if he attended the meeting, they did not tell him he would not be\n\n17 disciplined in any other way. See id. at 4 n.15. We conclude that none of these\n\n18 findings are supported by substantial evidence in the record as a whole.\n\n\n 42\n\f 1 First, to support its inference that summoning Greichen to the October\n\n 2 8 meeting was pretextual, the Board principally stated that\n\n 3 [t]he evidence shows that the meeting was not organized in a manner\n 4 typical to those held to address complaints about production and safety\n 5 standards. Jamie Wright, the industrial engineer Clark directed to\n 6 participate in the meeting, testified that, contrary to past practice,\n 7 Clark was \"vague and [unspecific,] saying [he wanted] to have a\n 8 meeting with an associate about standards.\" Wright asked for\n 9 more information and Clark declined to give him any more\n10 information, noting only that the meeting was about standards.\n11 Wright testified that he was not told about the nature of the\n12 complaint or given any information to prepare for the meeting and that\n13 it was \"atypically vague\" and \"frustrating.\"\n\n14 Id. at 4 (emphases added). We have several difficulties with this rationale, given\n\n15 Wright's testimony as a whole.\n\n16 Although the Board emphasized the facts that Rick Clark did not tell\n\n17 Wright either who the employee was or the nature of the concerns, some lack of\n\n18 specificity is understandable, given that Greichen was not complaining about a\n\n19 particular task or standard but had made a broadside assault on the company,\n\n20 claiming that it was manipulating the labor standards every day for the purpose of\n\n21 cheating the employees. And as to any impact of the lack of detail, Wright said it was\n\n22 \"[a] little frustrating\" (Tr. 606), that he was only \"vaguely frustrated and I got over it\n\n23 in a hurry. I mean this is not a big ordeal [sic]. To me it was just okay, Rick, you want\n\n\n 43\n\f 1 me to prepare for a meeting. Okay. Alright. I'll talk about standards. . . . [And the\n\n 2 identity of the employee] wasn't something that mattered to me\" (id. at 614-15; id.\n\n 3 at 611 (\"It was about standards.\").)\n\n 4 Further, while the Board also emphasized that Wright himself did not\n\n 5 make special preparations for this meeting, Wright testified that when Clark told him\n\n 6 on October 8 \"to attend a meeting with an employee who had questions about\n\n 7 standards,\" Wright asked whether he could bring \"David Heatley, who was [his]\n\n 8 senior industrial engineer, and [Clark] said yes. And David developed a small . . .\n\n 9 packet of information to review with the employee\" (Tr. 557).\n\n10 The Board found that Heatley's preparation of materials for the October\n\n11 8 meeting, \"which included a 1-page example of Greichen's work,\" did not undermine\n\n12 \"Wright's testimony or [the Board's] conclusion that the stated reason for the meeting\n\n13 was a pretext,\" giving as its reasons only that \"Heatley did not testify\" in the hearing\n\n14 before the ALJ and that there was \"no evidence indicating why Heatley chose to\n\n15 include an example of Greichen's work in the packet of materials,\" 365 N.L.R.B. No.\n\n16 146, slip op. at 4 n.17. It is true that Heatley did not testify. But there is no dispute\n\n17 that he had in fact prepared materials for the meeting, apparently having determined\n\n18 that the employee in question was Greichen (see, e.g., Tr. 612-13); that Heatley\n\n\n 44\n\f 1 appeared for the scheduled meeting with the prepared materials in hand (see id.\n\n 2 at 614-15, 559); that he gave copies of those materials to Wright, his boss (see id.\n\n 3 at 615); and that the materials themselves were introduced in evidence at the hearing\n\n 4 before the ALJ (see id. at 557-58). Further, Wright testified before the ALJ as to the\n\n 5 nature of the materials, which were screen prints of a \"portion of a labor standards\n\n 6 table,\" an example of a \"work assignment that ha[d] not been . . . assigned to\n\n 7 somebody yet,\" and an assignment that \"actually had been assigned to and was\n\n 8 worked [on] by Mr. Greichen.\" (Id. at 558.) Wright also testified that he had \"used\n\n 9 materials like this before in meetings with other employees.\" (Id.)\n\n10 In sum, the Board's finding that \"the [October 8] meeting was not\n\n11 organized in a manner typical to those held to address complaints about production\n\n12 and safety standards,\" 365 N.L.R.B. No. 146, slip op. at 4, is not supported by the\n\n13 record as a whole. It is instead belied by the facts that the chief industrial engineer\n\n14 was asked to attend the meeting; he was told that the subject was labor standards; he\n\n15 asked to have his senior assistant engineer attend the meeting; that assistant\n\n16 assembled, in advance of the meeting, materials on the labor standards and reporting\n\n17 forms to be used by employees; the assistant engineer determined the identity of the\n\n18 employee in question and included in the meeting materials an example of that\n\n\n 45\n\f 1 employee's records; the assistant engineer gave copies of the materials to the chief\n\n 2 engineer for the meeting; both engineers showed up at the time and place scheduled\n\n 3 for the meeting; and the chief engineer testified that he had \"used materials like this\n\n 4 before in meetings with other employees\" (Tr. 558).\n\n 5 Given the context of a meeting called to correct Greichen's understanding\n\n 6 of the labor standards, it is difficult to fathom the Board's stated need for additional\n\n 7 evidence as to why the materials brought to the meeting included not only generic\n\n 8 labor standard materials but also an example of Greichen's own work, as a frame of\n\n 9 reference with which Greichen would be familiar. What does seem atypical was the\n\n10 accusatory nature of Greichen's complaint.\n\n11 Second, the Board appears to have found that Greichen in fact was not\n\n12 given any assurance \"that there would be no adverse consequences if he attended the\n\n13 [October 8] meeting,\" 365 N.L.R.B. No. 146, slip op. at 4 n.15 (emphasis added), stating\n\n14 that the recorded evidence\n\n\n\n\n15 of Winans' and Greichen's conversation prior to the meeting\n16 reflects only that Greichen understood that he would not be\n17 discharged if he attended the meeting, rather than that he would\n18 not be disciplined as he had been just a week earlier,\n\n\n\n 46\n\f 1 id. (first emphasis added; other emphases in original). The tape itself does not reflect\n\n 2 that Greichen's understanding was so limited, for in that conversation--surreptitiously\n\n 3 recorded by Greichen--his acknowledgement of his understanding as to whether he\n\n 4 would or would not be discharged was not the end of the discussion (see\n\n 5 Transcription of Tapes (\"Tape\") at 21). Rather, the Board failed to note that after that\n\n 6 acknowledgement, Greichen evinced concern precisely about the possibility of lesser\n\n 7 disciplines as well, as he proceeded to point out that he had attended a meeting the\n\n 8 week before, in which he was criticized for his \"behavior\" (id.). And after further\n\n 9 discussion, Vaughan reiterated that if Greichen refused to attend the meeting \"that\n\n10 is considered insubordination\" and \"you're going to be suspended pending\n\n11 [termination]\" (Tape at 24); but Vaughan told him if you do attend \"there's nothing\n\n12 here that's unsafe or discriminatory or harassment in this meeting,\" \"you're not going\n\n13 to lose incentive [or pay],\" \"we're not doing anything negative to you\" (id.) (emphases\n\n14 added)). Greichen then said \"My choice is not to go to the meeting.\" (Tape at 24-25.)\n\n15 The finding that Greichen did not understand that attending the meeting would not\n\n16 expose him to \"any[]\" discipline is not supported by the record.\n\n17 Finally, while the Board majority agreed with the ALJ's view that it was\n\n18 impossible to \"separate\" the October 8 order that Greichen meet with management\n\n\n 47\n\f 1 from the improper October 1 warning to Greichen that he should not discuss terms\n\n 2 and conditions of employment with his coworkers, see, e.g., 365 N.L.R.B. No. 146, slip\n\n 3 op. at 17 (ALJ stating \"I frankly don't see how one can separate these\"); id. at 4 (Board\n\n 4 \"agree[ing] with the judge that [Bozzuto's] insistence that Greichen attend the October\n\n 5 8 meeting to discuss his ongoing concerns about [Bozzuto's] productivity standards\n\n 6 was an outgrowth of [Bozzuto's] earlier unlawful warning [on October 1] to Greichen\n\n 7 for discussing those standards with other employees\"), the record does not reveal\n\n 8 such a connection. We have seen no evidence, for example, that after October 1\n\n 9 Bozzuto subjected Greichen to surveillance to see whether he was disregarding its\n\n10 (unlawful) instruction not to discuss working conditions with his coworkers, or\n\n11 otherwise targeted him in an effort to \"create[ an] allegedly 'for cause' basis for\n\n12 discharge,\" Consolidated Bus, 577 F.3d at 479 (emphasis in original); see id. at 474 n.2\n\n13 (employer conceded that it followed and surveilled an employee, and singled him out\n\n14 for performance testing because of its antiunion animus). Rather, on October 8,\n\n15 Bozzuto was responding to Greichen's approach to Winans, and to Greichen's\n\n16 disclosure that he had begun engaging in conduct that was qualitatively different.\n\n17 Whereas Greichen had previously been complaining merely that the\n\n18 standards did not provide enough time to complete the assigned tasks, there is no\n\n\n 48\n\f 1 evidence that his October 1 complaints impugned the company's honesty and\n\n 2 integrity. On October 8, however, \"Greichen told Winans that 'he tells anybody and\n\n 3 everybody he can that he believes [the Company is] purposely changing the daily\n\n 4 standards in order to screw the associates'\" (Board brief in support of petition for\n\n 5 enforcement at 8-9 (quoting Winans Memorandum of Greichen's October 8\n\n 6 statements (emphases ours))). This is a serious qualitative difference. As stated by\n\n 7 the Board dissenter, \"This should go without saying, but I will say it anyway:\n\n 8 complaining that [Bozzuto's] production standards are too demanding and accusing\n\n 9 [Bozzuto] of being a wage cheat are very different matters . . . .\" 365 N.L.R.B. No. 146,\n\n10 slip op. at 10 (emphases added). The Board majority's view that if Greichen had made\n\n11 no previous complaints about the standards he would not have been called upon by\n\n12 management to address his accusations of corporate dishonesty--which he said he\n\n13 was telling to anyone who would listen--is unrealistic.\n\n14 In sum, despite Bozzuto's now-conceded violation of the Act on October\n\n15 1 by warning Greichen for complaining to coworkers about the stringency of the labor\n\n16 standards, we cannot conclude that substantial evidence supports the Board's finding\n\n17 that, if he had not previously complained about tight labor standards, Greichen\n\n18 would not have been ordered to attend the October 8 meeting with respect to his\n\n\n 49\n\f 1 accusation--which, according to his own description, he widely trumpeted--that\n\n 2 Bozzuto was intentionally \"screw[ing]\" the employees.\n\n 3 Greichen's refusal to attend the meeting constituted insubordination. For\n\n 4 such conduct, Bozzuto had a no-tolerance policy that predated any union-related\n\n 5 activity and called for termination of an employee upon the first occurrence of\n\n 6 insubordination. Bozzuto's insistence that Greichen, in light of his accusations of\n\n 7 cheating, attend a meeting with the engineers in order to educate him as to why he\n\n 8 was wrong about the labor standards, and its termination of his employment upon\n\n 9 his steadfast refusal to attend, did not violate the Act.\n\n\n\n\n10 D. The Board's Remedies\n\n11 In light of our conclusions that Bozzuto did not violate the Act in\n\n12 discharging Greichen and posing the \"what's going on with this union stuff\" question\n\n13 to McCarty, the remedies ordered by the Board with respect to those findings are not\n\n14 enforced.\n\n15 We also do not enforce the Board's order that its findings of unfair labor\n\n16 practices and its remedial notice be read aloud by Clark, or by a Board member in\n\n17 Clark's presence, at a meeting of Bozzuto's employees. The ALJ declined to\n\n\n 50\n\f 1 recommend such an extraordinary remedy, finding it inappropriate. While the Board\n\n 2 majority ordered the public reading, it did so without making findings contrary to\n\n 3 those of the ALJ that Bozzuto had not been guilty of any prior unfair labor practices\n\n 4 and that it was not likely to engage in unfair labor practices in the future. In these\n\n 5 circumstances, and with two of the unfair labor practice findings of the ALJ and the\n\n 6 Board being overturned, the extraordinary remedy of a public reading to employees\n\n 7 is even more inappropriate.\n\n 8 Bozzuto remains liable for engaging in several unfair labor practices--\n\n 9 raising wages in an attempt to discourage employees from joining the Union,\n\n10 adopting a restrictive speech policy for disciplined employees, warning Greichen\n\n11 against talking with coworkers about conditions of employment, and suspending and\n\n12 firing McCarty in reliance on fraudulent alterations of his production records. These\n\n13 are not inconsequential violations. But they do not warrant an order for a public\n\n14 reading.\n\n\n\n\n 51\n\f1 CONCLUSION\n\n\n\n\n2 We have considered all of the parties' arguments in support of their\n\n3 respective positions on these petitions and, except as indicated above, have found\n\n4 them to be without merit. The petition for review is granted with respect to the\n\n5 rulings and orders relating to the interrogation of McCarty and the discharge of\n\n6 Greichen, and with respect to the order that the Board's remedial notice be read aloud\n\n7 at a meeting of employees. In all other respects, the petition for review is denied. The\n\n8 Board's cross-petition for enforcement is granted in all respects except those in which\n\n9 the petition for review is granted.\n\n\n\n\n 52\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: BOZZUTO'S INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-06-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18-125(L)\\n Bozzuto's Inc. v. NLRB\\n\\n\\n\\n\\n 1 UNITED STATES COURT OF APPEALS\\n\\n 2 FOR THE SECOND CIRCUIT\\n\\n 3 ------\\n\\n 4 August Term, 2018\\n\\n 5 (Argued: November 29, 2018 Decided: June 24, 2019)\\n\\n 6 Docket Nos. 18-125(L), 18-331(XAP)\\n\\n 7 _________________________________________________________\\n\\n 8 BOZZUTO'S INC.,\\n 9 Petitioner-Cross-Respondent,\\n\\n10 - v. -\\n\\n11 NATIONAL LABOR RELATIONS BOARD,\\n\\n12 Respondent-Cross-Petitioner.\\n13 _________________________________________________________\\n\\n14 Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.\\n\\n15 Cross-petition by respondent National Labor Relations Board for\\n\\n16 enforcement of an order (A) holding that petitioner employer engaged in unfair labor\\n\\n17 practices in violation of the National Labor Relations Act (the \\\"Act\\\"), 29 U.S.C.\\n\\n18 §§ 158(a)(1) and (3), by, inter alia, announcing wage increases in conjunction with\\n\\f 1 urging employees to decline to join a union, asking one pro-union employee \\\"what's\\n\\n 2 going on with this union stuff,\\\" later suspending and then discharging him for\\n\\n 3 allegedly low productivity, and discharging another pro-union employee for\\n\\n 4 insubordination in refusing to attend a meeting; and (B) requiring employer to (1)\\n\\n 5 cease and desist from such or similar violations, (2) reinstate the insubordinate\\n\\n 6 employee, (3) compensate and make whole both discharged employees, (4) post the\\n\\n 7 Board's remedial notice listing the employer actions found to have violated the Act,\\n\\n 8 and (5) hold a meeting at which that notice is read aloud to its employees by, or in the\\n\\n 9 presence of, employer's senior vice president. See Bozzuto's, Inc., 365 N.L.R.B. No. 146\\n\\n10 (2017).\\n\\n11 Employer petitions for review of the Board's holdings that the above\\n\\n12 single question constituted impermissible interrogation and that the discharges were\\n\\n13 motivated by antiunion animus, contending that those findings are not supported by\\n\\n14 substantial evidence; and it contends that the Board abused its discretion in ordering\\n\\n15 remedies for the discharged employees and ordering that the remedial notice be read\\n\\n16 aloud at a meeting of employees.\\n\\n17 The petition for review is granted to the extent that it challenges (1) the\\n\\n18 Board's rulings and orders with regard to (a) \\\"interrogation\\\" and (b) the discharge of\\n\\n\\n 2\\n\\f 1 an employee for insubordination, and (2) the order that the Board's remedial notice\\n\\n 2 be read aloud at a meeting of employees. In all other respects, the petition for review\\n\\n 3 is denied. The Board's cross-petition for enforcement is granted in all respects except\\n\\n 4 those in which the petition for review is granted.\\n\\n 5 MIGUEL A. ESCALERA, Jr., Hartford, Connecticut (Sheldon D.\\n 6 Myers, Kainen, Escalera & McHale, Hartford, Connecticut,\\n 7 on the brief), for Petitioner-Cross-Respondent.\\n\\n 8 DAVID A. SEID, Washington, D.C. (Peter B. Robb,General\\n 9 Counsel, John W. Kyle, Deputy General Counsel, Linda\\n10 Dreeben, Deputy Associate General Counsel, Julie Brock\\n11 Broido, Supervisory Attorney, National Labor Relations\\n12 Board, Washington, D.C., on the brief), for Respondent-Cross-\\n13 Petitioner.\\n\\n\\n\\n14 KEARSE, Circuit Judge:\\n\\n15 Petitioner-cross-respondent Bozzuto's Inc. (\\\"Bozzuto\\\") petitions for\\n\\n16 review of so much of an order of respondent-cross-petitioner National Labor\\n\\n17 Relations Board (\\\"NLRB\\\" or \\\"Board\\\"), see Bozzuto's, Inc., 365 N.L.R.B. No. 146 (2017),\\n\\n18 as (A) found Bozzuto committed unfair labor practices in violation of §§ 8(a)(1) and/or\\n\\n19 (3) of the National Labor Relations Act (the \\\"Act\\\"), 29 U.S.C. §§ 158(a)(1) and (3), in\\n\\n20 its treatment of two employees who were union supporters, by asking Todd McCarty\\n\\n21 \\\"what's going on with this union stuff,\\\" later discharging him for allegedly low\\n\\n\\n 3\\n\\f 1 productivity, and discharging Patrick Greichen for alleged insubordination in\\n\\n 2 refusing to attend a meeting to which he was summoned by management; and (B)\\n\\n 3 orders Bozzuto to reinstate Greichen, to provide Greichen and McCarty with backpay\\n\\n 4 and compensation for other losses, and to read the Board's remedial notice, detailing\\n\\n 5 Bozzuto's violations of the Act, aloud at a meeting of its employees. In support of its\\n\\n 6 petition, Bozzuto contends principally that substantial evidence did not support the\\n\\n 7 Board's findings that the single question to McCarty was coercive or that either\\n\\n 8 McCarty or Greichen was terminated because of antiunion animus or protected\\n\\n 9 activity, and that the Board abused its discretion in ordering Bozzuto to reinstate\\n\\n10 Greichen with backpay and to read the remedial order aloud to employees.\\n\\n11 The Board cross-petitions for enforcement of its order which--in addition\\n\\n12 to the above aspects challenged by Bozzuto-- found that Bozzuto violated the Act by\\n\\n13 announcing wage increases in conjunction with urging employees to decline to join\\n\\n14 a union; by maintaining a restrictive speech policy that conditioned continued\\n\\n15 employment for suspended employees on their written agreement not to discuss with\\n\\n16 coworkers terms of employment, including discipline; by disciplining Greichen for\\n\\n17 talking with other Bozzuto employees about conditions of employment; and by\\n\\n18 suspending McCarty for supposedly low productivity.\\n\\n\\n 4\\n\\f 1 For the reasons that follow, we grant Bozzuto's petition for review to the\\n\\n 2 extent that it challenges (1) the Board's rulings and orders with regard to the\\n\\n 3 \\\"interrogation\\\" of McCarty and the discharge of Greichen, and (2) the order that the\\n\\n 4 Board's remedial notice be read aloud at a meeting of employees. In all other\\n\\n 5 respects, the petition for review is denied. The Board's cross-petition for enforcement\\n\\n 6 is granted in all respects except those in which the petition for review is granted.\\n\\n\\n\\n\\n 7 I. BACKGROUND\\n\\n\\n\\n\\n 8 The observable events leading to these administrative proceedings,\\n\\n 9 despite some vagueness in the testimony as to their precise timing, are largely\\n\\n10 undisputed. Bozzuto operates wholesale warehouses in Connecticut for the\\n\\n11 distribution of food products, employing approximately 450 production workers in\\n\\n12 capacities such as loaders, forklift operators, and \\\"selectors.\\\" A selector's job includes\\n\\n13 receiving orders for food products, driving a motorized vehicle to the section in\\n\\n14 which the ordered products are stored, and loading the products onto portable\\n\\n15 platforms that are ultimately carried by truck to the customers.\\n\\n\\n\\n\\n 5\\n\\f 1 In order to evaluate selectors' productivity, Bozzuto attaches machine-\\n\\n 2 readable tags to each warehouse product and uses a computerized system to compare\\n\\n 3 the speed with which selectors complete their tasks against a standard time--which\\n\\n 4 the parties call the \\\"labor standard.\\\" The labor standards were established by Bozzuto\\n\\n 5 engineers after months of studies, in accordance with accepted engineering methods,\\n\\n 6 calculating average times needed to complete specific tasks. The resulting standards\\n\\n 7 are posted publicly on Bozzuto bulletin boards for the employees' information.\\n\\n 8 A Bozzuto selector whose performance exceeded the labor standard on\\n\\n 9 a weekly basis became eligible for added incentive pay; a selector whose performance\\n\\n10 failed, for a given week, to meet at least 95 percent of the labor standard was subject\\n\\n11 to potential discipline.\\n\\n12 McCarty and Greichen were employed at a Bozzuto warehouse as\\n\\n13 selectors. McCarty had frequently earned extra incentive pay for exceeding the labor\\n\\n14 standards. In August 2013, Bozzuto posted a commendation for his \\\"outstanding job\\n\\n15 selecting . . . food products\\\" and his \\\"expertise and dedication to always doing the\\n\\n16 right job!\\\" (Bozzuto's High Achievers, August 23-25, 2013, \\\"Todd McCarty\\\" (\\\"GREAT\\n\\n17 JOB, TODD!!!!\\\").)\\n\\n\\n\\n\\n 6\\n\\f 1 A. The events of mid-September through October 1, 2013\\n\\n 2 In September 2013, McCarty contacted the United Food and Commercial\\n\\n 3 Workers Union, Local 919 (the \\\"Union\\\"); shortly thereafter, he, Greichen, and two\\n\\n 4 other Bozzuto employees met with a Union representative. On Monday September\\n\\n 5 23, McCarty and Greichen began handing out union authorization cards to their\\n\\n 6 fellow production workers, urging them to sign up.\\n\\n 7 The effort to unionize Bozzuto employees did not long remain covert.\\n\\n 8 On September 26, an employee posted a message to Bozzuto's internal electronic\\n\\n 9 message board stating that union authorization cards were being distributed.\\n\\n10 McCarty had initially hoped the unionization effort would escape management's\\n\\n11 notice for at least the first few weeks; but it did not, and within the first week he chose\\n\\n12 to be open about his participation. By September's end, the Union had obtained 84\\n\\n13 signed authorization cards from Bozzuto employees.\\n\\n14 Bozzuto's management was generally aware in that first week that a\\n\\n15 union-organizing effort was under way. On Monday September 30, Bozzuto's Vice\\n\\n16 President of Human Resources Carl Koch posted a message stating that Bozzuto was\\n\\n17 \\\"aware of the current activity.\\\"\\n\\n\\n\\n\\n 7\\n\\f 1 On or about October 1, as McCarty exited a restroom near a Bozzuto\\n\\n 2 work area, he encountered Bozzuto's Senior Vice President Rick Clark, with whom\\n\\n 3 he had a good relationship. Clark asked, \\\"Hey, Todd, what's going on with this\\n\\n 4 Union stuff?\\\" McCarty replied, \\\"I'm not going to talk about it with you, Mr. Clark.\\\"\\n\\n 5 (Hearing Transcript (\\\"Tr.\\\") 485.) That was the end of the conversation.\\n\\n 6 On October 1, Bozzuto issued a written announcement that stated in\\n\\n 7 pertinent part as follows:\\n\\n 8 We have been advised by a number of our associates that\\n 9 the [Union] is attempting to unionize our associates and asked\\n10 them to sign a union card. The associates that came to us did so\\n11 out of concern for themselves and their fellow workers stating\\n12 that having a union is not in the best interest of Bozzuto[] or the\\n13 associates.\\n\\n14 ....\\n\\n15 We want all of our associates to understand that they are\\n16 not required to sign a union card. It's absolutely ok to say NO.\\n17 If anyone harasses you about that, tell them to stop and feel free\\n18 to seek our assistance.\\n\\n19 We do not need a union at Bozzuto[]. Unions do not\\n20 provide jobs, only successful companies can . . . .\\n\\n21 (Emphasis in original.) On the same day, Bozzuto posted a memorandum\\n\\n22 announcing that nearly all production workers would be receiving hourly pay\\n\\n\\n\\n 8\\n\\f 1 increases ranging from 50 cents to two dollars per hour, retroactive to September 29,\\n\\n 2 2013.\\n\\n 3 Also on October 1, 2013, Greichen was summoned to a meeting with\\n\\n 4 several members of Bozzuto's management team: Senior Vice President Clark,\\n\\n 5 Human Resources Vice President Koch, Associate Relations and Development\\n\\n 6 Manager Doug Vaughan, and Head of Security Bill Glass. Bozzuto maintains that the\\n\\n 7 meeting was called because Clark had been told by other employees that Greichen\\n\\n 8 was displaying erratic behavior and making various negative comments about\\n\\n 9 Bozzuto's labor standards being too stringent, complaining that they did not, in\\n\\n10 Greichen's view, allow enough time for employees to complete their assigned tasks.\\n\\n11 As reflected in a memorandum prepared by Vaughan from his notes of the meeting,\\n\\n12 Clark informed Greichen \\\"that several associates\\\" had \\\"commented on how his\\n\\n13 behavior had been increasingly more erratic and some hourly associates considered\\n\\n14 his behavior 'scary,'\\\" and that \\\"it was management's job to provide a safe and clean\\n\\n15 work environment for all associates\\\" and to address \\\"comments . . . made to\\n\\n16 management that raise a red flag.\\\"\\n\\n17 Greichen was warned against continuing his behavior and told he\\n\\n18 \\\"needed to stop disrupting the work environment by making negative comments in\\n\\n\\n 9\\n\\f 1 the aisles, such as[] being forced to work 20 hours per day or comments about\\n\\n 2 needing three legs to do the work here, in the hallway in front of his peers.\\\"\\n\\n\\n\\n\\n 3 B. The Discharge of Greichen on October 8\\n\\n 4 On October 8, 2013, Greichen complained first to his supervisors, and\\n\\n 5 thereafter to Bozzuto's then-Grocery Distribution Manager Jason Winans, that the\\n\\n 6 labor standard pertaining to his assigned tasks for the day had been unfairly\\n\\n 7 shortened, making timely completion of his work impossible. Winans's ensuing\\n\\n 8 memorandum summarizing his conversation with Greichen stated that Winans\\n\\n 9 \\\"attempt[ed] to calm Mr. Greichen down\\\" by reviewing with him the computer\\n\\n10 records as to individual assignments; but when Winans \\\"didn't see anything out of\\n\\n11 the ordinary,\\\"\\n\\n12 Patrick [Greichen] began telling me how he believes Bozzuto[]\\n13 cuts the standard time on assignments on days when the volume\\n14 is high in order to get more cases out of people and to pay them\\n15 less, in the process making them miserable. Patrick then told me\\n16 that he tells anybody and everybody he can that he believes we are\\n17 purposely changing the standards on a daily basis in order to screw the\\n18 associates. I told Patrick that I didn't believe any of this to be true\\n19 and that these were very serious accusations he was making.\\n\\n20 (Memorandum of Jason Winans dated October 9, 2013, as to October 8, 2013\\n\\n\\n\\n 10\\n\\f 1 accusations by Patrick Greichen (\\\"Winans Memorandum of Greichen's October 8\\n\\n 2 statements\\\") at 1 (emphases added)). As indicated in that memorandum, Winans\\n\\n 3 viewed the situation as problematic, and he promptly reported Greichen's accusations\\n\\n 4 to Clark and Vaughan.\\n\\n 5 Clark and Winans arranged for a 4:00 meeting on October 8 at which\\n\\n 6 Bozzuto industrial engineers James Wright and David Heatley could explain to\\n\\n 7 Greichen how the standard times for various tasks were determined and functioned\\n\\n 8 so that Greichen could see that the targets were not subject to manipulation. Bozzuto\\n\\n 9 maintains that it hoped both to educate and reassure Greichen and to prevent him\\n\\n10 from spreading misinformation to other employees.\\n\\n11 Winans then, as instructed by Clark, told Greichen of the scheduling of\\n\\n12 the meeting and its purpose, and said Greichen's presence was required. Despite\\n\\n13 Winans's repeated urging, Greichen refused to attend. He said he felt he was being\\n\\n14 harassed. Vaughan then joined Winans in attempting to persuade Greichen to attend\\n\\n15 the meeting. Vaughan said Greichen would not face discrimination or harassment\\n\\n16 or \\\"anything negative\\\" if he attended the meeting; Winans emphasized that the\\n\\n17 meeting was mandatory and that if Greichen did not attend, he would be suspended\\n\\n18 pending termination for insubordination. Greichen confirmed that he understood.\\n\\n\\n 11\\n\\f 1 There is no dispute that he was also informed the meeting would be attended by\\n\\n 2 industrial engineers.\\n\\n 3 Greichen nonetheless refused to attend. Bozzuto discharged him,\\n\\n 4 effective that day, citing his insubordination.\\n\\n\\n\\n\\n 5 C. The 2014 Suspension and Termination of McCarty\\n\\n 6 Following the October 8, 2013 discharge of Greichen, McCarty remained\\n\\n 7 involved in supporting the union-organizing effort and was one of the few remaining\\n\\n 8 active union supporters. His involvement with the Union had been well known to\\n\\n 9 Bozzuto's management since the first week of the campaign.\\n\\n10 In early January 2014, McCarty became aware that his reported\\n\\n11 productivity numbers for the week ending January 4 appeared to be unduly low, and\\n\\n12 he deduced that Bozzuto's computerized reporting system, in tracking his efficiency\\n\\n13 as compared to the labor standard, had failed to take account of his \\\"down time,\\\" i.e.,\\n\\n14 time when he properly was not on-the-clock. Down time, such as a supervisor-\\n\\n15 approved break or time needed for equipment repairs, does not count toward the\\n\\n16 total time the employee has taken to complete a task. Thus, failure to account for an\\n\\n\\n\\n\\n 12\\n\\f 1 employee's down time would make his performance appear to be less productive\\n\\n 2 than it actually was.\\n\\n 3 To verify his suspicion that the reporting system was not taking proper\\n\\n 4 account of his down time, McCarty began to take screen shots each week of the raw\\n\\n 5 data shown for him in the computer, in order to prove inaccuracies in the final\\n\\n 6 productivity reports. He complained to Winans about the discrepancies he observed\\n\\n 7 due to his missing down time. According to McCarty, Winans essentially\\n\\n 8 disregarded his complaint, saying \\\"If you wanted down time put in, you should have\\n\\n 9 made sure it was put in. . . . It is what it is.\\\" (Tr. 515.)\\n\\n10 In mid-January, McCarty spoke with his supervisor William Englehart\\n\\n11 to pursue his complaint about improper treatment of his down time. According to\\n\\n12 McCarty, Englehart told him not to worry about it (see id. at 516); but Bozzuto\\n\\n13 proceeded to suspend McCarty for five days on account of his supposedly low\\n\\n14 productivity numbers. McCarty refused to sign the Bozzuto write-up documenting\\n\\n15 this five-day suspension, arguing that the productivity numbers shown were\\n\\n16 inaccurate.\\n\\n17 McCarty then was away for a few weeks, in part on vacation, and he had\\n\\n18 coworkers take screen shots of his data for the week ending January 18. Their\\n\\n\\n 13\\n\\f 1 photographs showed that McCarty's originally recorded down time was thereafter\\n\\n 2 deleted, thereby lowering McCarty's productivity score.\\n\\n 3 On February 18, the day that McCarty returned, he was summoned to\\n\\n 4 a meeting with members of Bozzuto's management. He was told that his\\n\\n 5 performance for the week of January 11 was at 94 percent of the labor standard, and\\n\\n 6 that, as a result, he was being discharged. McCarty objected on the ground that the\\n\\n 7 productivity numbers were skewed, and he refused to sign the write-up documenting\\n\\n 8 his termination.\\n\\n 9 Shortly after his suspension, McCarty had contacted the NLRB Regional\\n\\n10 Office and had begun submitting his photographic evidence of the alterations relating\\n\\n11 to his productivity. On April 9, 2014, that Office sent Bozzuto a letter stating that\\n\\n12 McCarty's productivity data had been altered, and attached, inter alia, photographs\\n\\n13 for each of the weeks ending January 11 and 18, 2014, showing the records for\\n\\n14 McCarty before and after the alterations took place.\\n\\n15 McCarty had not submitted his photographic evidence to Bozzuto. After\\n\\n16 receiving the April 9 communication from the NLRB, Bozzuto initiated an internal\\n\\n17 investigation, led by industrial engineer Wright. As a result of this investigation,\\n\\n18 Bozzuto concluded on April 14, 2014, that McCarty's data had in fact been changed--\\n\\n\\n 14\\n\\f 1 adversely to McCarty--with respect to the weeks ending January 11 and January 18.\\n\\n 2 On May 14, 2014, it unconditionally offered McCarty reinstatement, plus\\n\\n 3 compensation for losses in earnings and benefits. McCarty declined reinstatement.\\n\\n\\n\\n\\n 4 D. The Administrative Proceedings\\n\\n 5 In October 2014, the NLRB's General Counsel, through its Regional\\n\\n 6 Director (collectively the \\\"General Counsel\\\"), issued a complaint alleging that Bozzuto\\n\\n 7 had violated §§ 8(a)(1) and/or (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3), by--to the\\n\\n 8 extent pertinent to the present petitions--(1) interrogating McCarty on or about\\n\\n 9 September 27, 2013; (2) implementing a work rule that prohibited disciplined\\n\\n10 employees from discussing the terms of their employment, including disciplinary\\n\\n11 measures, with other employees; (3) raising wages on October 1 in an attempt to\\n\\n12 discourage employees from joining the Union; (4) warning Greichen on October 1\\n\\n13 against engaging in activity protected by the Act; (5) discharging Greichen on October\\n\\n14 8 in retaliation for his previous conduct that was protected by the Act; and (6)\\n\\n15 suspending and discharging McCarty because of the company's antiunion animus.\\n\\n16 The matter was tried before administrative law judge (\\\"ALJ\\\") Raymond\\n\\n17 P. Green, who found against Bozzuto on each of the above charges and principally\\n\\n\\n 15\\n\\f 1 recommended the issuance of cease-and-desist orders and affirmative relief for\\n\\n 2 Greichen and McCarty.\\n\\n\\n\\n\\n 3 1. The Rulings and Recommendations of the ALJ\\n\\n 4 First, the ALJ considered Bozzuto's October 1, 2013 announcement of\\n\\n 5 retroactive pay raises for most of its production workers. There was clear evidence\\n\\n 6 that management had become aware of the union-organizing activity several days\\n\\n 7 earlier. The ALJ also noted an absence of evidence that such increases were given on\\n\\n 8 a regular basis or that the decision to implement these increases had been made\\n\\n 9 before Bozzuto became aware of the union- organizing activity. On the same day that\\n\\n10 Bozzuto announced the pay raises, it announced that it \\\"was aware that the Union\\n\\n11 had obtained a list of the warehouse employees,\\\" and it \\\"encouraged employees to\\n\\n12 refrain from signing union authorization cards and stated that 'we do not need a\\n\\n13 union at Bozzuto[] . . . .'\\\" 365 N.L.R.B. No. 146, slip op. at 15. The ALJ found that\\n\\n14 \\\"[t]he notices posted simultaneously on October 1, 2013, leave no doubt that the pay\\n\\n15 increases were motivated by the fact that the Company became aware that the Union\\n\\n16 was engaged in organizing activity,\\\" and that the announcement of the raises violated\\n\\n17 § 8(a)(1) of the Act. Id. at 16 (emphasis added).\\n\\n\\n 16\\n\\f 1 As to Bozzuto's treatment of Greichen on October 1, the ALJ found that\\n\\n 2 summoning him to a meeting and criticizing him because of employee reports that\\n\\n 3 he was complaining to other workers about how the production standards were\\n\\n 4 resulting in long hours and affecting, inter alia, their rights to receive premium pay,\\n\\n 5 interfered with Greichen's protected right to engage in concerted activity within the\\n\\n 6 meaning of § 7 of the Act. See id. at 16-17; see also id. at 17 (finding that the warning\\n\\n 7 of Greichen \\\"at virtually the same time that the Company notified employees that\\n\\n 8 they should avoid union activity\\\" suggests that \\\"management more than likely\\n\\n 9 believed that he was among the employees who most likely would support a union\\\").\\n\\n10 The ALJ also found that Bozzuto's general policy of conditioning continued\\n\\n11 employment for suspended employees on their agreement not to discuss terms of\\n\\n12 employment, including discipline, with their coworkers (Bozzuto's \\\"restrictive speech\\n\\n13 policy\\\") violated § 8(a)(1) of the Act.\\n\\n14 As to Clark's asking McCarty \\\"what's going on with this union stuff,\\\" the\\n\\n15 ALJ found as follows:\\n\\n16 While this single act of interrogation might be viewed as an\\n17 offhand and somewhat innocuous comment, the fact is that this\\n18 event occurred at or near the same time of the unlawfully motivated\\n19 pay increase and the unlawful discrimination against Greichen. I\\n\\n\\n 17\\n\\f 1 therefore shall conclude that this interrogation, in the\\n 2 circumstances, violated Section 8(a)(1) of the Act.\\n\\n 3 365 N.L.R.B. No. 146, slip op. at 18 (emphases added).\\n\\n 4 The ALJ also found that the discharge of Greichen on October 8 violated\\n\\n 5 the Act, rejecting Bozzuto's contention that he had been discharged solely for\\n\\n 6 insubordination:\\n\\n 7 Even taking [Bozzuto's] premise that Greichen's refusal to attend\\n 8 a meeting constituted insubordination, . . . . Greichen was told to\\n 9 go to a meeting to discuss his complaints about productivity\\n10 standards because [Bozzuto] was concerned that he was talking\\n11 about them and misinforming his fellow employees. Thus, the\\n12 demand that he attend this meeting was inexplicably [sic] bound up to\\n13 the Company's earlier unlawful warning on October 1, which was issued\\n14 because of Greichen's protected concerted activity. One follows from\\n15 the other and the October 8 meeting would not have taken place but for\\n16 the earlier interference with Greichen's right to talk to his coworkers\\n17 about their collective terms and conditions of employment.\\n\\n18 Id. at 17 (emphases added).\\n\\n19 Finally, the ALJ found that Bozzuto's suspension and discharge of\\n\\n20 McCarty in 2014 were motivated by antiunion animus, noting \\\"that McCarty was the\\n\\n21 leading union activist among the employees after October 8,\\\" that Bozzuto \\\"was fully\\n\\n22 aware of his union activity,\\\" and that \\\"the ostensible reason for his suspension and\\n\\n23 discharge was manifestly false.\\\" Id. at 18; see also id. (noting that Bozzuto \\\"ha[d] failed\\n\\n\\n\\n 18\\n\\f 1 to show that it would have taken these actions apart from McCarty's union activity\\\").\\n\\n 2 The ALJ concluded that the General Counsel had established by a preponderance of\\n\\n 3 the evidence that Bozzuto's suspension and discharge of McCarty violated §§ 8(a)(1)\\n\\n 4 and (3) of the Act.\\n\\n 5 In light of his findings as to these violations, the ALJ recommended that\\n\\n 6 Bozzuto be ordered to cease and desist from such conduct, that it offer reinstatement\\n\\n 7 to Greichen and take affirmative steps to make Greichen and McCarty whole for any\\n\\n 8 losses resulting from Bozzuto's violations of their rights, and that it post notice of the\\n\\n 9 Board's findings and remedial order.\\n\\n10 However, the ALJ rejected the General Counsel's request for a\\n\\n11 recommendation that Bozzuto be ordered to read such an order aloud to its\\n\\n12 assembled employees. The ALJ recognized that such a public reading is an\\n\\n13 \\\"'extraordinary remed[y],'\\\" 365 N.L.R.B. No. 146, slip op. at 19 (quoting Federated\\n\\n14 Logistics & Operations, 340 N.L.R.B. 255, 256-57 (2003)). And while noting that\\n\\n15 Bozzuto's violations were not trivial, the ALJ concluded that they were \\\"not . . .\\n\\n16 numerous, pervasive or outrageous,\\\" and there had been no showing that Bozzuto\\n\\n17 had violated the Act in the past or that it was likely to do so again in the future. 365\\n\\n18 N.L.R.B. No. 146, slip op. at 19.\\n\\n\\n 19\\n\\f 1 2. The Decision of the Board\\n\\n 2 A three-member panel of the Board unanimously adopted the ALJ's\\n\\n 3 findings that Bozzuto engaged in unfair labor practices on October 1, 2013, in its\\n\\n 4 announcement of wage increases and its restrictive speech policy--findings to which\\n\\n 5 Bozzuto had not objected--and in 2014 by suspending and discharging McCarty. As\\n\\n 6 discussed below, the ALJ's other findings were adopted by a 2-1 vote of the Board,\\n\\n 7 with the Chairman dissenting principally from the findings that Bozzuto violated the\\n\\n 8 Act in questioning McCarty (see Part II.B.1. below) and in discharging Greichen (see\\n\\n 9 Part II.C. below). The Board also, by a 2-1 vote with the Chairman dissenting,\\n\\n10 modified the ALJ's recommended remedy by requiring that the Board's remedial\\n\\n11 notice be read aloud at a meeting of employees by Clark or by a Board member in\\n\\n12 Clark's presence (see Part II.D. below).\\n\\n\\n\\n\\n13 II. DISCUSSION\\n\\n\\n\\n\\n14 Bozzuto in its petition for review contends principally (A) that\\n\\n15 substantial evidence does not support the Board's findings that Clark's single\\n\\n16 question to McCarty constituted an unlawful interrogation or that Bozzuto's\\n\\n\\n 20\\n\\f 1 discharges of Greichen and McCarty were either punishment for statutorily protected\\n\\n 2 activity or motivated by antiunion animus; and (B) that neither Bozzuto's conduct nor\\n\\n 3 its history warrants the extraordinary remedy of ordering that the Board's remedial\\n\\n 4 notice be read aloud to Bozzuto's employees.\\n\\n 5 The Board petitions for enforcement of its findings in full, either for lack\\n\\n 6 of timely objection by Bozzuto, or on the merits, i.e., contending\\n\\n 7 # that its decision upholding two findings and recommendations\\n 8 of the ALJ--that Bozzuto violated § 8(a)(1) of the Act (a) by announcing\\n 9 and implementing wage increases in response to the union-organizing\\n10 activity, and (b) by its restrictive speech policy conditioning continued\\n11 employment for disciplined employees on their refraining from\\n12 discussing their discipline, etc., with coworkers--should be summarily\\n13 enforced because Bozzuto did not object to those ALJ findings before the\\n14 Board, see 29 U.S.C. § 160(e) (absent extraordinary circumstances, \\\"[n]o\\n15 objection that has not been urged before the Board . . . shall be\\n16 considered by the court\\\");\\n\\n17 # that two other Board findings--that Bozzuto violated § 8(a)(1) of\\n18 the Act by warning Greichen not to discuss the terms of his employment\\n19 with other Bozzuto employees (a finding that Bozzuto no longer\\n20 challenges (see Bozzuto reply brief in support of petition for review\\n21 at 7-8)), and violated §§ 8(a)(1) and (3) by suspending McCarty--should\\n22 be summarily enforced because Bozzuto's opening brief contains no\\n23 challenges to those findings or the related orders, see, e.g., Fed. R. App.\\n24 P. 28(a)(8)(A) (\\\"appellant's brief must contain . . . appellant's contentions\\n25 and the reasons for them, with citations to the authorities and parts of\\n26 the record on which the appellant relies\\\"); and\\n\\n\\n\\n\\n 21\\n\\f 1 # that the Board's findings that Bozzuto violated § 8(a)(1) by\\n 2 interrogating McCarty and discharging Greichen, and violated §§ 8(a)(1)\\n 3 and (3) by discharging McCarty, are supported by substantial evidence.\\n\\n 4 The Board seeks enforcement of its entire remedial order, including the requirement\\n\\n 5 of a public reading of the findings and the order to Bozzuto's employees, as within\\n\\n 6 its broad discretion.\\n\\n 7 In light of 29 U.S.C. § 160(e) and Fed. R. App. P. 28(a)(8)(A), the findings\\n\\n 8 and orders that Bozzuto did not timely challenge will be summarily enforced.\\n\\n 9 For the reasons that follow, we grant Bozzuto's petition with respect to\\n\\n10 the questioning of McCarty and the discharge of Greichen, and the remedial orders\\n\\n11 associated with those rulings, and with respect to the order that the Board's remedial\\n\\n12 notice be read aloud to Bozzuto employees. In all other respects, we grant the Board's\\n\\n13 petition for enforcement.\\n\\n\\n\\n\\n14 A. The National Labor Relations Act\\n\\n15 Section 7 of the Act provides, as a fundamental matter, that employees\\n\\n16 of an employer covered by the Act\\n\\n17 shall have the right to self-organization, to form, join, or assist\\n18 labor organizations, to bargain collectively through\\n19 representatives of their own choosing, and to engage in other\\n\\n\\n 22\\n\\f 1 concerted activities for the purpose of collective bargaining or\\n 2 other mutual aid or protection.\\n\\n 3 29 U.S.C. § 157. Section 8(a) of the Act provides, in pertinent part, that \\\"[i]t shall be\\n\\n 4 an unfair labor practice for an employer--\\n\\n 5 (1) to interfere with, restrain, or coerce employees in the\\n 6 exercise of the rights guaranteed in section 157 of [Title 29 U.S.C.],\\n\\n 7 29 U.S.C. § 158(a)(1) (emphases added), or\\n\\n 8 (3) by discrimination in regard to hire or tenure of\\n 9 employment or any term or condition of employment to encourage\\n10 or discourage membership in any labor organization,\\n\\n11 29 U.S.C. § 158(a)(3) (emphases added).\\n\\n\\n\\n\\n12 1. Discipline and Discharge\\n\\n13 An employer violates §§ 8(a)(1) and (3) of the Act by disciplining or\\n\\n14 discharging an employee for engaging in union activity or other section 7 conduct.\\n\\n15 See, e.g., NLRB v. Transportation Management Corp., 462 U.S. 393, 397-98 (1983)\\n\\n16 (\\\"Transportation Management\\\"), abrogated on other grounds by Director, Office of Workers'\\n\\n17 Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994). \\\"Under\\n\\n18 these provisions it is undisputed that if the employer fires an employee for having\\n\\n19 engaged in union activities and has no other basis for the discharge, or if the reasons\\n\\n\\n 23\\n\\f 1 that he proffers are pretextual, the employer commits an unfair labor practice.\\\"\\n\\n 2 Transportation Management, 462 U.S. at 398 (emphasis added).\\n\\n 3 However, while the Act \\\"makes unlawful the discharge of a worker\\n\\n 4 because of union activity, . . . employers retain the right to discharge workers for any\\n\\n 5 number of other reasons unrelated to the employee's union activities.\\\" Id. at 394. An\\n\\n 6 employer \\\"does not violate the NLRA . . . if any anti-union animus that he might have\\n\\n 7 entertained did not contribute at all to an otherwise lawful discharge for good cause.\\\"\\n\\n 8 Id. at 398. For example, \\\"insubordination, disobedience or disloyalty is adequate\\n\\n 9 cause for discharge . . . .\\\" NLRB v. Local Union No. 1229, International Brotherhood of\\n\\n10 Electrical Workers, 346 U.S. 464, 475 (1953). And the Act expressly provides that\\n\\n11 [n]o order of the Board shall require the reinstatement of any\\n12 individual as an employee who has been suspended or\\n13 discharged, or the payment to him of any back pay, if such\\n14 individual was suspended or discharged for cause.\\n\\n15 29 U.S.C. § 160(c).\\n\\n16 When the General Counsel files a complaint alleging that an employee\\n\\n17 was discharged because of his union activities and the employer counters that it had\\n\\n18 an unrelated, legitimate motive for its decision, \\\"Wright Line analysis\\\" is applied, see\\n\\n19 Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied\\n\\n\\n\\n 24\\n\\f 1 455 U.S. 989 (1982); Transportation Management, 462 U.S. at 404. Under Wright Line\\n\\n 2 analysis, the initial question is whether the General Counsel has carried his \\\"burden\\n\\n 3 of persuading the Board that an anti-union animus contributed to the employer's\\n\\n 4 decision to discharge [the] employee, a burden that does not shift\\\"; but if that burden\\n\\n 5 has been carried, \\\"the employer, even if it failed to meet or neutralize the General\\n\\n 6 Counsel's showing, c[an] avoid the finding that it violated the statute by\\n\\n 7 demonstrating by a preponderance of the evidence that the worker would have been\\n\\n 8 fired even if he had not been involved with the Union.\\\" Id. at 395; see id. at 401-02\\n\\n 9 (deferring to the Board's interpretation of the Act as designating the employer's\\n\\n10 assertion of a purely union-unrelated motive \\\"as an affirmative defense that the\\n\\n11 employer has the burden of sustaining\\\"). In effect, under this sequence, \\\"'[i]nitially,\\n\\n12 the General Counsel must establish a prima facie case that protected conduct was a\\n\\n13 motivating factor in the employer's decision to fire. The burden then shifts to the\\n\\n14 employer to show, as an affirmative defense, that the discharge would have occurred\\n\\n15 in any event and for valid reasons.'\\\" NLRB v. Starbucks Corp., 679 F.3d 70, 80 (2d Cir.\\n\\n16 2012) (quoting NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 957 (2d Cir. 1988) (\\\"S.E.\\n\\n17 Nichols\\\") (other internal quotation marks omitted), cert. denied, 490 U.S. 1108 (1989)).\\n\\n18\\n\\n\\n 25\\n\\f 1 \\\"[T]he Board may infer [an employer's] discriminatory motive from\\n\\n 2 circumstantial evidence,\\\" Abbey's Transportation Services, Inc. v. NLRB, 837 F.2d 575,\\n\\n 3 579 (2d Cir. 1988); see also NLRB v. Windsor Industries, Inc., 730 F.2d 860, 863 (2d Cir.\\n\\n 4 1984), which may include the employer's \\\"knowledge of the employees' union\\n\\n 5 activities,\\\" the timing of the discharge, or other antiunion activity by the employer,\\n\\n 6 S.E. Nichols, 862 F.2d at 957.\\n\\n\\n\\n\\n 7 2. Interrogation\\n\\n 8 While § 8(a)(1) of the Act prohibits interference with, inter alia, an\\n\\n 9 employee's interest in joining a union, employers nonetheless have a First\\n\\n10 Amendment right to engage in communications with employees about union activity,\\n\\n11 see, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969); such communications do\\n\\n12 not constitute unfair labor practices so long as they \\\"contain[] no threat of reprisal or\\n\\n13 force or promise of benefit,\\\" 29 U.S.C. § 158(c); see, e.g., NLRB v. Montgomery Ward &\\n\\n14 Co., 192 F.2d 160, 163 (2d Cir. 1951) (\\\"inquiries made by [a] manager concerning what\\n\\n15 was being done in behalf of the union\\\"-- even in conjunction with \\\"statements as to\\n\\n16 his not liking the union\\\"--were not unlawful \\\"to the extent that they constituted no\\n\\n\\n\\n 26\\n\\f 1 threat or intimidation, or promise of favor or benefit in return for resistance to the\\n\\n 2 union\\\").\\n\\n 3 An employer's questioning of an employee will, however, amount to a\\n\\n 4 violation of § 8(a)(1) if \\\"either the words themselves or the context in which they are\\n\\n 5 used . . . suggest an element of coercion or interference.\\\" Rossmore House, 269 N.L.R.B.\\n\\n 6 1176, 1177 (1984) (internal quotation marks omitted), enforced sub nom. Hotel Employees\\n\\n 7 Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). But \\\"'the realities of the workplace'\\\"\\n\\n 8 require recognition that\\n\\n 9 \\\"[b]ecause production supervisors and employees often work\\n10 closely together, one can expect that during the course of the\\n11 workday they will discuss a range of subjects of mutual interest,\\n12 including ongoing unionization efforts.\\\"\\n\\n13 Rossmore House, 269 N.L.R.B. at 1177 (quoting Graham Architectural Products v. NLRB,\\n\\n14 697 F.2d 534, 541 (3d Cir. 1983) (\\\"Graham\\\")). \\\"'To hold that any'\\\" and every \\\"'instance\\n\\n15 of casual questioning concerning union sympathies violates the Act'\\\" would thus\\n\\n16 \\\"'ignore[] the realities.'\\\" Rossmore House, 269 N.L.R.B. at 1177 (quoting Graham).\\n\\n17 Accordingly, an interrogation that is \\\"not itself threatening[] is not held\\n\\n18 to be an unfair labor practice unless it meets certain fairly severe standards,\\\" Bourne\\n\\n19 v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) (\\\"Bourne\\\"). The factors to be considered in\\n\\n\\n\\n 27\\n\\f 1 determining whether questioning is threatening or coercive include\\n\\n 2 (1) The background, i.e., is there a history of employer\\n 3 hostility and discrimination?\\n\\n 4 (2) The nature of the information sought, e.g., did the\\n 5 interrogator appear to be seeking information on which to base\\n 6 taking action against individual employees?\\n\\n 7 (3) The identity of the questioner, i.e., how high was he in\\n 8 the company hierarchy?\\n\\n 9 (4) Place and method of interrogation, e.g., was employee\\n10 called from work to the boss's office? Was there an atmosphere of\\n11 'unnatural formality'?\\n\\n12 (5) Truthfulness of the reply.\\n\\n13 Id.; see, e.g., Rossmore House, 269 N.L.R.B. at 1178 n.20 (considering the above Bourne\\n\\n14 factors); Regal Recycling, Inc., 329 N.L.R.B. 355, 365 (1999) (deeming employer's\\n\\n15 inquiries coercive in part because employees gave false answers or failed to respond);\\n\\n16 Town & Country Supermarkets, 340 N.L.R.B. 1410, 1423-24 (2004) (deeming employer's\\n\\n17 inquiries coercive in part because employee gave responses that were evasive); see also\\n\\n18 Vista Del Sol Health Services, Inc., 363 N.L.R.B. No. 135, slip op. at 17 (2016)\\n\\n19 (considering also \\\"the timing of the interrogation and whether the interrogated\\n\\n20 employees are open and active union supporters\\\"); Gardner Engineering, Inc., 313\\n\\n21 N.L.R.B. 755, 755 (1994) (deeming employer questions coercive in part because the\\n\\n\\n 28\\n\\f 1 employee was not \\\"an open and active union supporter at the time of the\\n\\n 2 interrogation\\\"), enforced as modified on other grounds, 115 F.3d 636 (9th Cir. 1997).\\n\\n 3 In sum, the Bourne factors \\\"are not to be mechanically applied,\\\" Rossmore\\n\\n 4 House, 269 N.L.R.B. at 1178 n.20; and in order to determine whether questioning\\n\\n 5 constituted an unfair labor practice, the Board assesses the \\\"totality of the\\n\\n 6 circumstances,\\\" i.e., it considers \\\"whether under all the circumstances the\\n\\n 7 interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed\\n\\n 8 by the Act,\\\" id. at 1178 & n.20.\\n\\n\\n\\n\\n 9 3. Standards of Decision\\n\\n10 Section 10(c) of the Act requires that the Board hear evidence on claims\\n\\n11 of unfair labor practices and grant relief if it finds such claims established by a\\n\\n12 \\\"preponderance\\\" of the evidence. 29 U.S.C. § 160(c). Sections 10(e) and 10(f) of the\\n\\n13 Act, 29 U.S.C. §§ 160(e) and (f), allow petitions to the relevant court of appeals by,\\n\\n14 respectively, the Board for enforcement of its order and the respondent in opposition.\\n\\n15 Each of those sections provides that on such review, the \\\"findings of the Board with\\n\\n16 respect to questions of fact if supported by substantial evidence on the record\\n\\n17 considered as a whole shall\\\" \\\"be conclusive,\\\" 29 U.S.C. §§ 160(e) and (f). In this\\n\\n\\n 29\\n\\f 1 respect,\\n\\n 2 [s]ubstantial evidence is more than a mere scintilla. It means such\\n 3 relevant evidence as a reasonable mind might accept as adequate\\n 4 to support a conclusion. . . . Accordingly, it must do more than\\n 5 create a suspicion of the existence of the fact to be established.\\n\\n 6 Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (internal quotation marks\\n\\n 7 omitted).\\n\\n 8 Further, proper assessment of \\\"[t]he substantiality of evidence must take\\n\\n 9 into account whatever in the record fairly detracts from its weight.\\\" Id. at 488 (emphasis\\n\\n10 added). However, when choosing between \\\"two fairly conflicting views,\\\" we will not\\n\\n11 overturn the Board's fact finding, even if we would have come to \\\"a different choice\\n\\n12 had the matter been before [us] de novo.\\\" NLRB v. G & T Terminal Packaging Co., 246\\n\\n13 F.3d 103, 114 (2d Cir. 2001) (internal quotation marks omitted). \\\"[R]eversal based\\n\\n14 upon a factual question will only be warranted if, after looking at the record as a\\n\\n15 whole, we are left with the impression that no rational trier of fact could reach the\\n\\n16 conclusion drawn by the Board.\\\" NLRB v. Katz's Delicatessen of Houston Street, Inc., 80\\n\\n17 F.3d 755, 763 (2d Cir. 1996) (internal quotation marks omitted).\\n\\n18 We review the Board's conclusions of law \\\"to ensure that they have a\\n\\n19 reasonable basis,\\\" and in so doing, we \\\"afford the Board a degree of legal leeway.\\\"\\n\\n\\n\\n 30\\n\\f 1 NLRB v. Caval Tool Division, 262 F.3d 184, 188 (2d Cir. 2001) (internal quotation marks\\n\\n 2 omitted). We \\\"will uphold the Board's legal determinations 'if not arbitrary and\\n\\n 3 capricious.'\\\" NLRB v. Consolidated Bus Transit, Inc., 577 F.3d 467, 474 (2d Cir. 2009)\\n\\n 4 (\\\"Consolidated Bus\\\") (quoting Cibao Meat Products, Inc. v. NLRB, 547 F.3d 336, 339 (2d\\n\\n 5 Cir. 2008)).\\n\\n\\n\\n\\n 6 B. McCarty\\n\\n 7 Bozzuto challenges the Board's rulings that (1) Clark's single question to\\n\\n 8 McCarty, and (2) the 2014 discharge of McCarty, violated the Act. We find merit in\\n\\n 9 the first challenge, but not the second.\\n\\n\\n\\n\\n10 1. Interrogation\\n\\n11 The ALJ noted that Clark's \\\"what's going on with this union stuff\\\"\\n\\n12 question to McCarty, was a \\\"single act of interrogation [that] might be viewed as an\\n\\n13 offhand and somewhat innocuous comment\\\"; but he found that it violated § 8(a)(1)\\n\\n14 simply because it \\\"occurred at or near the same time of the unlawfully motivated pay\\n\\n15 increase and the unlawful discrimination against Greichen.\\\" 365 N.L.R.B. No. 146,\\n\\n16 slip op. at 18. The Board majority, after considering, inter alia, Rossmore House and the\\n\\n\\n 31\\n\\f 1 Bourne factors and the totality of the circumstances, see id. at 2-3, agreed with the ALJ.\\n\\n 2 It stated as follows:\\n\\n 3 Clark was a high-ranking official; he initiated a conversation in\\n 4 which he questioned an active, but not yet open, union supporter;\\n 5 McCarty . . . did not answer Clark's question; and the inquiry\\n 6 occurred at or near the same time as [Bozzuto's] unlawful\\n 7 discrimination against union supporter Patrick Greichen,\\n 8 including his disciplinary warning and discharge, and its\\n 9 unlawfully motivated pay increase to employees.\\n\\n10 Id. at 2 (footnotes omitted). The majority also found that \\\"despite McCarty's 'good\\n\\n11 relationship' with Clark, it is telling that McCarty did not feel comfortable telling\\n\\n12 Clark 'what was going on' with the organizing campaign.\\\" Id. at 2 n.6.\\n\\n13 The Board Chairman, dissenting--also considering Rossmore House and\\n\\n14 the Bourne factors and the totality of the circumstances, see id. at 7-9--disagreed,\\n\\n15 concluding that only one Bourne factor, the fact that Clark was an officer, was any\\n\\n16 indicator of coercion, see id. at 8. The dissent noted, inter alia, that McCarty was\\n\\n17 known to Bozzuto management to be a union supporter, and that \\\"Clark's question\\n\\n18 was no more objectionable than the manager's question found lawful in Rossmore\\n\\n19 House itself ('What is this about a union?'), and it was clearly less intrusive than the\\n\\n20 owner's inquiry also found lawful in Rossmore House, where the owner asked an\\n\\n\\n\\n 32\\n\\f 1 employee why he was 'trying to get a union in here.'\\\" Id. at 8 n.7 (quoting Rossmore\\n\\n 2 House, 269 N.L.R.B. at 1178) (emphases in dissent)).\\n\\n 3 Our review of the record persuades us that some of the majority's\\n\\n 4 findings with regard to the Clark question are not supported by the record as a\\n\\n 5 whole. First, neither the record nor certain other findings made by the majority\\n\\n 6 support its view that Clark's question was coercive in part because it was asked when\\n\\n 7 McCarty was \\\"not yet [an] open[] union supporter.\\\" 365 N.L.R.B. No. 146, slip op.\\n\\n 8 at 2. While the General Counsel's complaint had alleged that Clark's question to\\n\\n 9 McCarty occurred on September 27, the Board majority refused to accept that date,\\n\\n10 stating that \\\"the record and the judge's decision as a whole indicate that it occurred\\n\\n11 about October 1.\\\" Id. at 1 n.5. Yet the majority found that \\\"the campaign began on\\n\\n12 Monday, September 23,\\\" id. at 2 n.5; that Bozzuto's \\\"management became aware of\\n\\n13 McCarty's involvement from another employee early in the organizing campaign,\\\"\\n\\n14 id. at 2 n.10; see, e.g., id. at 1 n.4 (\\\"[t]he record shows that sometime before October 1,\\n\\n15 an employee told . . . Clark[] of McCarty's involvement in the organization efforts\\\");\\n\\n16 and that McCarty himself testified that \\\"' within that first week I was not secret about [the\\n\\n17 union campaign] at all,'\\\" id. at 2 n.10 (quoting Tr. 693 (emphasis ours)). The majority's\\n\\n18 view that \\\"this testimony\\\"--by McCarty himself--\\\"does not establish that McCarty was\\n\\n 33\\n\\f 1 open at the time of the interrogation,\\\" 365 N.L.R.B. No. 146, slip op. at 2 n.10 (emphasis\\n\\n 2 added), is at odds with the fact that the Union campaign began on September 23 and\\n\\n 3 the majority's own insistence that the interrogation occurred on October 1, which was\\n\\n 4 the ninth day of the campaign. And while the majority was entitled to its view that\\n\\n 5 management's \\\"aware[ness] of McCarty's involvement from another employee early\\n\\n 6 in the organizing campaign\\\" did not necessarily \\\"equate[] to openness on McCarty's\\n\\n 7 part,\\\" id., the majority's refusal to accept as true McCarty's own statement that he\\n\\n 8 became open--\\\"'not secret . . . at all'\\\"--\\\"'within that first week,'\\\" id. (quoting Tr. 693),\\n\\n 9 strikes us as arbitrary and capricious. The majority's view that \\\"the record does not\\n\\n10 support the conclusion that McCarty was an open union supporter at the time of the\\n\\n11 interrogation,\\\" 365 N.L.R.B. No. 146, slip op. at 2 (emphasis in original), is itself\\n\\n12 contradicted by the record.\\n\\n13 Second, the generality of Clark's question did not suggest that\\n\\n14 management sought to identify or discipline employees because they were union\\n\\n15 sympathizers; it was no more intrusive than the question asked by the manager in\\n\\n16 Rossmore House, \\\"What is this about a union,\\\" which was found not to violate the Act.\\n\\n17 The majority, without attempting any explanation as to why the language of Clark's\\n\\n18 question, \\\"what's going on with this union stuff,\\\" was in any way significantly\\n\\n\\n 34\\n\\f 1 different, cited the fact that the employer in Rossmore House \\\"had not\\\" committed any\\n\\n 2 unfair labor practices before the questioning occurred. See 365 N.L.R.B. No. 146, slip\\n\\n 3 op. at 3 n.11. But it is hardly clear that this was not also true of the present case. The\\n\\n 4 only unfair labor practices by Bozzuto in the fall of 2013 that are sustained here\\n\\n 5 occurred on October 1: the pay raise, the restrictive speech policy of continuing to\\n\\n 6 employ suspended employees only if they would agree not to discuss their discipline,\\n\\n 7 etc., with coworkers, and the warning to Greichen to stop talking to his coworkers\\n\\n 8 about conditions of employment. If the majority was correct in its finding that\\n\\n 9 McCarty was not an open union supporter at the time of Clark's question, that\\n\\n10 question would had to have been asked prior to September 30; and at that time\\n\\n11 Bozzuto--indistinguishably from employer in Rossmore House--would not have\\n\\n12 committed any prior unfair labor practice.\\n\\n13 We also note that McCarty testified that the Clark question occurred in\\n\\n14 the second week of the Union campaign (see Tr. 485). The campaign had begun on\\n\\n15 Monday September 23. While the majority stated that \\\"[i]t goes without saying that\\n\\n16 the week after the September 23 start date of the campaign was the week of October 1,\\\"\\n\\n17 365 N.L.R.B. No. 146, slip op. at 2 n.5 (emphasis added)--a convenient date because\\n\\n18 that was the date on which there were confirmable unfair labor practices--in fact that\\n\\n\\n 35\\n\\f 1 second week began on Monday September 30, a date that itself may, consistent with\\n\\n 2 McCarty's testimony, have been the day of Clark's question. September 30, however,\\n\\n 3 was prior to Bozzuto's commission of any unfair labor practice.\\n\\n 4 Further, we do not find that the record supports the majority's view that\\n\\n 5 McCarty's response to Clark's question indicates that the question was coercive on the\\n\\n 6 basis that \\\"McCarty did not feel comfortable telling Clark 'what was going on' with\\n\\n 7 the organizing campaign,\\\" id. at 2 n.6. As the Board has noted in the past, \\\"[i]t is\\n\\n 8 actually none of [management's] lawful business as to [an employee's] evaluation of\\n\\n 9 union activities,\\\" Medical Center of Ocean County, 315 N.L.R.B. 1150, 1154 (1994)\\n\\n10 (\\\"Medical Center\\\"), and McCarty's response apparently so recognized. While the\\n\\n11 majority again saw this case as different from Rossmore House, stating that the\\n\\n12 employee there \\\"responded to the inquiry ['What is this about a union,'] candidly and\\n\\n13 without hesitation,\\\" 365 N.L.R.B. No. 146, slip op. at 3 n.11, the record here contains\\n\\n14 no indication that McCarty had any hesitance whatever in saying \\\"I'm not going to\\n\\n15 talk about it with you, Mr. Clark\\\" (Tr. 485). That answer provided no information\\n\\n16 that was responsive to the question, but it also evinced no discomfort in telling Clark,\\n\\n17 in a most civil way, that the union activity was none of Clark's lawful business.\\n\\n18 McCarty's response cannot be viewed as an indicium of coercion.\\n\\n\\n 36\\n\\f 1 We conclude, as did the dissent, that the record supports the conclusion\\n\\n 2 that all of the Bourne factors, except Clark's position as a company officer, point\\n\\n 3 toward a finding that Clark's question was not coercive and did not violate the Act.\\n\\n 4 There is no evidence in the record as to any history whatever prior to this union-\\n\\n 5 organizing effort of any animosity of Bozzuto toward unions. Indeed, the ALJ\\n\\n 6 expressly found that Bozzuto had not violated the Act in the past (and he saw no\\n\\n 7 indication that it was likely to do so in the future). See 365 N.L.R.B. No. 146, slip op.\\n\\n 8 at 19. The question was asked by Clark during a chance encounter as McCarty was\\n\\n 9 leaving a restroom. It was asked of an employee who was, by then, an open\\n\\n10 supporter of the union. The question was entirely general, the sort of question that\\n\\n11 might pass between any two employees, regardless of rank; it did not ask about\\n\\n12 individuals, and it carried no portent of discipline. It produced McCarty's direct\\n\\n13 response that he would not discuss the matter with Clark. And no further questions\\n\\n14 were asked.\\n\\n15 The Board majority in finding Clark's question coercive cited nearly two\\n\\n16 dozen cases. All of the cases in which a question was found to be coercive involved\\n\\n17 either supervisors calling employees into their offices for closed-door exploration of\\n\\n18 the identities of union supporters, or repeated or insistent questioning, or threats of\\n\\n\\n 37\\n\\f 1 discipline, or imposition of more severe working conditions, or threats to close or\\n\\n 2 move the company, or a backdrop of numerous unfair labor practices. See, e.g., Seton\\n\\n 3 Co., 332 N.L.R.B. 979, 981-82 (2000) (in questioning that took place \\\"against a\\n\\n 4 background of numerous other unfair labor practices including threats of plant\\n\\n 5 closure . . . and more onerous working conditions,\\\" supervisor interrogated employee\\n\\n 6 as to whether he had been \\\"talking about the Union\\\" and threatened the employee\\n\\n 7 that \\\"if he was caught talking about the Union he could be fired\\\"); Acme Bus Corp., 320\\n\\n 8 N.L.R.B. 458, 461, 478 (1995) (for several months, supervisor \\\"spent about 45 minutes\\n\\n 9 of every 2 hours . . . speaking to employees regarding the Union,\\\" asking, inter alia,\\n\\n10 as directed by upper management, \\\"whether the[ employees] supported the Union,\\\"\\n\\n11 and \\\"where union meetings would be held,\\\" and reported back to management on his\\n\\n12 findings); Management Consulting, Inc., 349 N.L.R.B. 249, 258 (2007) (manager called\\n\\n13 an employee into his office and asked the employee a series of questions as to his\\n\\n14 union activity and that of his fellow employees); Medical Center, 315 N.L.R.B. at 1154\\n\\n15 (supervisor called employee, who was not an open union supporter, \\\"into his office\\n\\n16 and closed the door\\\" and asked employee about union activity; employee had worked\\n\\n17 at this company for 10 years and had \\\"never worked with [that supervisor] . . . and\\n\\n18 had never been called into an office for a conversation with his supervisor where the\\n\\n\\n 38\\n\\f 1 door was closed\\\"). Not one of the cases relied on by the majority found the Act\\n\\n 2 violated in circumstances paralleling those here: a single very general question, asked\\n\\n 3 in a chance encounter, by a supervisor whose company had no history of union\\n\\n 4 animosity, where the question was met with a simple and forthright refusal to\\n\\n 5 discuss, was not followed by any questions to McCarty or any other employee, and\\n\\n 6 was not accompanied by pervasive unlawful conduct as occurred in the cases cited\\n\\n 7 by the Board majority.\\n\\n 8 In these circumstances, which fall far short of meeting the \\\"fairly severe\\n\\n 9 standards\\\" needed to constitute an unfair labor practice, Bourne, 332 F.2d at 48, the\\n\\n10 Board's finding instead comes close to creating a per se rule that no manager can,\\n\\n11 without committing an unfair labor practice, ask an employee any question about\\n\\n12 ongoing union activity. We conclude that the Board's finding that Bozzuto\\n\\n13 unlawfully interrogated McCarty is not supported by the record as a whole.\\n\\n\\n\\n\\n14 2. McCarty's Discharge\\n\\n15 In contrast, we reject, without a need for extended discussion, Bozzuto's\\n\\n16 challenge to the finding that it violated the Act by terminating McCarty's employment\\n\\n17 in February 2014. The record is clear that Bozzuto told McCarty he was being\\n\\n\\n 39\\n\\f 1 discharged because of low productivity, and that the basis for that assessment was\\n\\n 2 data that, although originally entered correctly in the company's computer system,\\n\\n 3 had thereafter been altered to decrease McCarty's perceived level of productivity.\\n\\n 4 Bozzuto's own eventual internal investigation in April 2014 confirmed that McCarty's\\n\\n 5 data had been so altered.\\n\\n 6 Bozzuto's contention that, despite the fact that the alterations had been\\n\\n 7 made using a supervisor's access code, its internal investigation was unable, because\\n\\n 8 of the company's lax security, to establish \\\"conclusively\\\" who made those alterations\\n\\n 9 (Bozzuto reply brief in support of petition for review at 26), and hence that the\\n\\n10 alterations themselves should not be attributed to management--even if it were\\n\\n11 sustainable--is of no moment. The fact remains that Bozzuto discharged McCarty on\\n\\n12 the basis of fraudulent data.\\n\\n13 Bozzuto's contention that its discharge of McCarty did not violate the Act\\n\\n14 because the company did not know at that time that his productivity data had been\\n\\n15 altered--because it did not receive McCarty's screen shots proving such alterations\\n\\n16 until after his discharge--is doubly flawed. First, the distorted notion that an\\n\\n17 employer could successfully defend its improper firing of an employee simply\\n\\n18 because the employee did not show the employer his proof that the employer's own\\n\\n\\n 40\\n\\f 1 relevant records were fraudulent, would turn the law on its head. Second, the record\\n\\n 2 amply supports the Board's finding that Bozzuto's assertion that McCarty was being\\n\\n 3 fired because of low productivity was pretextual. In August 2013, just a month before\\n\\n 4 commencing his union activity, McCarty had been celebrated by Bozzuto for his high\\n\\n 5 level of productivity (see Bozzuto's High Achievers, August 23-25, 2013, \\\"Todd\\n\\n 6 McCarty\\\" (\\\"always doing the right job!\\\")). And McCarty testified that in the past\\n\\n 7 when he brought compensation discrepancies to management's attention they would\\n\\n 8 be corrected. Yet after McCarty's involvement with the Union was known to\\n\\n 9 management, Bozzuto chose to ignore his persistent complaints to supervisors and\\n\\n10 management that his productivity data were being altered, and instead to suspend\\n\\n11 him, and five weeks later to fire him, for low productivity, without making any effort\\n\\n12 to look into his complaints of alteration. After receiving the NLRB's April 2014 letter,\\n\\n13 it took Bozzuto less than five days to verify what McCarty had been protesting--that\\n\\n14 his data had been altered.\\n\\n15 The Board's finding that the discharge of McCarty was motivated by\\n\\n16 antiunion animus and violated the Act was supported by the record as a whole.\\n\\n17 Bozzuto's petition for review in this regard is denied.\\n\\n\\n\\n\\n 41\\n\\f 1 C. The Discharge of Greichen\\n\\n 2 In ruling that the discharge of Greichen violated the Act, the Board\\n\\n 3 majority found that Bozzuto's stated reason for summoning him to the meeting on\\n\\n 4 October 8--i.e., to enlighten and reassure Greichen as to the bona fides of the\\n\\n 5 company's labor standards--\\\"was a pretext,\\\" 365 N.L.R.B. No. 146, slip op. at 4, and\\n\\n 6 instead was \\\"an outgrowth of [Bozzuto's] earlier unlawful warning [on October 1] to\\n\\n 7 Greichen for discussing those standards with other employees,\\\" id. (emphasis added);\\n\\n 8 (see also Board brief in support of petition for enforcement at 40 (arguing that\\n\\n 9 substantial evidence supports finding the October 8 events were linked to Greichen's\\n\\n10 \\\"earlier protected conduct\\\")). The majority found that Greichen would not have been\\n\\n11 summoned to an October 8 meeting had it not been for his pre-October 1 protected\\n\\n12 conduct. 365 N.L.R.B. No. 146, slip op. at 5 n.19; see also id. at 4 (opining that if\\n\\n13 Bozzuto was seriously concerned about Greichen's spreading accusations of corporate\\n\\n14 dishonesty, \\\"it would have done more than simply discharge Greichen\\\"). The\\n\\n15 majority also found that when Winans and Vaughan told Greichen that he would not\\n\\n16 be discharged if he attended the meeting, they did not tell him he would not be\\n\\n17 disciplined in any other way. See id. at 4 n.15. We conclude that none of these\\n\\n18 findings are supported by substantial evidence in the record as a whole.\\n\\n\\n 42\\n\\f 1 First, to support its inference that summoning Greichen to the October\\n\\n 2 8 meeting was pretextual, the Board principally stated that\\n\\n 3 [t]he evidence shows that the meeting was not organized in a manner\\n 4 typical to those held to address complaints about production and safety\\n 5 standards. Jamie Wright, the industrial engineer Clark directed to\\n 6 participate in the meeting, testified that, contrary to past practice,\\n 7 Clark was \\\"vague and [unspecific,] saying [he wanted] to have a\\n 8 meeting with an associate about standards.\\\" Wright asked for\\n 9 more information and Clark declined to give him any more\\n10 information, noting only that the meeting was about standards.\\n11 Wright testified that he was not told about the nature of the\\n12 complaint or given any information to prepare for the meeting and that\\n13 it was \\\"atypically vague\\\" and \\\"frustrating.\\\"\\n\\n14 Id. at 4 (emphases added). We have several difficulties with this rationale, given\\n\\n15 Wright's testimony as a whole.\\n\\n16 Although the Board emphasized the facts that Rick Clark did not tell\\n\\n17 Wright either who the employee was or the nature of the concerns, some lack of\\n\\n18 specificity is understandable, given that Greichen was not complaining about a\\n\\n19 particular task or standard but had made a broadside assault on the company,\\n\\n20 claiming that it was manipulating the labor standards every day for the purpose of\\n\\n21 cheating the employees. And as to any impact of the lack of detail, Wright said it was\\n\\n22 \\\"[a] little frustrating\\\" (Tr. 606), that he was only \\\"vaguely frustrated and I got over it\\n\\n23 in a hurry. I mean this is not a big ordeal [sic]. To me it was just okay, Rick, you want\\n\\n\\n 43\\n\\f 1 me to prepare for a meeting. Okay. Alright. I'll talk about standards. . . . [And the\\n\\n 2 identity of the employee] wasn't something that mattered to me\\\" (id. at 614-15; id.\\n\\n 3 at 611 (\\\"It was about standards.\\\").)\\n\\n 4 Further, while the Board also emphasized that Wright himself did not\\n\\n 5 make special preparations for this meeting, Wright testified that when Clark told him\\n\\n 6 on October 8 \\\"to attend a meeting with an employee who had questions about\\n\\n 7 standards,\\\" Wright asked whether he could bring \\\"David Heatley, who was [his]\\n\\n 8 senior industrial engineer, and [Clark] said yes. And David developed a small . . .\\n\\n 9 packet of information to review with the employee\\\" (Tr. 557).\\n\\n10 The Board found that Heatley's preparation of materials for the October\\n\\n11 8 meeting, \\\"which included a 1-page example of Greichen's work,\\\" did not undermine\\n\\n12 \\\"Wright's testimony or [the Board's] conclusion that the stated reason for the meeting\\n\\n13 was a pretext,\\\" giving as its reasons only that \\\"Heatley did not testify\\\" in the hearing\\n\\n14 before the ALJ and that there was \\\"no evidence indicating why Heatley chose to\\n\\n15 include an example of Greichen's work in the packet of materials,\\\" 365 N.L.R.B. No.\\n\\n16 146, slip op. at 4 n.17. It is true that Heatley did not testify. But there is no dispute\\n\\n17 that he had in fact prepared materials for the meeting, apparently having determined\\n\\n18 that the employee in question was Greichen (see, e.g., Tr. 612-13); that Heatley\\n\\n\\n 44\\n\\f 1 appeared for the scheduled meeting with the prepared materials in hand (see id.\\n\\n 2 at 614-15, 559); that he gave copies of those materials to Wright, his boss (see id.\\n\\n 3 at 615); and that the materials themselves were introduced in evidence at the hearing\\n\\n 4 before the ALJ (see id. at 557-58). Further, Wright testified before the ALJ as to the\\n\\n 5 nature of the materials, which were screen prints of a \\\"portion of a labor standards\\n\\n 6 table,\\\" an example of a \\\"work assignment that ha[d] not been . . . assigned to\\n\\n 7 somebody yet,\\\" and an assignment that \\\"actually had been assigned to and was\\n\\n 8 worked [on] by Mr. Greichen.\\\" (Id. at 558.) Wright also testified that he had \\\"used\\n\\n 9 materials like this before in meetings with other employees.\\\" (Id.)\\n\\n10 In sum, the Board's finding that \\\"the [October 8] meeting was not\\n\\n11 organized in a manner typical to those held to address complaints about production\\n\\n12 and safety standards,\\\" 365 N.L.R.B. No. 146, slip op. at 4, is not supported by the\\n\\n13 record as a whole. It is instead belied by the facts that the chief industrial engineer\\n\\n14 was asked to attend the meeting; he was told that the subject was labor standards; he\\n\\n15 asked to have his senior assistant engineer attend the meeting; that assistant\\n\\n16 assembled, in advance of the meeting, materials on the labor standards and reporting\\n\\n17 forms to be used by employees; the assistant engineer determined the identity of the\\n\\n18 employee in question and included in the meeting materials an example of that\\n\\n\\n 45\\n\\f 1 employee's records; the assistant engineer gave copies of the materials to the chief\\n\\n 2 engineer for the meeting; both engineers showed up at the time and place scheduled\\n\\n 3 for the meeting; and the chief engineer testified that he had \\\"used materials like this\\n\\n 4 before in meetings with other employees\\\" (Tr. 558).\\n\\n 5 Given the context of a meeting called to correct Greichen's understanding\\n\\n 6 of the labor standards, it is difficult to fathom the Board's stated need for additional\\n\\n 7 evidence as to why the materials brought to the meeting included not only generic\\n\\n 8 labor standard materials but also an example of Greichen's own work, as a frame of\\n\\n 9 reference with which Greichen would be familiar. What does seem atypical was the\\n\\n10 accusatory nature of Greichen's complaint.\\n\\n11 Second, the Board appears to have found that Greichen in fact was not\\n\\n12 given any assurance \\\"that there would be no adverse consequences if he attended the\\n\\n13 [October 8] meeting,\\\" 365 N.L.R.B. No. 146, slip op. at 4 n.15 (emphasis added), stating\\n\\n14 that the recorded evidence\\n\\n\\n\\n\\n15 of Winans' and Greichen's conversation prior to the meeting\\n16 reflects only that Greichen understood that he would not be\\n17 discharged if he attended the meeting, rather than that he would\\n18 not be disciplined as he had been just a week earlier,\\n\\n\\n\\n 46\\n\\f 1 id. (first emphasis added; other emphases in original). The tape itself does not reflect\\n\\n 2 that Greichen's understanding was so limited, for in that conversation--surreptitiously\\n\\n 3 recorded by Greichen--his acknowledgement of his understanding as to whether he\\n\\n 4 would or would not be discharged was not the end of the discussion (see\\n\\n 5 Transcription of Tapes (\\\"Tape\\\") at 21). Rather, the Board failed to note that after that\\n\\n 6 acknowledgement, Greichen evinced concern precisely about the possibility of lesser\\n\\n 7 disciplines as well, as he proceeded to point out that he had attended a meeting the\\n\\n 8 week before, in which he was criticized for his \\\"behavior\\\" (id.). And after further\\n\\n 9 discussion, Vaughan reiterated that if Greichen refused to attend the meeting \\\"that\\n\\n10 is considered insubordination\\\" and \\\"you're going to be suspended pending\\n\\n11 [termination]\\\" (Tape at 24); but Vaughan told him if you do attend \\\"there's nothing\\n\\n12 here that's unsafe or discriminatory or harassment in this meeting,\\\" \\\"you're not going\\n\\n13 to lose incentive [or pay],\\\" \\\"we're not doing anything negative to you\\\" (id.) (emphases\\n\\n14 added)). Greichen then said \\\"My choice is not to go to the meeting.\\\" (Tape at 24-25.)\\n\\n15 The finding that Greichen did not understand that attending the meeting would not\\n\\n16 expose him to \\\"any[]\\\" discipline is not supported by the record.\\n\\n17 Finally, while the Board majority agreed with the ALJ's view that it was\\n\\n18 impossible to \\\"separate\\\" the October 8 order that Greichen meet with management\\n\\n\\n 47\\n\\f 1 from the improper October 1 warning to Greichen that he should not discuss terms\\n\\n 2 and conditions of employment with his coworkers, see, e.g., 365 N.L.R.B. No. 146, slip\\n\\n 3 op. at 17 (ALJ stating \\\"I frankly don't see how one can separate these\\\"); id. at 4 (Board\\n\\n 4 \\\"agree[ing] with the judge that [Bozzuto's] insistence that Greichen attend the October\\n\\n 5 8 meeting to discuss his ongoing concerns about [Bozzuto's] productivity standards\\n\\n 6 was an outgrowth of [Bozzuto's] earlier unlawful warning [on October 1] to Greichen\\n\\n 7 for discussing those standards with other employees\\\"), the record does not reveal\\n\\n 8 such a connection. We have seen no evidence, for example, that after October 1\\n\\n 9 Bozzuto subjected Greichen to surveillance to see whether he was disregarding its\\n\\n10 (unlawful) instruction not to discuss working conditions with his coworkers, or\\n\\n11 otherwise targeted him in an effort to \\\"create[ an] allegedly 'for cause' basis for\\n\\n12 discharge,\\\" Consolidated Bus, 577 F.3d at 479 (emphasis in original); see id. at 474 n.2\\n\\n13 (employer conceded that it followed and surveilled an employee, and singled him out\\n\\n14 for performance testing because of its antiunion animus). Rather, on October 8,\\n\\n15 Bozzuto was responding to Greichen's approach to Winans, and to Greichen's\\n\\n16 disclosure that he had begun engaging in conduct that was qualitatively different.\\n\\n17 Whereas Greichen had previously been complaining merely that the\\n\\n18 standards did not provide enough time to complete the assigned tasks, there is no\\n\\n\\n 48\\n\\f 1 evidence that his October 1 complaints impugned the company's honesty and\\n\\n 2 integrity. On October 8, however, \\\"Greichen told Winans that 'he tells anybody and\\n\\n 3 everybody he can that he believes [the Company is] purposely changing the daily\\n\\n 4 standards in order to screw the associates'\\\" (Board brief in support of petition for\\n\\n 5 enforcement at 8-9 (quoting Winans Memorandum of Greichen's October 8\\n\\n 6 statements (emphases ours))). This is a serious qualitative difference. As stated by\\n\\n 7 the Board dissenter, \\\"This should go without saying, but I will say it anyway:\\n\\n 8 complaining that [Bozzuto's] production standards are too demanding and accusing\\n\\n 9 [Bozzuto] of being a wage cheat are very different matters . . . .\\\" 365 N.L.R.B. No. 146,\\n\\n10 slip op. at 10 (emphases added). The Board majority's view that if Greichen had made\\n\\n11 no previous complaints about the standards he would not have been called upon by\\n\\n12 management to address his accusations of corporate dishonesty--which he said he\\n\\n13 was telling to anyone who would listen--is unrealistic.\\n\\n14 In sum, despite Bozzuto's now-conceded violation of the Act on October\\n\\n15 1 by warning Greichen for complaining to coworkers about the stringency of the labor\\n\\n16 standards, we cannot conclude that substantial evidence supports the Board's finding\\n\\n17 that, if he had not previously complained about tight labor standards, Greichen\\n\\n18 would not have been ordered to attend the October 8 meeting with respect to his\\n\\n\\n 49\\n\\f 1 accusation--which, according to his own description, he widely trumpeted--that\\n\\n 2 Bozzuto was intentionally \\\"screw[ing]\\\" the employees.\\n\\n 3 Greichen's refusal to attend the meeting constituted insubordination. For\\n\\n 4 such conduct, Bozzuto had a no-tolerance policy that predated any union-related\\n\\n 5 activity and called for termination of an employee upon the first occurrence of\\n\\n 6 insubordination. Bozzuto's insistence that Greichen, in light of his accusations of\\n\\n 7 cheating, attend a meeting with the engineers in order to educate him as to why he\\n\\n 8 was wrong about the labor standards, and its termination of his employment upon\\n\\n 9 his steadfast refusal to attend, did not violate the Act.\\n\\n\\n\\n\\n10 D. The Board's Remedies\\n\\n11 In light of our conclusions that Bozzuto did not violate the Act in\\n\\n12 discharging Greichen and posing the \\\"what's going on with this union stuff\\\" question\\n\\n13 to McCarty, the remedies ordered by the Board with respect to those findings are not\\n\\n14 enforced.\\n\\n15 We also do not enforce the Board's order that its findings of unfair labor\\n\\n16 practices and its remedial notice be read aloud by Clark, or by a Board member in\\n\\n17 Clark's presence, at a meeting of Bozzuto's employees. The ALJ declined to\\n\\n\\n 50\\n\\f 1 recommend such an extraordinary remedy, finding it inappropriate. While the Board\\n\\n 2 majority ordered the public reading, it did so without making findings contrary to\\n\\n 3 those of the ALJ that Bozzuto had not been guilty of any prior unfair labor practices\\n\\n 4 and that it was not likely to engage in unfair labor practices in the future. In these\\n\\n 5 circumstances, and with two of the unfair labor practice findings of the ALJ and the\\n\\n 6 Board being overturned, the extraordinary remedy of a public reading to employees\\n\\n 7 is even more inappropriate.\\n\\n 8 Bozzuto remains liable for engaging in several unfair labor practices--\\n\\n 9 raising wages in an attempt to discourage employees from joining the Union,\\n\\n10 adopting a restrictive speech policy for disciplined employees, warning Greichen\\n\\n11 against talking with coworkers about conditions of employment, and suspending and\\n\\n12 firing McCarty in reliance on fraudulent alterations of his production records. These\\n\\n13 are not inconsequential violations. But they do not warrant an order for a public\\n\\n14 reading.\\n\\n\\n\\n\\n 51\\n\\f1 CONCLUSION\\n\\n\\n\\n\\n2 We have considered all of the parties' arguments in support of their\\n\\n3 respective positions on these petitions and, except as indicated above, have found\\n\\n4 them to be without merit. The petition for review is granted with respect to the\\n\\n5 rulings and orders relating to the interrogation of McCarty and the discharge of\\n\\n6 Greichen, and with respect to the order that the Board's remedial notice be read aloud\\n\\n7 at a meeting of employees. In all other respects, the petition for review is denied. The\\n\\n8 Board's cross-petition for enforcement is granted in all respects except those in which\\n\\n9 the petition for review is granted.\\n\\n\\n\\n\\n 52\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":23,"numItemsPerPage":100,"numTotalItems":31175,"offset":2300,"length":100}},"jwt":"eyJhbGciOiJFZERTQSJ9.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc3ODgxMDA5NCwic3ViIjoiL2RhdGFzZXRzL2VpdGFucy1wdS9jbC1jb2RpbmctaW5wdXQiLCJleHAiOjE3Nzg4MTM2OTQsImlzcyI6Imh0dHBzOi8vaHVnZ2luZ2ZhY2UuY28ifQ.M7F2O5aKxek_itzagUhTT8cRnPdHjpOp-bsWb2CuDFck9EKlefCcczQa67L_xi2UGHGpfA6qsYTAIjao6IrGAw","displayUrls":true,"splitSizeSummaries":[{"config":"default","split":"train","numRows":31175,"numBytesParquet":1629387251}]},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false,"savedQueries":{"community":[],"user":[]}}">
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4,617,264 | UNITED STATES of America, Appellee v. Tyrone WRIGHT, Appellant | United States v. Tyrone Wright | 2019-05-07 | 17-3033 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Griffith, Pillard, Sentelle", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge GRIFFITH", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 1, 2018 Decided May 7, 2019\n\n ... | GRIFFITH | PILLARD | SENTELLE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4617264/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,617,265 | MARSHALL COUNTY COAL COMPANY, Et Al., Petitioners v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION and Secretary of Labor, Mine Safety and Health Administration, Respondents United Mine Workers of America International Union, Intervenor | Marshall Cnty. Coal Co. v. Fed. Mine Safety & Health Review Comm'n & Sec'y of Labor | 2019-05-07 | 18-1098 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Millett, Pillard, Edwards", "parties": "", "opinions": [{"type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued January 15, 2019 Decided May 7, 2019\n\n No. 18-1098\n\n MARSHALL COUNTY COAL ... | MILLETT | PILLARD | EDWARDS | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4617265/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
7,335,793 | Norma W. PERKINS v. Nancy BERYHILL, in her official capacity as Acting Commissioner of the U.S. Social Security Administration | Perkins v. Beryhill | 2019-05-07 | Case No. 1:17-cv-01013 (TNM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "McFadden", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253713/", "author_raw": ""}]} | MCFADDEN | MCFADDEN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7335793/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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7,336,310 | K.W. v. DISTRICT OF COLUMBIA | K.W. v. District. of Columbia | 2019-05-07 | Civil Action No. 18-2578 (RMC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Collyer", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254230/", "author_raw": ""}]} | COLLYER | COLLYER | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336310/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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7,335,888 | Monique N. WEATHERSPOON v. Alex M. AZAR, II, Secretary, Department of Health and Human Services | Weatherspoon v. Azar | 2019-05-08 | Case No. 1:17-cv-00871 (TNM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "McFadden", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253808/", "author_raw": ""}]} | MCFADDEN | MCFADDEN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7335888/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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7,336,490 | United States v. Thomas FIELDS | United States v. Fields | 2019-05-09 | Criminal Action No. 98-71 (BAH) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254410/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336490/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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4,618,587 | Henri MAALOUF, Et Al., Appellants v. ISLAMIC REPUBLIC OF IRAN and Iranian Ministry of Information and Security, Appellees Nasrin Akhtar Sheikh, as the Spouse of Fahrat Mahmood Sheikh, an Employee of the United States Government or an Employee of a Contractor for the United States Government Deceased, Et Al., Appellants... | Rita Bathiard v. Islamic Republic of Iran | 2019-05-10 | 18-7052; C/w 18-7053; 18-7060; C/w 18-7065; 18-7090; 18-7122 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Srinivasan, Pillard, Edwards", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge EDWARDS.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued February 8, 2019 Decided May 10, 20... | SRINIVASAN | PILLARD | EDWARDS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4618587/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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4,618,588 | Richard A. FIGUEROA, Appellant v. Michael R. POMPEO, Secretary, U.S. Department of State, Appellee | Richard Figueroa v. Michael Pompeo | 2019-05-10 | 18-5064 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Edwards, Henderson, Wilkins", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge WILKINS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued January 14, 2019 Decided May 10, 2019\n\n ... | EDWARDS | HENDERSON | WILKINS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4618588/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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4,619,184 | Richard Figueroa v. Michael Pompeo | 2019-05-10 | 18-5064 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: HENDERSON and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge WILKINS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued Janu... | HENDERSON | WILKINS | EDWARDS | 1 | {"HENDERSON": ", Circuit", "WILKINS": ", Circuit", "EDWARDS": ", Senior Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4619184/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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7,335,707 | IN RE DOMESTIC AIRLINE TRAVEL ANTITRUST LITIGATION This Document Relates To: All Cases | In re Domestic Airline Travel Antitrust Litigation | 2019-05-13 | MDL Docket No. 2656; Misc. No. 15-1404 (CKK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Kollar, Kotelly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253627/", "author_raw": ""}]} | KOLLAR | KOLLAR | KOTELLY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7335707/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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7,336,401 | Leigh BROWN v. FEDERAL ELECTION COMMISSION | Brown v. Fed. Election Comm'n | 2019-05-13 | Civil Action No. 19-1021 (TJK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Kelly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254321/", "author_raw": ""}]} | KELLY | KELLY | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336401/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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4,619,181 | UNITED STATES of America, Appellee v. Haji BAGCHO, Also Known as Haji Bagh Chagul, Also Known as Haji Bagchagul, Appellant | United States v. Haji Bagcho | 2019-05-14 | 12-3042; C/w 17-3009, 17-3069 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Rogers, Millett, Ginsburg", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888504/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest... | ROGERS | MILLETT | GINSBURG | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4619181/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 5 | [
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4,619,182 | ESTATE OF Esther KLIEMAN, BY AND THROUGH Its Administrator, Aaron KESNER, Et Al., Appellants v. PALESTINIAN AUTHORITY, Also Known as Palestinian Interim Self-Government Authority and Palestinian Liberation Organization, Also Known as PLO, Appellees | Estate of Klieman by and Through Kesner v. Palestinian Auth. | 2019-05-14 | 15-7034 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Garland, Katsas, Williams", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge WILLIAMS.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued December 13, 2018 Decided May 14, 2019\... | GARLAND | KATSAS | WILLIAMS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4619182/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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4,619,183 | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and Melanie T. Sloan, Appellants v. FEDERAL ELECTION COMMISSION, Appellee | Citizens for Responsibility and Ethics in Washington v. FEC (ORDER IN SLIP OPINION FORMAT) | 2019-05-14 | 17-5049 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: GARLAND, Chief Judge; HENDERSON, ROGERS, TATEL, GRIFFITH***, SRINIVASAN, MILLETT, PILLARD***, WILKINS**, KATSAS, and RAO*, Circuit Judges ORDER Appellants’ petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested.", "parties": "", "opinions"... | GARLAND | HENDERSON | ROGERS | 2 | TATEL; GRIFFITH; SRINIVASAN; MILLETT; PILLARD; WILKINS; KATSAS; RAO | {"GARLAND": ", Chief", "HENDERSON": ", Circuit", "ROGERS": ", Circuit", "TATEL": ", Circuit", "GRIFFITH": ", Circuit", "SRINIVASAN": ", Circuit", "MILLETT": ", Circuit", "PILLARD": ", Circuit", "WILKINS": ", Circuit", "KATSAS": ", Circuit", "RAO": ", Circuit"} | 5 | 0 | 2 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4619183/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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7,336,041 | United States v. Mustafa Muhammad Muftah AL-IMAM | United States v. Al-Imam | 2019-05-16 | Case No. 17-cr-00213 (CRC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Cooper", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253961/", "author_raw": ""}]} | COOPER | COOPER | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336041/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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7,336,491 | Maggie SMITH v. DISTRICT OF COLUMBIA | Smith v. Dist. of Columbia | 2019-05-16 | Civil Case No. 15-737 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Lamberth", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254411/", "author_raw": ""}]} | LAMBERTH | LAMBERTH | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336491/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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4,620,853 | Larry HAYNES, Appellant v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Appellee | Larry Haynes v. District of Columbia Water | 2019-05-17 | 17-7147 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Henderson, Griffith, Williams", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge GRIFFITH", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued September 12, 2018 Decided May 17, 2019\n\n... | HENDERSON | GRIFFITH | WILLIAMS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4620853/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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7,336,761 | Ricca PRASAD v. The GEORGE WASHINGTON UNIVERSITY | Prasad v. George Wash. Univ. | 2019-05-17 | Civil Action No. 15-1779 (ABJ) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254681/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336761/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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7,335,889 | Donald J. TRUMP v. COMMITTEE ON OVERSIGHT AND REFORM OF the U.S. HOUSE OF REPRESENTATIVES | Trump v. Oversight | 2019-05-20 | Case No. 19-cv-01136 (APM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253809/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7335889/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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4,621,592 | Ronald Eugene DUBERRY, Et Al., Appellees v. DISTRICT OF COLUMBIA, Appellant | Duberry v. Dist. of Columbia | 2019-05-21 | 18-7102 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Rogers, Wilkins, Edwards", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge EDWARDS.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued March 8, 2019 Decided May 21, 2019\... | ROGERS | WILKINS | EDWARDS | 1 | {} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4621592/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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4,621,593 | Libertarian National Committee v. FEC | 2019-05-21 | 18-5227 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: GARLAND, Chief Judge, and HENDERSON, ROGERS, TATEL, GRIFFITH, SRINIVASAN, MILLETT, PILLARD, WILKINS, and KATSAS, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued November 30, 20... | GARLAND | HENDERSON | ROGERS | 2 | TATEL; GRIFFITH; SRINIVASAN; MILLETT; PILLARD; WILKINS; KATSAS | {"GARLAND": ", Chief", "HENDERSON": ", Circuit", "ROGERS": ", Circuit", "TATEL": ", Circuit", "GRIFFITH": ", Circuit", "SRINIVASAN": ", Circuit", "MILLETT": ", Circuit", "PILLARD": ", Circuit", "WILKINS": ", Circuit", "KATSAS": ", Circuit"} | 3 | 0 | 1 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4621593/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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4,621,594 | James OWENS, Et Al., Appellees v. REPUBLIC OF SUDAN, Ministry of External Affairs and Ministry of the Interior of the Republic of the Sudan, Appellants | James Owens v. Republic of Sudan | 2019-05-21 | 14-5105; C/w 14-5106; 14-5107; 14-7124; 14-7125; 14-7127; 14-7128; 14-7207; 16-7044; 16-7045; 16-7046; 16-7048; 16-7049; 16-7050; 16-7052 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Henderson, Rogers, Ginsburg", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge GINSBURG.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 11, 2016 Decided May 21, 2019\... | HENDERSON | ROGERS | GINSBURG | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4621594/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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4,621,595 | DL, Et Al., Appellants v. DISTRICT OF COLUMBIA, a Municipal Corporation, Et Al., Appellees | DL v. Dist. of Columbia, Corp. | 2019-05-21 | 18-7004 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Garland, Tatel, Sentelle", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge TATEL", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued March 19, 2019 Decided May 21, 2019\n\n ... | GARLAND | TATEL | SENTELLE | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4621595/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
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8,444,001 | LIBERTARIAN NATIONAL COMMITTEE, INC. v. FEDERAL ELECTION COMMISSION | Libertarian Nat'l Comm., Inc. v. Fed. Election Comm'n | 2019-05-21 | No. 18-5227 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Griffith, Tatel", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415435/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/... | GRIFFITH | TATEL | GRIFFITH | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444001/ | Published | 0 | 1 | 0 | 1 | 0 | 2,019 | 5 | [
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7,336,311 | Kusuma NIO v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY | Nio v. U.S. Dep't of Homeland Sec. | 2019-05-22 | Civil Action No. 17-0998 (ESH) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Huvelle", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254231/", "author_raw": ""}]} | HUVELLE | HUVELLE | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336311/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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7,336,582 | Juan Luciano MACHADO AMADIS v. DEPARTMENT OF JUSTICE | Amadis v. Dep't of Justice | 2019-05-22 | Case No. 1:16-cv-2230 (TNM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "McFadden", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254502/", "author_raw": ""}]} | MCFADDEN | MCFADDEN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336582/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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7,336,583 | AMERICAN BAR ASSOCIATION v. UNITED STATES DEPARTMENT OF EDUCATION | Am. Bar Ass'n v. U.S. Dep't of Educ. | 2019-05-22 | Civil Action No. 16-2476 (TJK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Kelly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254503/", "author_raw": ""}]} | KELLY | KELLY | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336583/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
7,336,584 | PUBLIC CITIZEN, INC. v. UNITED STATES DEPARTMENT OF EDUCATION | Pub. Citizen, Inc. v. U.S. Dep't of Educ. | 2019-05-22 | Civil Action No. 18-1047 (CKK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Kollar, Kotelly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254504/", "author_raw": ""}]} | KOLLAR | KOLLAR | KOTELLY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336584/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,623,132 | UNITED STATES of America, Appellee v. James DUCKETT, Appellant | United States v. James Duckett | 2019-05-24 | 18-3026 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Griffith, Srinivasan, Randolph", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge RANDOLPH.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued April 4, 2019 Decided May 24... | GRIFFITH | SRINIVASAN | RANDOLPH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4623132/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,623,133 | Jeff BLAU, Tax Matters Partner of Reri Holdings I, LLC, Appellant v. COMMISSIONER OF INTERNAL REVENUE SERVICE, Appellee | Jeff Blau, Tax Matters Partner of RERI Holdings I, LLC v. Commissioner of IRS | 2019-05-24 | 17-1266 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Rogers, Millett, Ginsburg", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge GINSBURG.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued November 9, 2018 Decided May 24, 2019\... | ROGERS | MILLETT | GINSBURG | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4623133/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
7,336,312 | United States v. CONCORD MANAGEMENT & CONSULTING LLC | United States v. Concord Mgmt. & Consulting LLC | 2019-05-24 | Criminal Action No. 18-cr-32-2 (DLF) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Friedrich", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254232/", "author_raw": ""}]} | FRIEDRICH | FRIEDRICH | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336312/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
7,336,492 | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. U.S. DEPARTMENT OF HOMELAND SECURITY | Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Homeland Sec. | 2019-05-24 | Civil Action No.: 18-2473 (RC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Contreras", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254412/", "author_raw": ""}]} | CONTRERAS | CONTRERAS | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336492/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,444,070 | United States v. James DUCKETT | United States v. Duckett | 2019-05-24 | No. 18-3026 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Randolph", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415509/", "author_raw": ""}]} | RANDOLPH | RANDOLPH | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444070/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,623,610 | Deborah A. TRUDEL, Et Al., Appellants v. SUNTRUST BANK, Also Known as SunTrust Banks, Inc., Et Al., Appellees | Deborah Trudel v. SunTrust Bank | 2019-05-28 | 18-7068 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Rogers, Millett, Katsas", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge KATSAS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued January 23, 2019 Decided May 28, 2019\n\n ... | ROGERS | MILLETT | KATSAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4623610/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,623,611 | D.C. HEALTHCARE SYSTEMS, INC., Appellant v. DISTRICT OF COLUMBIA, a Municipal Corporation, Et Al., Appellees | D.C. Healthcare Sys., Inc. v. Dist. of Columbia, Corp. | 2019-05-28 | 17-7141 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Garland, Griffith, Pillard", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Chief Judge GARLAND", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued November 16, 2018 Decided May 28, 2019\n\n ... | GARLAND | GRIFFITH | PILLARD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4623611/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,623,612 | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and National Security Archive, Appellants v. Donald J. TRUMP, the Honorable, President of the United States of America and Executive Office of the President of the United States, Appellees | Citizens for Responsibility & Ethics in Wash. & Nat'l SEC. Archive v. Trump | 2019-05-28 | 18-5150 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Tatel, Pillard, Edwards", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge TATEL", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued March 15, 2019 Decided May 28, 2019\n\n ... | TATEL | PILLARD | EDWARDS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4623612/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
7,336,495 | ANGLERS CONSERVATION NETWORK v. Wilbur L. ROSS, Jr. | Anglers Conservation Network v. Ross | 2019-05-28 | Civil Action No. 14-509 (TJK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254415/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336495/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
4,625,217 | SIERRA CLUB, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Administrator, U.S. Environmental Protection Agency, Respondents | Sierra Club v. Envtl. Prot. Agency | 2019-05-31 | 16-1158 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Griffith, Wilkins, Williams", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge WILLIAMS.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued December 10, 2018 Decided May 31, 201... | GRIFFITH | WILKINS | WILLIAMS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625217/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,625,218 | NATIONAL PARKS CONSERVATION ASSOCIATION, Appellant v. Todd T. SEMONITE, Lieutenant General, Et Al., Appellees | Nat'l Parks Conservation Ass'n v. Semonite | 2019-05-31 | 18-5179; C/w 18-5186 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: GARLAND, Chief Judge, and TATEL and MILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n Decided May 31, 2019\n\n ... | GARLAND | TATEL | MILLETT | 1 | {"GARLAND": ", Chief", "TATEL": ", Circuit", "MILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625218/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
7,336,143 | Tammie FROST v. ISLAMIC REPUBLIC OF IRAN | Frost v. Islamic Republic Iran | 2019-05-31 | Civil Action No. 17-603 (TJK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Kelly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254063/", "author_raw": ""}]} | KELLY | KELLY | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336143/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,615,365 | AMARIN PHARMA, INC., Amarin Pharmaceuticals Ireland Ltd., Appellants v. INTERNATIONAL TRADE COMMISSION, Appellee Royal DSM NV, DSM Marine Lipids Peru S.A.C., DSM Nutritional Products LLC, DSM Nutritional Products Canada, Inc., Pharmavite LLC, Nordic Naturals, Inc., Nordic Pharma, Inc., Intervenors in Re: Amarin Pharma,... | Amarin Pharma, Inc. v. Int'l Trade Comm'n (In Re Amarin Pharma, Inc.) | 2019-05-01 | 2018-1247; 2018-114 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Prost, Wallach, Hughes", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888435/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opi... | PROST | WALLACH | HUGHES | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4615365/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,615,445 | THERMOLIFE INTERNATIONAL LLC, Board of Trustees of the Leland Stanford Junior University, Plaintiffs-Appellants v. GNC CORPORATION, General Nutrition Centers, Inc., General Nutrition Corporation, Defendants Hi-Tech Pharmaceuticals, Inc., Vital Pharmaceuticals, Inc, Defendants-Appellees | Thermolife International LLC v. Gnc Corporation | 2019-05-01 | 2018-1657; 2018-1666 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Bryson, Stoll, Taranto", "parties": "", "opinions": [{"author": "TARANTO, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\nTHERMOLIFE INTERNATIONAL LLC, BOARD OF\nTRUSTEES OF THE LELAND STANFORD JUNIOR\... | BRYSON | STOLL | TARANTO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4615445/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,616,068 | NATIONAL GOVERNMENT SERVICES, INC., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee | National Government Services v. United States | 2019-05-02 | 2018-1927 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Prost, Moore, Wallach", "parties": "", "opinions": [{"author": "PROST, Chief Judge", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n NATIONAL GOVERNMENT SERVICES, INC.,\n Plaintiff-Appellant\n\n ... | PROST | MOORE | WALLACH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4616068/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,616,069 | KALLE USA, INC., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee | Kalle USA, Inc. v. United States | 2019-05-02 | 2018-1378 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Chen, Dyk, Hughes", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888443/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opin... | CHEN | DYK | HUGHES | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4616069/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,616,606 | Rachel MCCULLOCH, as Parent and Legal Guardian of A.M., Petitioner-Appellee v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellant | McCulloch v. Sec'y of Health & Human Servs. | 2019-05-03 | 2018-2046 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Lourie, O'Malley, Taranto", "parties": "", "opinions": [{"author": "TARANTO, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n RACHEL MCCULLOCH, AS PARENT AND LEGAL\n GUARDIAN OF A.M.,\n ... | LOURIE | O'MALLEY | TARANTO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4616606/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,616,607 | ENDO PHARMACEUTICALS INC., Mallinckrodt LLC, Plaintiffs-Appellees v. ACTAVIS LLC, Fka Actavis Inc., Actavis South Atlantic LLC, Teva Pharmaceuticals USA, Inc., Defendants-Appellants | Endo Pharmaceuticals Inc. v. Actavis LLC | 2019-05-03 | 2018-1054 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Wallach, Clevenger, Stoll", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888451/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/... | WALLACH | CLEVENGER | STOLL | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4616607/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,616,963 | Lance ROBINSON, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent | Robinson v. Dep't of Veterans Affairs | 2019-05-06 | 2017-2143 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Reyna, Taranto, Chen", "parties": "", "opinions": [{"author": "REYNA, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n LANCE ROBINSON,\n Petitioner\n\n ... | REYNA | TARANTO | CHEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4616963/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,617,563 | AMGEN INC., Amgen Manufacturing, Limited, Plaintiffs-Appellants v. SANDOZ INC., Sandoz International GMBH, Sandoz GMBH, Defendants-Appellees Amgen Inc., Amgen Manufacturing, Limited, Plaintiffs-Appellants v. Sandoz Inc., Sandoz International GMBH, Sandoz GMBH, LEK Pharmaceuticals, D.D., Defendants-Appellees | Amgen Inc. v. Sandoz Inc. | 2019-05-08 | 2018-1551; 2018-1552 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Lourie, O'Malley, Reyna", "parties": "", "opinions": [{"author": "LOURIE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n AMGEN INC., AMGEN MANUFACTURING,\n LIMITED,\n ... | LOURIE | O'MALLEY | REYNA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4617563/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,617,607 | SUMECHT NA, INC., Dba Sumec North America, Plaintiff-Appellant v. UNITED STATES, Solarworld Americas, Inc., Defendants-Appellees | Sumecht Na, Inc. v. United States | 2019-05-08 | 2019-1015 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Moore, Clevenger, Wallach", "parties": "", "opinions": [{"author": "WALLACH, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n SUMECHT NA, INC., DBA SUMEC NORTH\n AMERICA,\n ... | MOORE | CLEVENGER | WALLACH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4617607/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,618,104 | SWAGWAY, LLC, Appellant v. INTERNATIONAL TRADE COMMISSION, Appellee Segway, Inc., DEKA Products Limited Partnership, Ninebot (Tianjin) Technology Co., Ltd., Intervenors | Swagway, LLC v. Int'l Trade Comm'n | 2019-05-09 | 2018-1672 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Dyk, Mayer, Clevenger", "parties": "", "opinions": [{"author": "CLEVENGER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n SWAGWAY, LLC,\n Appellant\n\n ... | DYK | MAYER | CLEVENGER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4618104/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,012 | BMW OF NORTH AMERICA LLC v. UNITED STATES, Timken Company | BMW of N. Am. LLC v. United States | 2019-05-09 | 2018-1109 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Malley, Prost, Stoll", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415447/", "author_raw": ""}]} | MALLEY | PROST | STOLL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444012/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,068 | SWAGWAY, LLC v. INTERNATIONAL TRADE COMMISSION, Segway, Inc., DEKA Products Limited Partnership, Ninebot (Tianjin) Technology Co., Ltd., Intervenors | Swagway, LLC v. Int'l Trade Comm'n | 2019-05-09 | 2018-1672 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Clevenger, Dyk, Mayer", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415507/", "author_raw": ""}]} | CLEVENGER | DYK | MAYER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444068/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,618,973 | NOVARTIS PHARMACEUTICALS CORPORATION, Novartis AG, Plaintiffs-Appellees v. WEST-WARD PHARMACEUTICALS INTERNATIONAL LIMITED, Defendant-Appellant | Novartis Pharmaceuticals Corp v. West-Ward Pharmaceuticals | 2019-05-13 | 2018-1434 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Stoll, Plager, Clevenger", "parties": "", "opinions": [{"author": "STOLL, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\nNOVARTIS PHARMACEUTICALS CORPORATION,\n NOVARTIS AG,\n Pl... | STOLL | PLAGER | CLEVENGER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4618973/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,618,977 | BRADIUM TECHNOLOGIES LLC, Appellant v. Andrei IANCU, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Intervenor | Bradium Techs. LLC v. Andrei IANCU | 2019-05-13 | 2017-2579, 2017-2580 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Moore, Reyna, Chen", "parties": "", "opinions": [{"author": "REYNA, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n BRADIUM TECHNOLOGIES LLC,\n Appellant\n\n ... | MOORE | REYNA | CHEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4618977/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,618,978 | AVX CORPORATION, Appellant v. PRESIDIO COMPONENTS, INC., Appellee | Avx Corporation v. Presidio Components, Inc. | 2019-05-13 | 2018-1106 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Newman, O'Malley, Taranto", "parties": "", "opinions": [{"author": "TARANTO, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n AVX CORPORATION,\n Appellant\n\n ... | NEWMAN | O'MALLEY | TARANTO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4618978/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,619,206 | BTG INTERNATIONAL LIMITED, Janssen Biotech, Inc., Janssen Oncology, Inc., Janssen Research & Development, LLC, Plaintiffs-Appellants v. AMNEAL PHARMACEUTICALS LLC, Amneal Pharmaceuticals of New York, LLC, Dr. Reddy's Laboratories, Inc., Dr. Reddy's Laboratories, Ltd., Wockhardt Bio AG, Wockhardt USA LLC, Wockhardt Ltd.... | Btg International Limited v. Amneal Pharmaceuticals LLC | 2019-05-14 | 2019-1147; 2019-1148; 2019-1323; 2019-1324; 2019-1325 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Moore, Wallach, Chen", "parties": "", "opinions": [{"author": "WALLACH, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n BTG INTERNATIONAL LIMITED, JANSSEN\n BIOTECH, INC., JANSSEN ONCOLOGY, INC.,\n... | MOORE | WALLACH | CHEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4619206/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,619,553 | NUVO PHARMACEUTICALS (IRELAND) DESIGNATED ACTIVITY COMPANY, Horizon Medicines LLC, Plaintiffs-Cross-Appellants v. DR. REDDY'S LABORATORIES INC., Dr. Reddy's Laboratories, Ltd., Mylan, Inc., Mylan Pharmaceuticals Inc., Mylan Laboratories Limited, Defendants-Appellants Lupin Ltd., Lupin Pharmaceuticals, Inc., Defendants-... | Nuvo Pharm. (Ireland) Designated Activity Co. v. Dr. Reddy's Labs. Inc. | 2019-05-15 | 2017-2473, 2017-2481, 2017-2484, 2017-2486, 2017-2489, 2017-2491, 2017-2492, 2017-2493 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Prost, Clevenger, Wallach", "parties": "", "opinions": [{"author": "CLEVENGER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n NUVO PHARMACEUTICALS (IRELAND)\n DESIGNATED ACTIVITY COMPANY, HORIZON\... | PROST | CLEVENGER | WALLACH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4619553/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,619,557 | Avx Corporation v. Presidio Components, Inc. | 2019-05-15 | 18-1106 | U.S. Court of Appeals for the Federal Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n May 15, 2019\n\n ERRATA\n ______________________\n\n ... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4619557/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
4,620,179 | SUNPREME INC., Plaintiff-Appellant v. UNITED STATES, SolarWorld Americas, Inc., Defendants-Cross-Appellants | Sunpreme Inc. v. United States | 2019-05-16 | 2018-1116; 2018-1117; 2018-1118 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Prost, Lourie, Clevenger", "parties": "", "opinions": [{"author": "CLEVENGER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n SUNPREME INC.,\n Plaintiff-Appellant\n\n ... | PROST | LOURIE | CLEVENGER | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4620179/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,621,543 | QUEST INTEGRITY USA, LLC, Plaintiff-Appellant v. COKEBUSTERS USA INC., Defendant-Appellee | Quest Integrity USA, LLC v. Cokebusters U.S. Inc. | 2019-05-21 | 2017-2423 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Dyk, Taranto, Hughes", "parties": "", "opinions": [{"author": "DYK, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n QUEST INTEGRITY USA, LLC,\n Plaintiff-Appellant\n\n ... | DYK | TARANTO | HUGHES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4621543/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,622,003 | SONY CORPORATION, Appellant v. Andrei IANCU, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Intervenor | Sony Corporation v. Iancu | 2019-05-22 | 2018-1172 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Prost, Newman, Dyk", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888566/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinion... | PROST | NEWMAN | DYK | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4622003/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,622,555 | PAPST LICENSING GMBH & CO. KG, Appellant v. SAMSUNG ELECTRONICS AMERICA, INC., Samsung Electronics Co., Ltd., Appellees | Papst Licensing Gmbh & Co. Kg v. Samsung Electronics America | 2019-05-23 | 2018-1777 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Dyk, Taranto, Chen", "parties": "", "opinions": [{"author": "TARANTO, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n PAPST LICENSING GMBH & CO. KG,\n Appellant\n\n ... | DYK | TARANTO | CHEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4622555/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,044 | Eddie N. DELA CRUZ, Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs | Cruz v. Wilkie | 2019-05-23 | 2018-2101 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Dyk, Reyna, Wallach", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415482/", "author_raw": ""}]} | DYK | REYNA | WALLACH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444044/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,624,588 | LONE STAR SILICON INNOVATIONS LLC, Plaintiff-Appellant v. NANYA TECHNOLOGY CORPORATION, Nanya Technology Corporation U.S.A., Nanya Technology Corporation Delaware, Defendants-Appellees Lone Star Silicon Innovations LLC, Plaintiff-Appellant v. United Microelectronics Corporation, UMC Group (USA), Defendants-Appellees | Lone Star Silicon Innovations v. Nanya Technology Corporation | 2019-05-30 | 2018-1581; 2018-1582 | U.S. Court of Appeals for the Federal Circuit | {"judges": "O'Malley, Reyna, Chen", "parties": "", "opinions": [{"author": "O'MALLEY, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n LONE STAR SILICON INNOVATIONS LLC,\n Plaintiff-Appellant\n\n ... | O'MALLEY | REYNA | CHEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4624588/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,626,522 | UNITED STATES of America, Appellee, v. Jambulat TKHILAISHVILI, Defendant, Appellant. United States of America, Appellee, v. David Tkhilaishvili, Defendant, Appellant. | United States v. Tkhilaishvili | 2019-06-05 | 18-1027P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Torruella, Selya", "parties": "", "opinions": [{"author": "SELYA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1027\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n ... | HOWARD | TORRUELLA | SELYA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4626522/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,626,523 | UNITED STATES, Appellee, v. José Francisco RODRÍGUEZ-REYES, Defendant, Appellant. | United States v. Rodriguez-Reyes | 2019-06-05 | 18-1217P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Selya, Torruella", "parties": "", "opinions": [{"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1217\n\n UNITED STATES,\n\n Appellee,\n\n ... | LYNCH | SELYA | TORRUELLA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4626523/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,627,970 | Cynthia L. MERLINI, Plaintiff, Appellant, v. CANADA, Defendant, Appellee. | Merlini v. Canada | 2019-06-10 | 17-2211P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Kayatta, Barron", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888690/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opi... | LYNCH | KAYATTA | BARRON | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627970/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,394 | UNITED STATES of America, Appellee, v. Francisco REYES-GOMEZ, Defendant, Appellant. | United States v. Reyes-Gomez | 2019-06-11 | 17-1757P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Stahl, Lipez", "parties": "", "opinions": [{"author": "LIPEZ, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1757\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n ... | LYNCH | STAHL | LIPEZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628394/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,395 | NACM-NEW ENGLAND, INC., D/B/A Business Credit Intelligence, Plaintiff, Appellee, v. NATIONAL ASSOCIATION OF CREDIT MANAGEMENT, INC., Defendant, Appellant. | Nacm-New Eng., Inc. v. Nat'l Ass'n of Credit Mgmt., Inc. | 2019-06-11 | 18-1960P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Lipez, Barron", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1960\n\n NACM-NEW ENGLAND, INC.,\n d/b/a BUSINESS CREDIT INTELLIGEN... | LYNCH | LIPEZ | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628395/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,396 | Norma EZELL, Leonard Whitley, and Erica Biddings, on Behalf of Themselves and Others Similarly Situated, Plaintiffs, Appellants, v. LEXINGTON INSURANCE COMPANY; American International Group, Inc.; AIG Assurance Company ; AIG Insurance Company; AIG Property Casualty Company ; AIG Specialty Insurance Company; American Ge... | Ezell v. Lexington Insurance Company | 2019-06-11 | 18-2064P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Souter, Kayatta", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNo. 18-2064\n\n NORMA EZELL, LEONARD WHITLEY, and ERICA BIDDINGS,\n on behalf of themselves and others similarly situat... | LYNCH | SOUTER | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628396/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,863 | Jaime RODRIGUEZ-PALACIOS, Petitioner, v. William P. BARR, United States Attorney General, Respondent. | Rodriguez-Palacios v. Barr | 2019-06-12 | 18-1430P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Kayatta, Barron", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1430\n\n JAIME RODRIGUEZ-PALACIOS,\n\n Petitio... | LYNCH | KAYATTA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628863/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,864 | Arnulfo PEREZ, Petitioner, v. William P. BARR, United States Attorney General, Respondent. | Perez v. Barr | 2019-06-12 | 18-2026P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Thompson, Barron", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-2026\n\n ARNULFO PEREZ,\n\n Petitioner,\n\n ... | HOWARD | THOMPSON | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628864/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,865 | Raymond LAPOINTE, Plaintiff, Appellant, v. SILKO MOTOR SALES, INC., Defendant, Appellee. | Lapointe v. Silko Motor Sales, Inc. | 2019-06-12 | 18-1848P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Lynch, Lipez", "parties": "", "opinions": [{"author": "LIPEZ, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1848\n\n RAYMOND LAPOINTE,\n\n Plaintiff, Appellant,\n\n... | HOWARD | LYNCH | LIPEZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628865/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,387 | Lynn R. RÍOS-CAMPBELL, Plaintiff, Appellant, v. U.S. DEPARTMENT OF COMMERCE Et Al., Defendants, Appellees. | Rios-Campbell v. U.S. Dept. of Commerce | 2019-06-13 | 18-1420P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Selya, Lynch", "parties": "", "opinions": [{"author": "SELYA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1420\n\n LYNN R. RÍOS-CAMPBELL,\n\n Plaintiff, Appellant,\n... | TORRUELLA | SELYA | LYNCH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629387/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,630,261 | ZURICH AMERICAN INSURANCE COMPANY, Plaintiff, Appellant, v. ELECTRICITY MAINE, LLC ; Emile Clavet; Kevin Dean; Spark HoldCo, LLC ; Provider Power, LLC ; Katherine Veileux and Jennifer Chon, Individually and Behalf of All Other Similarly Situated Parties, Defendants, Appellees. | Zurich American Insurance Co. v. Electricity Maine, LLC | 2019-06-17 | 18-1968P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Boudin, Barron", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1968\n\n ZURICH AMERICAN INSURANCE COMPANY,\n\n Plaintiff, Appell... | HOWARD | BOUDIN | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630261/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,630,262 | United States v. Mendez-Baez | 2019-06-17 | 18-1732P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Howard, Chief Judge, Kayatta and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "HOWARD, Chief Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNo. 18-1732\n\n UNITED STATES OF AMERICA,\n\n ... | HOWARD | KAYATTA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630262/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,630,263 | Karen Liliana RIVAS-DURÁN, Et Al., Petitioners, v. William P. BARR, United States Attorney General, Respondent. | Rivas-Duran v. Barr | 2019-06-17 | 17-1782P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Torruella, Kayatta", "parties": "", "opinions": [{"author": "TORRUELLA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1782\n\n KAREN LILIANA RIVAS-DURÁN, ET AL.,\n\n Pet... | HOWARD | TORRUELLA | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630263/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,619,568 | United States v. Kevin Joniel MÉNDEZ-BÁEZ | United States v. Méndez-Báez | 2019-06-17 | No. 18-1732 | U.S. Court of Appeals for the First Circuit | {"judges": "Barron, Howard, Kayatta", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8598818/", "author_raw": ""}]} | BARRON | HOWARD | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8619568/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,289 | David GIGUERE, on His Own Behalf and on Behalf of All Others Similarly Situated, Plaintiff, Appellee/Cross-Appellant, Kellon Alexis; Sylvia Ouellette ; Linda Perry; Lee Southwick; Kimberly Farrell ; Mary Feeley ; Lindsay Gagne; Jerry Garcia; Crystal Jackman; Ryan Jarrell; Renee Jordan ; Christine Poore; Brie Gaia Reed;... | Giguere v. Port Resources Inc. | 2019-06-19 | 18-2073P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Kayatta, Barron", "parties": "", "opinions": [{"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNos. 18-2073\n 18-2163\n\n DAVID GIGUERE, on his own behalf and on behalf of all others\n ... | LYNCH | KAYATTA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631289/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,631,290 | Mark W. EVES, Plaintiff, Appellant, v. Paul R. LEPAGE, Defendant, Appellee. | Eves v. LePage | 2019-06-19 | 16-1492P2 | U.S. Court of Appeals for the First Circuit | {"judges": "Before Howard, Chief Judge, Torruella, Stahl, Lynch, Thompson, Kayatta, and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "Judge Kayatta is recused and did not participate in", "type": "010combined", "text": "United States Court of Appeals\n For the Firs... | HOWARD | TORRUELLA | STAHL | 2 | LYNCH; THOMPSON; KAYATTA; BARRON | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631290/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||
4,631,526 | Maine Pooled Disability Trust v. Hamilton | 2019-06-20 | 18-1223P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Thompson, Kayatta, and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "KAYATTA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1223\n\n MAINE POOLED DISABILITY TRUST;\n\n ... | THOMPSON | KAYATTA | BARRON | 1 | {} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631526/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,631,540 | AcBel Polytech, Inc. v. Fairchild Semiconductor Int'l | 2019-06-20 | 18-1088P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Torruella, Kayatta, and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "TORRUELLA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNos. 18-1088,\n 18-1121\n\n ACBEL POLYTECH, INC., indivi... | TORRUELLA | KAYATTA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4631540/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,444,014 | MAINE POOLED DISABILITY TRUST Yvonne R. Richardson, by her Conservator Barbara Carlin v. Ricker HAMILTON, in his official capacity as Commissioner of Maine Department of Health and Human Services | Me. Pooled Disability Trust v. Hamilton | 2019-06-20 | No. 18-1223 | U.S. Court of Appeals for the First Circuit | {"judges": "Barron, Kayatta, Thompson", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415449/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest... | BARRON | KAYATTA | THOMPSON | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444014/ | Published | 0 | 1 | 1 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,029 | ACBEL POLYTECH, INC., individually and as assignee of EMC Corporation, Plaintiff-Appellant/Cross-Appellee v. FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC., Fairchild Semiconductor Corporation, Defendants-Third Party Plaintiffs-Appellees/Cross-Appellants, Synnex Electronics Hong Kong Ltd., Synnex Technology International ... | Acbel Polytech, Inc. v. Fairchild Semiconductor Int'l, Inc. | 2019-06-20 | Nos. 18-1088; 18-1121 | U.S. Court of Appeals for the First Circuit | {"judges": "Barron, Kayatta, Torruella", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415466/", "author_raw": ""}]} | BARRON | KAYATTA | TORRUELLA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444029/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,442 | In RE: The FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as Representative for the Commonwealth of Puerto Rico; The Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority, Debtors. Ambac Assurance Corporation, Plaintiff, Appellan... | Ambac Assurance Corp. v. Commonwealth (In Re Fin. Oversight & Mgmt. Bd. for Puerto Rico) | 2019-06-24 | 18-1214P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Lipez, Kayatta", "parties": "", "opinions": [{"author": "KAYATTA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1214\n\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\nRICO, as representat... | TORRUELLA | LIPEZ | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632442/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,633,230 | Rolando PENATE, Plaintiff, Appellee, v. Anne KACZMAREK, Defendant, Appellant, Kris Foster ; Randall Ravitz; Joseph Ballou ; Robert Irwin; Randy Thomas; Sonja Farak; Sharon Salem; James Hanchett; Julie Nassif; Linda Han ; Estate of Kevin Burnham; Steven Kent; John Wadlegger; Gregg Bigda; Edward Kalish; City of Springfie... | Penate v. Kaczmarek | 2019-06-26 | 18-2261P | U.S. Court of Appeals for the First Circuit | {"judges": "Barron, Kayatta, Lynch", "parties": "", "opinions": [{"author": "of Massachusetts, Inc., Emma Quinn-Judge, Monica Shah, and Zalkind", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-2261\n\n ROLANDO PENATE,\n\n ... | BARRON | KAYATTA | LYNCH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4633230/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,633,231 | Ralph FAIELLA, Plaintiff, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant, Appellee. | Faiella v. Fed. Natl Mortgage Assoc. | 2019-06-26 | 18-1063P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Selya, Torruella", "parties": "", "opinions": [{"author": "SELYA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1063\n\n RALPH FAIELLA,\n\n Plaintiff, Appellant,\n\... | HOWARD | SELYA | TORRUELLA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4633231/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,634,777 | Harold SHURTLEFF, and Camp Constitution, a Public Charitable Trust, Plaintiffs, Appellants, v. CITY OF BOSTON, and Gregory T. Rooney, in His Official Capacity as Commissioner of the City of Boston Property Management Division, Defendants, Appellees. | Shurtleff v. City of Boston | 2019-06-27 | 18-1898P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Selya, Lynch", "parties": "", "opinions": [{"author": "TORRUELLA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1898\n\n HAROLD SHURTLEFF, and CAMP CONSTITUTION,\n a public ... | TORRUELLA | SELYA | LYNCH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4634777/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,634,778 | METZLER ASSET MANAGEMENT GMBH, on Behalf of Itself and All Other Similarly Situated Parties; Erste-Sparinvest Kapitalanlagegesellschaft mbH, on Behalf of Itself and All Other Similarly Situated Parties, Plaintiffs, Appellants/Cross-Appellees, v. Stuart A. KINGSLEY; George A. Scangos; Paul J. Clancy ; Biogen Inc., Defen... | Metzler Asset Mgmt. GMBH v. Kingsley | 2019-06-27 | 18-1369P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Stahl, Barron", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNos. 18-1369, 18-1472\n\nMETZLER ASSET MANAGEMENT GMBH, on behalf of itself and all other\n ... | LYNCH | STAHL | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4634778/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,625,561 | Sokolow v. Palestine Liberation Organization | 2019-06-03 | 15-3135(L) | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: LEVAL AND DRONEY, Circuit Judges, AND KOELTL, District Judge.", "parties": "", "opinions": [{"author": "Judge John G. Koeltl, of the United States District Court for the Southern District of New", "type": "010combined", "text": "15-3135(L)\nSokolow v. Palestine Liberation Organization\n\n\n ... | LEVAL | DRONEY | KOELTL | 1 | {"LEVAL": ", Circuit", "DRONEY": ", Circuit", "KOELTL": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625561/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,627,303 | UNITED STATES of America, Appellee, v. Michael O'BRIEN, AKA Jeremy Soto, AKA Stephen Conte, AKA George Manolas, Defendant-Appellant. | United States v. O'Brien | 2019-06-07 | Docket 17-2087-cr; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Kearse, Livingston, Carney", "parties": "", "opinions": [{"author": "KEARSE, Circuit Judge:", "type": "010combined", "text": "17-2087-cr\n USA v. O'Brien\n\n\n\n 1 UNITED STATES COURT OF APPEALS\n\n 2 FOR THE SECOND CIRCUIT\n\n 3 ... | KEARSE | LIVINGSTON | CARNEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4627303/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,188 | EVANSTON INSURANCE COMPANY, Plaintiff-Appellant, v. WILLIAM KRAMER & ASSOCIATES, LLC, Defendant-Appellee. | Evanston Insurance Co. v. William Kramer & Associates, LLC | 2019-06-11 | Docket 16-2082; August Term, 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Leval, Raggi, Lohier", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "16-2082\n Evanston Insurance Co. v. William Kramer & Associates, LLC\n\n 1 UNITED STATES COURT OF APPEALS\n 2 FOR THE SECOND CIRCUIT\n 3\n 4 ... | LEVAL | RAGGI | LOHIER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628188/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,628,561 | Mark A. GUTERMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. COSTCO WHOLESALE CORPORATION, Defendant-Appellee. | Guterman v. Costco Wholesale Corp. | 2019-06-12 | 18-3184; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Livingston, Lynch, Per Curiam, Sullivan", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "18‐3184\nGuterman v. Costco Wholesale Corp.\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n ... | LIVINGSTON | LYNCH | SULLIVAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4628561/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,079 | UNITED STATES of America, Appellee, v. Souleymane BALDE, Defendant-Appellant. | United States v. Balde | 2019-06-13 | Docket 17-3337-cr; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Hall, Lynch, Gardephe", "parties": "", "opinions": [{"author": "GERARD E. LYNCH, Circuit Judge:", "type": "010combined", "text": "17-3337-cr\nUnited States v. Balde\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n\n ... | HALL | LYNCH | GARDEPHE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629079/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,080 | Eric HU, NY Drilling, Inc., and 888 Consulting Corp., Plaintiffs-Appellants, v. the CITY OF NEW YORK, Dennis Burkart, Jose L. Espaillat, Michael Camera, Rafael Collis, Salvatore Concialdi, Robert Turner, Cesar Romero, Rick D. Chandler, Muhammad Imran, D. Eric Hoyt, Defendants-Appellees, John/Jane Does, Nos. 1-10, Defen... | Hu v. City of New York | 2019-06-13 | Docket 18-737-cv; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Jacobs, Lynch, Hall", "parties": "", "opinions": [{"author": "J. HALL, District Judge:", "type": "010combined", "text": "18‐737‐cv\n Hu v. City of New York\n\n\n 1 UNITED STATES COURT OF APPEALS\n 2 FOR THE SECOND CIRCUIT\n 3 ... | JACOBS | LYNCH | HALL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629080/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,081 | Jorge Yarur BASCUÑÁN, Tarascona Corp., Hofstra Corp., Inmobiliaria Milano S.A., Inmobiliaria E Inversiones Tauro S.A., Inversiones T & v S.A., Plaintiffs-Appellants, v. Daniel Yarur ELSACA, Cristían Jara Taito, Oscar Bretón Dieguez, GM & E Asset Management S.A., Fintair Finance Corp., Euweland Corp., Hay's Finance Corp... | Bascuñán v. Elsaca | 2019-06-13 | Docket 18-2731; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Wesley, Livingston, Brodie", "parties": "", "opinions": [{"author": "WESLEY, Circuit Judge:", "type": "010combined", "text": "18‐2731\nBascuñán v. Elsaca\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n _______... | WESLEY | LIVINGSTON | BRODIE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629081/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,629,675 | W.A., M.S., Individually and on Behalf of W.E., Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants, v. HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, Defendant-Counter-Claimant-Appellant-Cross-Appellee. | W.A., M.S. v. Hendrick Hudson Central School District | 2019-06-14 | 17-3248 (L) | U.S. Court of Appeals for the Second Circuit | {"judges": "Kearse, Jacobs, Hall", "parties": "", "opinions": [{"author": "HALL, Circuit Judge:", "type": "010combined", "text": "17-3248 (L)\nW.A., M.S. v. Hendrick Hudson Central School District\n\n In the\n United States Court of Appeals\n ... | KEARSE | JACOBS | HALL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4629675/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,630,421 | Gerard Patrick MATTHEWS, Petitioner, v. William P. BARR, United States Attorney General, Respondent. | Matthews v. Barr | 2019-06-18 | Docket 16-3145; August Term, 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Hall, Carney, Koeltl", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888759/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opini... | HALL | CARNEY | KOELTL | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4630421/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,223 | Tullie HYMAN, Petitioner-Appellee, v. William D. BROWN, Superintendent, Respondent-Appellant | Hyman v. Brown | 2019-06-24 | 16-2723-pr; August Term 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Jacobs, Raggi, Droney", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888785/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/... | JACOBS | RAGGI | DRONEY | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632223/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,632,224 | BOZZUTO'S INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. | Bozzuto's Inc. v. Nat'l Labor Relations Bd. | 2019-06-24 | Docket 18-125(L); 18-331(XAP); August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Kearse, Livingston, Carney", "parties": "", "opinions": [{"author": "KEARSE, Circuit Judge:", "type": "010combined", "text": "18-125(L)\n Bozzuto's Inc. v. NLRB\n\n\n\n\n 1 UNITED STATES COURT OF APPEALS\n\n 2 FOR THE SECOND CIRCUIT\n\n 3 ... | KEARSE | LIVINGSTON | CARNEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4632224/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 6 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
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